Date: 20101122
Docket: A-458-09
Citation: 2010 FCA 315
CORAM: DAWSON J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
DAVID J. STATHAM
Appellant
and
PRESIDENT OF THE CANADIAN
BROADCASTING CORPORATION
Respondent
and
THE INFORMATION COMMISSIONER OF CANADA
Intervener
REASONS FOR JUDGMENT
DAWSON J.A.
[1] The Access to Information Act, R.S.C.
1985, c. A-1 (Act) provides a right of timely access to information in records
under the control of a government institution. The Act has been held to
enshrine a quasi-constitutional right of access for the purpose of facilitating
democracy. This appeal from a decision of the Federal Court, cited as 2009 FC
1028, 353 F.T.R. 102, raises important issues relating to the exercise of the
powers of the Information Commissioner (Commissioner) during an investigation
of a government institution’s deemed refusal to disclose records. Also at
issue is the availability of recourse to the Federal Court to review a
government institution’s deemed refusal to disclose records. Specifically, when
the Commissioner receives a complaint, investigates an institution's deemed
refusal to disclose records, secures an undertaking from the institution that
the access request will be responded to by a specific date, and issues a final
report to the access requester:
(a) Has
the Commissioner granted a reasonable extension of time to the institution to
respond to the access request so as to in effect "cure" the deemed
refusal?
(b) Can
the access requester apply to the Federal Court to judicially review the institution’s
deemed refusal to disclose records?
[2] For the following reasons I would answer no to the first question
and yes to the second.
The Facts and Procedural
History
[3] The
facts are comprehensively set out in the reasons of the Federal Court. The
following synopsis of the facts is sufficient for the purpose of this appeal.
All sections of the Act referred to in these reasons are set out in the
appendix to the reasons.
[4] On
September 1, 2007, the Canadian Broadcasting Corporation (CBC) became subject
to the provisions of the Act. Between September 1, 2007 and December 12, 2007,
the appellant, Mr. Statham, submitted almost 400 access to information
requests to the CBC.
[5] The
CBC failed to respond to the appellant's requests within 30 days of their
receipt as required by section 7 of the Act. As well, the CBC failed to notify
the appellant that extensions of time to respond were being claimed pursuant to
section 9 of the Act. In consequence, by operation of subsection 10(3) of the
Act, the CBC was deemed to have refused to give access to Mr. Statham.
For ease of reference, subsection 10(3) of the Act provides:
|
Where the head of a government
institution fails to give access to a record requested under this Act or a
part thereof within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have refused to
give access.
|
Le défaut de communication totale ou
partielle d’un document dans les délais prévus par la présente loi vaut décision
de refus de communication.
|
[6] Thereafter,
the appellant submitted approximately 389 complaints to the Commissioner,
alleging that the CBC was deemed to have refused access to requested records.
The Commissioner's office then began its investigation.
[7] The
Commissioner did not investigate the deemed refusals as if there had been a
final refusal to grant access based on exemptions or exclusions under the Act.
To have proceeded in that manner would have required the Commissioner to compel
production of records, seek representations from the CBC concerning disclosure,
and consider the merits of any claimed exemptions or exclusions. Instead, the
Commissioner was of the view that the CBC had been inundated and overwhelmed by
the volume of access requests so that it would require a reasonable amount of
time to respond to them. After discussions with the CBC and Mr. Statham, the
Commissioner recommended that the CBC respond to all of the access requests by
April 1, 2009. The CBC agreed to respond to all of the requests by that date
(commitment date).
[8] On
March 31, 2008, the then Commissioner made his report to the appellant, as
required by subsection 37(2) of the Act. In material part, the report stated:
“[…] the institution has
not responded to your requests, thereby placing itself in a deemed-refusal
situation pursuant to subsection 10(3) of the Act.
