Date: 20090527
Dockets: A-378-08
A-379-08
A-380-08
Citation: 2009 FCA 175
CORAM: RICHARD C.J.
SEXTON J.A.
SHARLOW
J.A.
A-378-08
BETWEEN:
THE INFORMATION COMMISSIONER
OF CANADA
Appellant
and
THE MINISTER OF NATIONAL DEFENCE
Respondent
A-379-08
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE PRIME MINISTER OF CANADA
Respondent
A-380-08
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE MINISTER OF TRANSPORT CANADA
Respondent
Heard at Ottawa, Ontario, on May 27, 2009.
Judgment
delivered from the Bench at Ottawa, Ontario, on May 27, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date: 20090527
Dockets: A-378-08
A-379-08
A-380-08
Citation: 2009 FCA 175
CORAM: RICHARD
C.J.
SEXTON
J.A.
SHARLOW J.A.
A-378-08
BETWEEN:
THE
INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE MINISTER
OF NATIONAL DEFENCE
Respondent
A-379-08
BETWEEN:
THE
INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE PRIME
MINISTER OF CANADA
Respondent
A-380-08
BETWEEN:
THE
INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE MINISTER
OF TRANSPORT CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on May 27, 2009)
SHARLOW J.A.
[1]
These
are three appeals by the Information Commissioner of Canada of a judgment of
Justice Kelen (2008 FC 766) dismissing the applications for judicial review of
the refusal of the Prime Minister of Canada, the Minister of National Defence,
and the Minister of Transport to follow the Information Commissioner’s
recommendation to release certain records to a person who requested them under
the Access to Information Act, R.S.C. 1985, c. A-1.
[2]
The
first question raised in these appeals relates to the meaning of the phrase
“government institution” as defined in section 3 of the Access to
Information Act. That phrase by definition includes the Privy Council
Office, the Department of National Defence, and the Department of Transport.
The question is whether those government institutions include the office of the
member of the Privy Council who presides over them, namely, the Prime
Minister’s office, the office of the Minister of National Defence, and the office
of the Minister of Transport, respectively.
[3]
A
second question arises if the answer to the first question is no. The second
question is, in what circumstances is a record that is physically located in
the office of the Prime Minister or a Minister nevertheless under the control
of the government institution over which he or she presides?
[4]
In
the decisions under appeal, Justice Kelen concluded that the answer to the
first question is no. Specifically, he found that the Prime Minister’s office is
not part of the Privy Council Office, the office of the Minister of National
Defence is not part of the Department of National Defence, and the office of
the Minister of Transport is not part of the Department of Transport.
[5]
These
conclusions reflect Justice Kelen’s interpretation of the relevant provisions of
the Access to Information Act, which are analyzed in detail in his
reasons. Despite the able submissions of counsel for the Information
Commissioner, we are not persuaded that Justice Kelen erred in law in reaching
this conclusion.
[6]
We
acknowledge the force of the legal arguments made by the Information
Commissioner, particularly the argument that the head of a government
institution is, as a matter of common sense and in accordance with the ordinary
meaning of words, a part of that government institution.
[7]
However,
it appears to us that the Access to Information Act was drafted on the
basis of a well understood convention that the Prime Minister’s office is an
institution of government that is separate from the Privy Council Office, and
that the offices of Ministers are institutions of government that are separate
from the departments over which the Ministers preside. In our view, that
understanding of the structure of the government forms an important part of the
factual context in which the Access to Information Act was drafted and
should be interpreted. It also explains Justice Kelen’s reliance on the expert
evidence to which he referred when engaged in the exercise of statutory
interpretation.
[8]
As
to the second question, Justice Kelen’s reasons contain a lengthy analysis of
the relevant jurisprudence, which led him to conclude that in this case, the
question of control of any of the documents within the physical control of the
Prime Minister or a Minister should be determined by asking, first, whether the
contents of the document relate to a departmental matter and second, whether
the relevant government institution could reasonably expect to obtain a copy of
the document upon request. The document would be under the control of the
government institution if, but only if, the answer to both questions is yes.
[9]
We
agree with Justice Kelen that these two questions were adequate to determine
whether the records in this case were under the control of a government
institution. Again, we acknowledge the force of the argument of the Information
Commissioner that the second question proposed by Justice Kelen invited a
speculative response, because no official of the government institution asked
for copies of the records in issue. However, in our view it was open to Justice
Kelen to answer those questions by drawing reasonable inferences from the evidence
before him, as he did.
[10]
For
these reasons, each of these three appeals will be dismissed with costs. The
cross-appeal in A-379-08 will be determined with the appeal in A-413-08. A copy
of these reasons will be placed in each of the Court Files A-378-08, A-379-08
and A-380-08.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-378-08
STYLE OF CAUSE: The
Information Commissioner of Canada v. The Minister of National Defence
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 27, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (RICHARD C.J., SEXTON J.A. SHARLOW J.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
|
Daniel Brunet
Marlys Edwardh
Adriel Weaver
|
FOR THE APPELLANT
|
|
Christopher
Rupar
Mandy E. Moore
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Information
Commissioner of Canada
Ottawa, Ontario
Marlys Edwardh Barristers Professional
Corp.
Toronto, Ontario
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-379-08
STYLE OF CAUSE: The
Information Commissioner of Canada v. The Prime Minister of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May
27, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (RICHARD
C.J., SEXTON J.A. SHARLOW J.A.)
DELIVERED FROM THE BENCH BY: SHARLOW
J.A.
APPEARANCES:
|
Daniel Brunet
Marlys Edwardh
Adriel Weaver
|
FOR THE APPELLANT
|
|
Christopher Rupar
Mandy E. Moore
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Information Commissioner of Canada
Ottawa, Ontario
Marlys Edwardh Barristers Professional
Corp.
Toronto, Ontario
|
FOR THE
APPELLANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-380-08
STYLE OF CAUSE: The
Information Commissioner of Canada v. The Minister of Transport Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May
27, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (RICHARD
C.J., SEXTON J.A. SHARLOW J.A.)
DELIVERED FROM THE BENCH BY: SHARLOW
J.A.
APPEARANCES:
|
Daniel Brunet
Marlys Edwardh
Adriel Weaver
|
FOR THE APPELLANT
|
|
Christopher Rupar
Mandy E. Moore
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Information Commissioner of Canada
Ottawa, Ontario
Marlys Edwardh Barristers Professional
Corp.
Toronto, Ontario
|
FOR THE
APPELLANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
Email this Content