Date: 20010301
Docket: A-675-00
Neutral Citation: 2001 FCA 26
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
MERIBETH MORRIS, RANDY MYLYK and EMECHETE ONUOHA
Respondents
- and -
DAVID PUGLIESE
Added Party
Heard at Ottawa, Ontario, on Tuesday, February 13, 2001
Judgment of the Court delivered at Ottawa, Ontario, Thursday, March 1, 2001
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
NOËL J.A.
EVANS J.A.
Date: 20010301
Docket: A-675-00
Neutral Citation: 2001 FCA 26
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
MERIBETH MORRIS, RANDY MYLYK and EMECHETE ONUOHA
Respondents
- and -
DAVID PUGLIESE
Added Party
REASONS FOR JUDGMENT OF THE COURT
[1] This is an appeal from the decision of McKeown J. (reported at [2000] F.C.J. No. 1648 (Q.L.)) in which he dismissed the Information Commissioner's motion to strike out respondents' application for judicial review and granted the respondents' motion for interim relief prohibiting the Commissioner from enforcing subpoenas duces tecum until the final determination of the application for judicial review.
[2] The relevant facts are set out in detail in the decision under appeal and need not be repeated.
[3] By his application, the Attorney General and the individual respondents sought inter alia the following relief:
| (a) a declaration that the records which are copies of minutes or documents produced from the M5 management meetings for 1999 and are under the control of the Office of the Minister of National Defence are not records under the control of the Department of National Defence within the meaning of that phrase in s. 2(1) of the Access to Information Act, R.S.C. 1985, c. A-1, as amended (the Act); |
| (b) a declaration that personal notes made by Emechete Onuoha, Meribeth Morris and Randy Mylyk, in their notebooks, being notes of some things said during the M5 management meetings for 1999, are not records under the control of the Department of National Defence, within the meaning of that phrase in s. 2(1) of the Act; |
| (c) certiorari to quash the subpoenas duces tecum issued by J. Alan Leadbeater, a person authorized by the Commissioner to exercise his powers and duties, to Emechete Onuoha, Meribeth Morris and Randy Mylyk on August 11, 2000; |
| (d) prohibition to prohibit the Commissioner from requiring Emechete Onuoha, Meribeth Morris and Randy Mylyk to give oral evidence or produce documents which are not under the control of the Department of National Defence; |
| (e) an Order, pursuant to section 18.2 of the Federal Court Act prohibiting, until the final determination of this application, the Commissioner from requiring Emechete Onuoha, Meribeth Morris and Randy Mylyk, to give evidence or produce documents pursuant to the subpoenas duces tecum hereinbefore referred to. |
[4] The purport of the judicial review application can be understood by the fact that the Act only provides access with respect to information in records "under the control of a government institution" and while the Department of National Defence is listed in Schedule I of the Act as a government institution, the Office of the Minister of National Defence is not.
[5] Before the application could be heard, the Commissioner moved to strike it out peremptorily. It was argued on behalf of the Commissioner that the declaratory relief sought by paragraphs 2(a) and (b) was precluded by the procedure set out in the Act and that the relief sought by paragraphs 2(c), (d) and (e) was frivolous, vexatious and bereft of any chance of success.
[6] By judgment rendered October 19, 2000, McKeown J. denied the motion brought by the Commissioner in its entirety and granted the interim relief sought by the respondents. The present appeal brought by the Commissioner is from the foregoing decision.
[7] In support of his appeal, the Commissioner argues that the motions Judge committed errors of fact and law in dismissing his application to strike out the respondents' application for judicial review, and in granting the interim relief sought by the respondents.
[8] In our view, the appeal against the motions Judge's refusal to strike out the respondents' application cannot succeed. Contrary to the view adopted by the Commissioner, both before the motions Judge and on appeal, the Act does not expressly or by necessary implication oust the Court's jurisdiction under section 18.1 of the Federal Court Act to grant a declaration on an application for judicial review as to whether documents sought by a requester are "under the control of a government institution" within the meaning of the Act and hence subject to the right of access created by that Act.
[9] It follows that the motions Judge correctly refused to strike the declaratory relief sought by the respondents and the related remedy that the subpoenas be quashed in the event that the declaration sought is granted. That being said, the Judge hearing the application for judicial review is not precluded from refusing relief in the exercise of his or her discretion on the ground, for example, that it would be premature for the Court to intervene prior to the completion of the Commissioner's investigation and recommendations, especially if there were factual issues to be determined.
[10] With respect to the second branch of the appeal, there was evidence from which the motions Judge could conclude that the first of the three tests set out in [1974] 1 S.C.R. 311">RJR Macdonald Inc. v. Canada (A.G.), [1974] 1 S.C.R. 311 had been met. However, the finding that irreparable harm had been established was, in our view, arrived at in error.