Nonetheless, following our
intervention, the institution has provided assurances to our office that,
through its best efforts, it will respond to all of the requests itemized in
the attached Annex on or before April 1, 2009. The target date is based on a number
of factors, most notably the volume of requests and the lack of resources in
the [access to information] office. We also received assurances from the CBC
that it will provide you with the responses as they are completed over the
coming months. Please note that we will regularly monitor the CBC’s progress
in this regard. I consider this to be a reasonable commitment on CBC’s part
to finalize the processing of all of your listed requests.
While your complaints are
valid, I conclude that they are resolved on the basis that CBC has undertaken
to respond to each request on or before April 1, 2009. As each response is
provided to you by the CBC, in the coming months, you do of course have the
right under section 31 of the Act to complain to this office.
In accordance with paragraph
30(1)(a) and subsection 37(5) of the Act, please be advised that having now
received our report on the results of our investigation with respect to these
deemed-refusals to disclose records requested under the Act, section 41
provides that you have the right to apply to the Federal Court for a review of
the Canadian Broadcasting Corporation’s deemed-refusal to deny you access to
the records you requested.
Such an application should name the President of the Canadian Broadcasting
Corporation as respondent and it must be filed with the Court within 45 days of
receiving this letter.”
[Emphasis
added.]
[9] On
May 20, 2008, Mr. Statham commenced an application for judicial review in the
Federal Court pursuant to section 41 of the Act. One application was filed in
respect of all of the access requests. The relief sought by Mr. Statham was:
1.
An
order requiring the CBC to disclose the requested documents by a deadline to be
agreed by the parties or set by the Court.
2.
Costs.
3.
Such
further orders as the Court might deem just or appropriate.
[10] Thereafter,
the Commissioner sought leave to intervene in the application for judicial
review in order to respond to allegations made by the appellant against the
Commissioner's office and to make representations with respect to the
interpretation and administration of the Act. In response to the
Commissioner’s motion the appellant agreed to withdraw his allegations against
the Commissioner. The Commissioner was given leave to intervene in the
application for the purpose of making written and oral submissions to the Court
on the issues of the jurisdiction of the Court and the appropriate remedy in
the event the application was successful.
[11] Following
the Commissioner’s motion, the CBC brought a motion to strike the application
on the ground it was bereft of any chance of success. At the same time the
Commissioner moved for an order either setting aside the application or giving
directions as to the conduct of the proceeding. Prothonotary Tabib found that
Mr. Statham had improperly challenged in a single application several hundred
refusals by the CBC. In exercising her discretion nonetheless to allow the
application to proceed, the Prothonotary observed that:
In the present
instance, the Applicant has eventually made it very clear that the issues
raised in relation to the requests for information concern only the belated and
allegedly unreasonable extension of time imposed by the CBC to respond to the
requests; furthermore, these issues arise only in relation to requests for
information to which no response has been or is received prior to the hearing
of the application on its merits. The Applicant also clearly specified that by
“response” to a request for information, he means communication of the
information, a refusal or a request for additional fees. In short, the
Applicant concedes that for every request for which a response, of any kind,
has been or may be received, up to the start of the hearing, the application is
or will be moot and will be withdrawn. On that basis, this Court will not
be called upon to determine the merits of any actual refusal by the CBC, a task
which undoubtedly would have made it impossible to deal with such numerous and
diverse requests for information in a single proceeding.
[Emphasis
added.]
[12] On
this basis, the application was permitted to proceed. The appellant was
ordered to pay the costs of both motions to the CBC and to the Commissioner.
[13] As
of the commitment date, the CBC had not responded to 38 access requests.
Responses to those access requests were delivered on May 29, 2009 - five days
before the Federal Court heard the application for judicial review.
[14] Notwithstanding
that at the time of the hearing the CBC had delivered responses to all of the
access requests, Mr. Statham continued to prosecute the application, seeking a
declaration that the CBC had acted unreasonably. This was not relief sought in
Mr. Statham’s amended notice of application. The only complaint Mr. Statham
had made to the Commissioner was that the CBC was deemed to have refused to
give access to the requested records.
