Canada (Information Commissioner) v. Canada (Attorney General), docket A-674-00

Date: 20001108

Docket: A-674-00

PRESENT: THE HONOURABLE MARC NOËL

BETWEEN:

THE INFORMATION COMMISSIONER OF CANADA

Appellant

- and -

THE ATTORNEY GENERAL OF CANADA

and BRUCE HARTLEY

Respondents

REASONS FOR ORDER

NOËL J.A.

[1]      The Information Commissioner of Canada (the "Commissioner") moves for an order staying the judicial review application pending before the Trial Division in court file T-1640-00 as well as the operation of paragraph 4 of the order of McKeown J. dated October 19, 2000, which provides for this application to proceed on an expedited basis.

[2]      The relevant facts are set out in detail in the decision of McKeown J. and as none of these facts are in issue, I need not restate them. Suffice to say for present purposes that the Commissioner in the course of investigating a complaint made pursuant to the Access to Information Act R.S.C. 1985, c. A-1 (the "Act") caused a subpoena to be issued to the individual respondent, Bruce Hartley, requiring him to bring with him and produce at a stated time and place:

[3]      Shortly before the due date, the Attorney General of Canada and the individual respondent filed a judicial review application before the Trial Division seeking to have the subpoena set aside essentially on the ground that the records sought were not under the control of a "government institution" within the meaning of subsection 2(1) of the Act. The respondents also sought an interim order pursuant to subsection 18.2 of the Federal Court Act suspending the enforcement of the subpoena pending the final determination of the application.

[4]      In response, the Commissioner moved to strike the application, alleging that it was a frivolous and vexatious attempt by the Attorney General to pre-empt the valid exercise of his statutory duties. The respondents' application and the Commissioner's cross-motion were heard together and by a decision rendered on October 19, 2000, McKeown J. prohibited the enforcement of the subpoena pending the determination of the attack on its validity, expedited the hearing before the Trial Division and dismissed the Commissioner's cross-motion.

[5]      The Commissioner appealed the foregoing decision and now seeks a stay of the proceedings before the Trial Division and of paragraph 4 of the order of McKeown J., pending the final determination of the appeal. The Commissioner also seeks ancillary orders expediting the hearing of his appeal and consolidating the appeal in the present matter (A-674-00) and in court file A-675-00 which raises the same issue. These incidental motions are not being opposed by the respondents.

[6]      In order to succeed, the Commissioner must satisfy me that his appeal raises a serious issue, that irreparable harm will be suffered if the requested stay is not granted and that the balance of convenience favours the grant of the stay.

[7]      Turning to the first requirement, the broad question raised by the Commissioner's appeal is whether Parliament intended the eventual disclosure (or non-disclosure) of the information sought by the complainant in this instance to be governed by the process provided for under the Act or whether the alternative procedure authorized by the order under appeal was also open to the respondents. My preliminary assessment of the merits leads me to the conclusion that the Commissioner has raised a serious issue.

[8]      Keeping in mind that in ascertaining whether this requirement has been met, I should refrain from embarking on a prolonged examination of the merits or from drawing a definitive conclusion (RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at 338), it is sufficient to say that it is at least arguable, having regard to the purpose and scheme of the Act, that Parliament intended the process created thereunder to govern the disclosure (or non-disclosure) of the information in issue in this appeal to the exclusion of the process chosen by the respondents and sanctioned by the motions Judge.

[9]      I did not understand counsel for the respondents during the hearing to press the argument that the issue raised by the Commissioner is not a serious one. He did however submit that it arose before McKeown J. the context of a motion to strike and that the jurisprudence of this Court clearly establishes that this type of issue ought to be dealt with on the merits of the judicial review application and not on a motion to strike (David Bull Laboratories Inc. v. Pharmacia Inc., [1995] 1 F.C.R. 588). Hence, he takes the position that the decision rendered by McKeown J. to the effect that this issue ought to be addressed in the context of the judicial review application rather than on a motion to strike cannot be seriously challenged.

[10]      I need only say in this respect that the rule established in David Bull Laboratories is not absolute. A party may seek to quash a judicial review application by a motion to strike where he or she can show that the application is so clearly improper as to be bereft of any possibility of success (David Bull, supra at 606. See also Moldeveanu v. Canada, [1999] F.C.J. No. 55 at para. 13). This is precisely what the Commissioner attempted to show before McKeown J. and although McKeown J. held against the Commissioner, nothing in the reasons that he gave suggests that the argument advanced by the Commissioner for striking out the respondents' application peremptorily was not serious (see in particular paragraph 61 of the reasons). To the extent that the Commissioner can convince the Court of Appeal that as a matter of law, the Act precludes the process which the motions Judge sanctioned, the David Bull decision will arguably not stand in his way. I therefore conclude that the Commissioner has met the first requirement.

[11]      Turning to irreparable harm, the Commissioner argues that in the absence of a stay, he will be prevented from exercising his statutory duty and the Trial Division will determine the faith of the information which forms the subject matter of the complaint outside the context of the process contemplated by law, that is without the benefit of the Commissioner's investigation, his findings and recommendations.

[12]      In contrast, the only harm of an irreparable nature which the respondents could have complained of is the harm which could have resulted from the release of the information to the Commissioner in circumstances where he has no legal entitlement to it. However, as the Commissioner has not sought to stay the order of McKeown J. insofar as it prohibits the enforcement of the subpoena pending the final determination of the proceedings before the Trial Division, this harm cannot now be envisaged.

[13]      I am satisfied that the Commissioner has met the second requirement. The harm resulting from the failure to exercise a duty mandated by statute in circumstances where that duty ought to have been exercised is by definition irreparable; it is harm which cannot be cured.

[14]      Finally, the balance of convenience also weighs in favour of the grant of the stay. If the stay is granted and the respondents' position is upheld on appeal, nothing will be lost as the order of prohibition against the enforcement of the subpoena remains in force in the interim. If, on the other hand, the judicial review application is allowed to proceed before the Trial Division and the Commissioner eventually prevails on appeal, he will be denied the exercise of the statutory role which the Act confers upon him. As was stated by the Supreme Court in RJR MacDonald, supra at 333, "... courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect."

[15]      An order will therefore issue staying the proceedings in the Trial Division in court file T-1640-00 and the execution of paragraph 4 of the order of McKeown J. dated October 19, 2000. The ancillary requests that the appeal in the present matter (A-674-00) and the appeal in court file A-675-00 be consolidated and that these appeals be expedited in accordance with the schedule submitted by the Commissioner is also granted and an order will issue accordingly.

"Marc Noël"

J.A.