[11] The motions Judge said at paragraph 59 of his reasons:
| In the case before me, it is arguable that the Commissioner might be required to disclose certain of the information obtained by reason of section 63(1) of the Act. It is a very broad section. While there are several other sections which require the Commissioner to keep documents confidential, it is arguable the he may have the power to release certain confidential documents in order to further his investigation. Notwithstanding the confidentiality provisions placed on the Commissioner's office, there is irreparable harm to the Applicants if the material in question is released in whole or in part prior to the determination of the question on judicial review. |
[12] First, the fact that irreparable harm may arguably arise does not establish irreparable harm. What the respondents had to prove, on a balance of probabilities, is that irreparable harm would result from compliance with the subpoenas issued on behalf of the Commissioner (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at para. 35). The alleged harm may not be speculative or hypothetical (Imperial Chemical Industries PLC v. Apotex Inc., [1990] 1 F.C. 211 (C.A.)).
[13] Second, subsection 63(1) is a general provision; it authorizes the disclosure of any information for the stated purposes. Subsection 63(1) provides:
| 63.(1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information
| (a) that, in the opinion of the Commissioner, is necessary to |
| (i) carry out an investigation under this Act, or |
| (ii) establish the grounds for findings and recommendations contained in any report under this Act; or |
| (b) in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom. |
|
63.(1) Le Commissaire à l'information peut divulguer, ou autoriser les personnes agissant en son nom ou sous son autorité à divulguer, les renseignements :
| a) qui, à son avis, sont nécessaires pour : |
| (i) mener une enquête prévue par la présente loi, |
| (ii) motiver les conclusions et recommandations contenues dans les rapports et comptes rendus prévus par la présente loi; |
| b) dont la divulgation est nécessaire, soit dans le cadre des procédures intentées pour infraction à la présente loi ou pour une infraction à l'article 131 du Code criminel (parjure) se rapportant à une déclaration faite en vertu de la présente loi, soit lors d'un recours en révision prévu par la présente loi devant la Cour ou lors de l'appel de la décision rendue par celle-ci. |
|
[14] While the motions Judge acknowledged that there were other provisions in the Act intended to protect information from being disclosed, he did not refer to any of them. Subsection 64(a) is one such provision. It provides:
| 64. In carrying out an investigation under this Act and in any report made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose,
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or (my emphasis)
|
64. Lors des enquêtes prévues par la présente loi et dans la préparation des rapports au Parlement prévus aux articles 38 ou 39, le Commissaire à l'information et les personnes agissant en son nom ou sous son autorité ne peuvent divulguer et prennent toutes les précautions pour éviter que ne soient divulgués :
a) des renseignements qui, par leur nature, justifient, en vertu de la présente loi, un refus de communication totale ou partielle d'un document; (mon souligné)
|
[15] This provision prohibits the Commissioner from disclosing specific information with respect to which an exemption can be claimed under the Act. It applies to the conduct of an investigation, that is, the stage at which subsection 63(1) also applies and the stage at which the proceedings stood when the stay was granted.
[16] The general authority to disclose information under subsection 63(1) and the prohibition enacted by subsection 64(a) with respect to information coming under an exemption cannot both operate at once. The rule for resolving a conflict between a general enactment and a particular enactment within the same statute has long been established:
| The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.(Pretty v. Solly (1859), 26 Beav. 606, 53 E.R., 1021 at 1034) |
Applying this rule, subsection 64(a) must be construed as excluding the application of subsection 63(1) insofar as the information specified therein is concerned. It was therefore incumbent upon the motions Judge to consider the effect of subsection 64(a).
[17] The exemptions which the Commissioner must be mindful of in complying with subsection 64(a) are far reaching and cover all unwarranted disclosures which the respondents can reasonably apprehend from compliance with the subpoenas having regard to the type of information that is sought (see paras. 12, 13, 14, 15, 31 and 32 of the motions Judge's reasons). The information protected by subsection 64(a) includes personal information with respect to identifiable individuals (s. 19), government secrets (s. 13) and intelligence (s. 15), and confidential third party information of a commercial, financial, technical or scientific nature (s. 20).
[18] Counsel for the respondents pointed out that it is the Commissioner who is called upon under subsection 64(a) to decide if information is protected from disclosure by an authorized exemption. No doubt, that is so. However, it would be contrary to the scheme of the Act for the Commissioner to disclose information gathered in the course of his investigation. Section 35 requires the Commissioner's investigations to be conducted in private before officers who must, according to section 61, meet security requirements and section 62 prohibits the Commissioner and persons acting on his behalf from disclosing any information that comes to their knowledge in the performance of their duties.
[19] Other than submitting that the provisions of the Act were "arguably" insufficient to prevent the disclosure of exempt information, the respondents presented no evidence before the motions Judge that these provisions are in fact, ineffective or susceptible to breaches. The evidence before the motions Judge was that confidential information of the type here in issue has been conveyed to the Commissioner on a without prejudice basis in the past and there is no suggestion that any harm of the type now alleged, resulted. Indeed, the record does not reveal one single instance where protected information was improperly released since the creation of the Office of the Commissioner.