The Decision of the
Federal Court
[15] The
Judge of the Federal Court who heard the application for judicial review
dismissed the application for disclosure and declined to grant declaratory
relief. He awarded costs in favour of the CBC and the Commissioner; those costs
were to be assessed at the mid-range of column V of the table to Tariff B of
the Federal Courts Rules.
[16] In
coming to this decision the Judge identified three issues to be determined.
They were described by the Judge to be:
a) Is
the application moot, in light of the fact that all [access] requests have been
responded to by the CBC at the time of the hearing?
b) If
the issue is found not to be moot, does the Act allow a deemed refusal
to be cured by the Information Commissioner setting out a new time limit within
which the notice required under sections 7 and 10 must be given? And does this
Court have jurisdiction under section 41 of the Act to judicially review
the determination of a delay for answering [access] requests approved by the [Commissioner]
in the exercise of his power under the Act?
c) Was
the conduct of either one of the parties throughout these proceedings
unreasonable, outrageous, vexatious and reprehensible so as to justify costs on
a solicitor-client basis?
The Judge then went on
to consider each issue.
a. Mootness
[17] The
Judge reviewed the order of Prothonotary Tabib, quoted in material part at
paragraph 11 above. After a discussion of the relevant case law he concluded,
at paragraph 30 of his reasons, that the application for judicial review was
moot because "all the records requested by the applicant had been
disclosed at the time of the hearing." This notwithstanding, the Judge
viewed the application to raise important issues. For that reason he exercised
his discretion to hear the application.
b. The concept of
curing deemed refusals and the jurisdiction of the Federal Court
[18] The
Judge began his discussion of these issues by acknowledging that, under
subsection 10(3) of the Act, the CBC was deemed to have refused access to
all of the records requested by the appellant. This deemed refusal placed Mr.
Statham, the Commissioner and the CBC in the same position as if there had been
an explicit refusal within the meaning of section 7 of the Act. It followed in
the Judge’s view that the appellant had the right to complain to the
Commissioner under paragraph 30(1)(a) of the Act.
[19] The Judge found that once an institution is deemed to have refused
access it cannot “unilaterally relieve itself of that deemed refusal and is
proscribed from remedying it by simply granting itself a further time
extension.” He went on to state that this did not mean “that the deemed
refusal cannot be cured. It is then for the Information Commissioner, having
received a complaint from the person who has been refused access, to
investigate the matter and to make a report.”
[20] The
Judge explained that following the investigation of the complaint, the
Commissioner had the power to issue recommendations under subsection 37(1) of
the Act. In the Judge’s view, expressed at paragraph 36 of his reasons, the
power to issue recommendations:
36. […] encompasses
the right to set a time frame within which an institution has to respond to a
request for documents and to follow up with the institution on the action plan
undertaken by the institution to comply with that time frame. At that stage,
the requirements found in s. 9 of the Act are no longer applicable,
contrary to the applicant's submissions. It is for the Commissioner to assess
the circumstances and to determine a reasonable extension of time to comply
with its recommendations.
[21] The
Judge then considered whether the Commissioner’s actions affected Mr. Statham's
right to apply to the Court under section 41 of the Act. At paragraphs 37 and
38 of his reasons he wrote:
37. Could the applicant come to the
Court, within 45 days after he received the letter from the Commissioner
reporting the results of his investigation of his complaints, to review the
matter pursuant to section 41 of the Act? As previously mentioned, the
relief sought by the applicant is twofold: first, he requested the CBC disclose
those documents that had not yet been disclosed at the time of his amended
application, and second, he asked that the CBC be found to have acted
unreasonably in failing to respond to his access requests in accordance with
the provisions of the Act.
38. As previously mentioned, the first
relief has been overtaken by events. At the time of the hearing, the applicant
had been provided with a response to all of his requests. Despite the ambiguity
of his application, this is clearly what he was seeking; he made it clear
before the Prothonotary that what he meant by a response was either the
communication of the information or a refusal (total or partial) of the
communication. As a result, the issue is not only moot but this Court has no
jurisdiction to entertain the application since he has not been refused what he
was seeking from the CBC.
[Emphasis
added.]
[22] During
oral argument of this appeal, counsel for Mr. Statham agreed that the ratio
decidendi of the Judge’s decision is found in the last sentence of
paragraph 38.
[23] The
Judge then went on, in obiter dicta, to more fully explain the effect at
law of the Commissioner's actions. At paragraphs 39 to 43 of his reasons, the
Judge expressed his view that once the Commissioner and the CBC agreed that the
CBC would respond to all of the access requests by the commitment date, no
application could be brought by the appellant under section 41 of the Act. In
the Judge's words:
39. But I would go even further. It
seems to me the applicant could not apply to the Court while the CBC was still
within the time frame set by the Commissioner. The Commissioner could have
chosen to initiate his investigation, upon the complaint of the applicant, as
if there had been a true refusal. Just as in the case of Canada Information
Commissioner v. Minister of National Defence, supra, he chose
instead to split his investigation and to try to get a response from the
institution, leaving for a second stage the examination of the merits of
whatever response might be provided. As a result, the applicant could not
apply to the Court until April 1, 2009, as it could not yet be said until the
expiry of that delay period granted by the Commissioner that the CBC had
refused access to the records.
40. Section 41 of the Act states
that an applicant may apply to the Court if he or she has been refused access
to a record and has complained to the Commissioner in respect of that refusal.
It is clear from the context of the Act read as a whole and from the
wording of that section that the Court was granted jurisdiction in cases where
access to the record had been denied, in whole or in part. This is consistent
with section 37 of the Act, focused as it is on the actual content of
the response provided by a government institution and its conformity with the Act.
41. Of course, the Commissioner could
have initiated his investigation as if there had been a true refusal, without
giving the CBC any further delay to respond. In such a scenario, the applicant
could have come to the Court and sought a review if the CBC had not complied
with the findings and recommendations of the Commissioner. But this was not the
course of action chosen by the Commissioner. Accordingly, it was premature to
come to the Court before April 1, 2009. In other words, I do not think this
Court has jurisdiction to judicially review the determination of a delay for
answering ATI requests approved by the OIC in the exercise of its power under
the Act.
42. While I have been unable to find any
precedent dealing specifically with this issue, there have been cases where an
applicant brought an application to the Court after a government institution,
despite having sought a time extension, had failed to respond before the expiry
of the extended deadline. In the first decision, the Court concluded that it
had jurisdiction to entertain a judicial review even if the response was
provided before the hearing: Canada (Information Commissioner) v. Canada (Minister
of External Affairs), [1990] 3 F.C. 514. This interpretation,
however, was rejected in two subsequent decisions: see X v. Canada (Minister
of National Defence), (1990) 41 F.T.R.16 and X v.
Canada (Minister of National Defence), [1991] 1
F.C. 670 (F.C.T.D.). In that last decision, Justice Strayer explicitly endorsed
the approach taken by Dubé, J. in the preceding case and wrote that
"...unless there is a genuine and continuing refusal to disclose and thus
an occasion for making an order for disclosure or its equivalent, no remedy can
be granted by this Court".
43. I am therefore reinforced in my
view that this Court does not have jurisdiction to entertain the application
filed by the applicant. Even if the CBC was initially in a deemed refusal
situation, it could not be said at the time of the hearing that the applicant
had a genuine and continuing claim of refusal of access. Further, it is not
much of a stretch to add that the applicant did not have a genuine and
continuing claim of refusal of access either during the extension period given
to the CBC to respond to his requests.
[Emphasis added.]