[20] Finally, the respondents argued that even if the information sought by the subpoenas is adequately protected from disclosure, the fact that this information must nevertheless be reviewed by someone within the Office of the Commissioner gives rise to irreparable harm.
[21] There is no merit to this argument. Obviously, information must be reviewed by someone to give effect to the scheme set up by Parliament in implementing the Act. It cannot be seriously argued for instance that irreparable harm results when an authorized officer reviews information with the view of ensuring that personal information and other exempt information is protected from disclosure.
[22] The decision of the Supreme Court in 14371 Canada Inc. v. Québec [A.G.], [1994] 2 S.C.R. 319 brought to our attention by the respondents rested on an entirely different set of facts. It dealt with intrusive searches of residential and business premises by the tax authorities under constitutionally suspect statutory authority. The Court in its reasons noted on more than one occasion that searches of private property are far more intrusive than a demand for production of documents, thereby giving rise to a greater need for the protection of the privacy interests of those concerned (see pages 380, 381 and 382). That is the context in which the majority concluded that irreparable harm would result if the seized documents were reviewed by the tax authorities, pending the determination of the constitutional validity of the seizure. It is clear that a different conclusion would have been reached if the information in issue had been obtained by less intrusive means.
[23] It is apparent from the reasons of the motions Judge that his conclusion as to the balance of inconvenience was premised on irreparable harm having been established by the respondents (see paragraph 60 of the motions Judge's reasons). In the absence of such harm, this balance dictates that the Commissioner's investigation be allowed to continue and the subpoenas complied with, pending the outcome of the judicial review application.
[24] This result does not make the judicial review application moot. The situation here is different from the one which prevailed in Bisaillon v. Canada, [1999] F.C.J. No. 898 (F.C.A.). The avowed purpose of the judicial review application is to clarify the long standing position of the Attorney General that documents under the control of the Prime Minister's Office or a Minister's Office as the case may be, are not under the control of a government institution and hence not subject to the Act. The request that the subpoenas be quashed is incidental relief that is entirely dependent on the respondents obtaining the declaration which they seek. In the absence of irreparable harm, there is no reason why the subpoenas should not be complied with pending the Court's pronouncement.
[25] As noted earlier, there was evidence from which the motions Judge could conclude that the judicial review application gives rise to a serious issue. He said:
| [52] In my view, there is an arguable case that the declaration sought could be granted since it is arguable that neither the PMO nor the office of the Minister of National Defence are government institutions within the meaning of that phrase in the Act, and that the records sought by the requesters are not under the control of the PCO or DND respectively. There is a serious issue to be tried. |
[26] However, he added:
| [53] ..., there is the related issue of whether or not the individual Applicants have relevant evidence to give in answer to the subpoenas issued by the Commissioner. The records are not in possession of either the PCO nor DND. |
The motions Judge went on to state that the individual respondents and the individual respondent in appeal A-674-00 (being released simultaneously) have sworn that they have knowledge of documents under the control of the Prime Minister's Office and the Office of the Minister of National Defence but no knowledge of documents under the control of the Privy Council Office or the Department of National Defence. "Accordingly", the motions Judge stated at the close of paragraph 54, "... it is arguable that they have no relevant evidence to give concerning the Commissioner's inquiry.".
[27] To the extent that the reasons of the motions Judge can be read as holding that it is arguable that the individual respondents have no relevant evidence to give in answer to the subpoenas issued by the Commissioner because they swore that the information in their possession is not under the control of a government institution, he was in error.
[28] Control under the Act is not a defined term. As was stated by Létourneau J.A. in Canada Post Corporation v. Canada (Public Works), [1995] F.C.J. No. 241 at para. 32:
| The notion of control referred to in subsection 4(1) of the Access to Information Act (the Act) is left undefined and unlimited. Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or "de jure" and "de facto" control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen's right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government. |
Whatever view the individual respondents may have about where control of the documents lies, it is not for them to decide where control lies for purposes of the Act. As the subpoenas have been issued for a bona fide purpose, it is not arguable that they can be set aside merely because the individual respondents believe that they have no relevant evidence to give (the King v. Baines, 1 K.B. 258).
[29] Further, contrary to the view seemingly held by the motions Judge, the contents of the documents sought by the Commissioner and the circumstances in which they came into being may be relevant to determining whether they are under the control of the Department of National Defence which, as noted, is a government institution for purposes of the Act.
[30] The appeal is allowed in part and the order of the motions Judge prohibiting the Information Commissioner of Canada from requiring Ms. Meribeth Morris, Mr. Randy Mylyk and Mr. Emechete Onuoha to attend to give evidence and bring with them documents
pursuant to the subpoena duces tecum issued on August 11, 2000, is set aside. The appeal is otherwise dismissed. Having regard to this result, no costs are awarded.
"J. Richard"
C.J.
"Marc Noël"
J.A.
"John M. Evans"
J.A
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