[24] The
Judge went on to conclude that the Court lacked jurisdiction to make any
declaration reprimanding the CBC for its behavior. The Judge adopted the
remarks of the Court in X v. Canada (Minister of National Defence),
[1991] 1 F.C. 670 (T.D.) to the effect that sections 49 and 50 of the Act,
which empower the Court to make appropriate orders, only apply where the Court
finds a refusal to disclose a record. Refusal of access is a condition
precedent to the granting of an order. Thus, orders issued under sections 49
or 50 must be pertinent to providing access or its equivalent where there is
first a finding that access has been refused.
c. Costs
[25] The
appellant sought costs on a solicitor-client basis on the ground that the CBC
had been adversarial and defensive in dealing with his access requests. The
Judge relied on Rule 400 of the Federal Courts Rules, which confers full
discretion on the Court when awarding costs. The Judge decided that the CBC’s
behavior had not amounted to the type of reprehensible conduct that will ground
an order for solicitor-client costs. Instead, the Judge found that it was Mr.
Statham's behavior that had been objectionable. The Judge pointed to the
Prothonotary’s criticism of Mr. Statham’s conduct in commencing one
application which challenged many decisions of the CBC, his failure to properly
amend his affidavit and amended application, and what the Judge characterized
to be gratuitous allegations made by Mr. Statham against the Commissioner and,
to a lesser extent, against the CBC.
[26] The
Judge, relying on the factors outlined in Rule 400(3)(c), (g), (i) and (k),
awarded costs against Mr. Statham under the highest column of the table to
Tariff B of the Federal Courts Rules. The Judge did not refer to
subsection 53(2) of the Act.
The Issues
[27] The
parties and the intervener raise a number of issues. In my view, the issues to
be decided may properly be framed as follows:
1.
Did
the Judge err in his primary finding that the application was moot because at
the time of the hearing Mr. Statham had been provided with a response to all of
his access requests?
2.
What
is the effect at law of a deemed refusal of access?
3.
When
the Commissioner receives a complaint alleging a deemed refusal of access, may
the Commissioner limit her investigation to establishing a time frame in which
the government institution is to respond to the access request?
4.
If
the Commissioner is entitled to so limit her investigation, did the Judge err
by stating that it is for the Commissioner to assess the circumstances and
determine what is a reasonable deadline for complying with the access request,
thus in effect curing the deemed refusal?
5.
Did
the Judge err by stating that Mr. Statham could not apply to the Federal Court
to judicially review the CBC’s deemed refusal of access prior to the expiration
of the commitment date?
6.
Did
the Judge err by failing to grant the requested declaration?
7.
Did
the Judge err by awarding costs against Mr. Statham?
Consideration of the
Issues
1. Did the Judge err
in his primary finding that the application was moot because at the time of the
hearing Mr. Statham had been provided with a response to all of his access
requests?
[28] As
explained above at paragraph 22, during oral argument of the appeal counsel for
Mr. Statham agreed that the ratio decidendi of the decision
of the Federal Court is that the application for judicial review was moot and
the Court lacked jurisdiction because Mr. Statham had received responses from
the CBC. It follows that the Judge's later statements about the effect of the
Commissioner’s agreement with the CBC concerning the commitment date and Mr.
Statham's right of access to the Federal Court were obiter dicta because
they were unnecessary for the Judge’s decision on the determinative question.
[29] In
that circumstance, it is important that this Court affirm that, as a matter of
law, the Judge possessed complete discretion to dismiss the application for judicial
review on the ground of mootness. See, for example, Canada (Information
Commissioner of Canada) v. Canada (Minister of
National Defence) (1999), 240 N.R. 244 (F.C.A.) (hereafter Minister
of National Defence).
[30] Further,
on the facts before the Judge I am satisfied that he committed no reviewable
error in the exercise of that discretion. Mr. Statham had conceded before the
Prothonotary that if every request for access was responded to the application
would become moot and would be withdrawn. Given that Mr. Statham's complaint
to the Commissioner only concerned the CBC’s deemed refusal of access, and
given the clarifications Mr. Statham gave to the Prothonotary, referred to in
the quotation at paragraph 11 above, Mr. Statham's concession was correct in
law. Once all of the access requests were responded to, the rights of the
parties in relation to those responses could not be affected by any decision in
the pending application for judicial review. With respect to the Judge’s
reference to the Court lacking “jurisdiction to entertain the application”, there
was no issue of jurisdiction in the sense the Court was forbidden from speaking
on the issues before it. After the access requests were responded to the Court
could still consider issues such as costs.
[31] Leaving aside the question of costs, the consequence of this is
that I would dismiss the appeal on the ground that no error has been
demonstrated with respect to the Judge’s conclusion that the application for
judicial review should be dismissed on the ground of mootness.
[32] That
said, this Court heard full argument on the Judge’s obiter statements
and was advised that a number of cases are being held in abeyance pending a
decision on this appeal. As well, the Court has heard another appeal from a
decision of the Federal Court which followed the decision here under appeal.
On that basis, I am satisfied that it is consistent with the principle of
judicial economy to address the following issues.
2. What
is the effect at law of a deemed refusal of access?
[33] The
appellant argues that the Judge's analysis is premised on the idea that the
Federal Court has jurisdiction under section 41 of the Act only with respect to
a "true refusal" of access. A "true refusal" is said to
arise when a government institution has responded to an access request by
invoking one of the provisions of the Act that exempts or excepts a record from
access. The appellant submits that this conclusion renders meaningless the
deeming provision found in subsection 10(3) of the Act.
[34] I
have not been persuaded that the Judge drew a distinction between deemed and
actual refusals. At paragraph 34 of his reasons, the Judge wrote:
34. When
an institution runs afoul of the timelines prescribed by the Act,
subsection 10(3) deems the institution to have refused access to the
requested documents with the result that the government institution, the
complainant and the [Commissioner] are placed in the same position as if there
had been an explicit refusal within the meaning of section 7 of the Act.
By incorporating subsection 10(3) into the access regime, Parliament
ensured that government institutions could not avoid access obligations by way
of delay or non-response and provided a mechanism through which requesting
parties are able to file a complaint and eventually seek review from the Court.
[Underlining
added.]
[35] In
any event, I believe it is settled law that no distinction exists between a
“true refusal" and a deemed refusal of access. As this Court wrote in Minister
of National Defence at paragraph 19:
19. Under the terms of subsection 10(3) of the Act,
where a government institution fails to give access to a record within the time
limits set out in the Act, there is a deemed refusal to give access, with the
result that the government institution, the complainant and the Commissioner
are placed in the same position as if there had been a refusal within the
meaning of section 7 and subsection 10(1) of the Act.
3. When the
Commissioner receives a complaint alleging a deemed refusal of access, may the
Commissioner limit her investigation to establishing a time frame in which the
government institution is to respond to the access request?
[36] The
Commissioner submits that this issue is essential to the determination of
whether a commitment date effectively cures a deemed refusal with the
consequence that a complainant's right to apply to the Federal Court under
section 41 of the Act for review of the refusal is suspended.
[37] Neither
party challenges the right of the Commissioner to so limit her investigation.
The CBC points out that Prothonotary Tabib’s order reflected the understanding
of the parties that the Federal Court would not be called upon to adjudicate
upon the merits of the CBC's responses to the access requests. The Court could
not consider the merits of the responses because the Commissioner had chosen not
to investigate the merits of any refusal of access by the CBC.
[38] The
Judge also accepted that the Commissioner was entitled to limit her investigation
to requiring the CBC to respond to each access request so that Mr. Statham
could then consider the merits of whatever response was provided. If not
satisfied with any response, Mr. Statham could make a further complaint to the
Commissioner, who would then consider the merits of any exemption or exclusion
under the Act claimed by the CBC.
[39] In
my view, the Judge was correct in his view that the Commissioner was entitled
in her discretion to limit her investigation. Section 34 of the Act confers
upon the Commissioner the power to "determine the procedure to be followed
in the performance of any duty or function of the Commissioner under this
Act." While this power is expressed to be "[s]ubject to this
Act," there is nothing in the Act that suggests the Commissioner is
required in every case to investigate and assess a government institution’s
claimed exemptions or exclusions before the Commissioner can report that in her
view the government institution is deemed to have refused access. As the Commissioner
points out, such a requirement would have significant resource implications for
her office.
[40] Support
for the view that the Commissioner may limit her investigation is found in the
reasons of this Court in Minister of National Defence. There, the
Commissioner had received a complaint with respect to a deemed refusal of
access and proceeded to investigate the complaint in the same manner as in the
present case. At paragraph 21 of its reasons, the Court wrote:
21. In
the instant case, as soon as the institution failed to comply with the time
limit, the Commissioner could have initiated his investigation as if there had
been a true refusal. He does have powers to investigate including, at the
beginning of an investigation, the power to compel the institution to explain
the reasons for its refusal. The Commissioner, who is master of his
procedure pursuant to section 34 of the Act, chose another approach. He hoped
to persuade the institution to voluntarily give the notice required under
sections 7 and 10. He tried to transform, as it were, what was then a deemed
refusal into a true refusal. For all practical purposes, he split his
investigation into two parts, initially trying to get an answer from the
institution, so he could then consider the merits of whatever answer might be
provided.
[Emphasis
added.]
[41] Implicit in
this passage, and in the reasons of the Court in their entirety, is the
affirmation of the right of the Commissioner to limit her investigation of a
deemed refusal. The Commissioner may confine her investigation to recommending
a time frame in which a government institution is to respond to the access
request. Such an approach will result, at the end of the day, in the
government institution giving the notice required under sections 7 and 10 of
the Act. If at that time access is not provided, the institution’s response
will enable the access requester to consider whether to lodge a further
complaint with the Commissioner.
4. If the Commissioner is entitled to so limit her
investigation, did the Judge err by stating that it is for the Commissioner to
assess the circumstances and determine what is a reasonable deadline for
complying with the access request, thus in effect curing the deemed refusal?
[42] The appellant submits that the Judge erred
in law by construing the Act to give the Commissioner power to "cure"
deemed refusals by permitting a government institution to respond to an access
request outside of the statutory time frame.
[43] The position of the Commissioner is that
this "is not a power that the Commissioner had understood to have been
granted" to her. Nor, in the Commissioner's view, "is this a power
expressly or implicitly conferred" upon the Commissioner under the Act.
[44] The CBC argues that the appellant's
interpretation of the Act does not acknowledge the right of the Commissioner to
determine the procedure to be followed when investigating a complaint that
there has been a deemed refusal of access. In its submission, it is the nature
of the procedure followed by the Commissioner that will be determinative of
whether a deemed refusal can be judicially reviewed.
[45] In my respectful view, the Judge erred in
law when he interpreted the Act to empower the Commissioner to "cure"
deemed refusals by establishing, with the agreement of the institution, a
commitment date. The Judge’s interpretation in effect allows the Commissioner,
by agreeing to a commitment date, to transform the deemed refusal into a valid
and binding extension of time for responding to the access request. I reach the
conclusion that the Judge erred for the following reasons.
[46] First, contrary to the submission of the
CBC, the discretion to determine the procedure to be followed in an
investigation is a distinct and separate issue from the powers granted to the
Commissioner when investigating a complaint. The Commissioner’s powers are set
out in section 36 of the Act. Neither section 36 nor any other provision
of the Act confers power on the Commissioner to extend the time frames set out
in the Act.
[47] Second, the role of the Commissioner is to
make non-binding recommendations to the relevant government institution. The
Commissioner has no authority to order the disclosure of any record. See, for
example, Minister of National Defence at paragraph 27, Canadian
Council of Christian Charities v. Canada (Minister of Finance), [1999] 4
F.C. 245 at paragraph 12 (T.D.), and Canada (Attorney General) v. Canada (Information Commissioner), [2004] 4
F.C.R. 181 at paragraph 32 (T.D.) (rev’d on other grounds). It is inconsistent
with the role and mandate of the Commissioner to clothe her with authority to
grant to a government institution a binding extension of time for the purpose
of responding to an access request.
[48] Finally, the Judge appears to have relied
upon the decision of this Court in Minister of National Defence to
conclude that Mr. Statham could not apply to the Court until after the
expiration of the commitment date. In that case, the Court affirmed the
decision of the Federal Court that an application for judicial review of a
deemed refusal of access was rendered moot because the institution had finally
provided a response to the access request. To the extent the application for
judicial review was directed towards the merits of the exemptions claimed in
the response, the application was premature because the Commissioner had not
investigated those claimed exemptions. This decision does not support the
Judge’s interpretation of the Act.
[49] To conclude on this point, the Act confers
no authority on the Commissioner to "cure" a deemed refusal of access
by granting any extension of time to a government institution to respond to an
access request.
5. Did the Judge err by stating that Mr. Statham could
not apply to the Federal Court to judicially review the CBC’s deemed refusal of
access prior to the expiration of the commitment date?
[50] As explained above at paragraph 23, the
Judge found that Mr. Statham could not seek judicial review prior to the
expiration of the commitment date. The Judge reached this conclusion notwithstanding
that one year prior to the commitment date the then Commissioner had completed
his investigation of the complaint and made his final report to Mr. Statham
under subsection 37(2) of the Act. In that report, the Commissioner advised
Mr. Statham that he could apply under section 41 of the Act to the Federal Court
for a review of the CBC’s deemed refusal to deny him access to the requested
records.
[51] Mr. Statham asserts that the Judge’s analysis is premised on the
idea that the Federal Court only has jurisdiction under section 41 of the Act
with respect to “true refusals” of access. Mr. Statham
also argues that the Judge's conclusion that he had no right of access to the
Federal Court is not supported by the language or purpose of the Act.
[52] The Commissioner submits that section 41 of
the Act does not specify that the right of judicial review is confined to
actual or true or continued refusals and the Judge's interpretation of the Act
unnecessarily restricts the Federal Court's jurisdiction under the Act.
[53] The CBC asserts that section 41 of the Act
confers on the Federal Court a limited power to entertain an application for
judicial review were a person has been "refused" access to a record
by an institution. The term "refused" is said to refer exclusively
to an "actual" refusal. Reliance is placed upon the Judge's comment
at paragraph 43 of his reasons that there was no "genuine and
continuing" refusal of access "during the extension given to the CBC
to respond." The CBC further says that the purpose of the deemed refusal
provision in subsection 10(3) of the Act is simply to allow an access requester
to file a complaint with the Commissioner when an institution fails to respond
to an access request within the time frame prescribed by the Act.
[54] As explained at paragraph 34 above, I do not
believe the Judge concluded that deemed refusals are insufficient to found an
application under section 41 of the Act. Rather, what the Judge considered to
be determinative was how the Commissioner decides to conduct her
investigation. This is reflected at paragraph 41 of his reasons where the
Judge stated that a deemed refusal could be judicially reviewed where the
Commissioner does not allow any further time for the institution to respond to
the access request, but instead investigates "as if there had been a true
refusal."
[55] That said, in my respectful view the Judge
erred when he found that, as a matter of law, there was no right to judicially
review the deemed refusal to provide access in the circumstances before the
Court. Where there is a complaint of a deemed refusal to provide access, the
complainant may apply for judicial review within 45 days of receiving the
Commissioner's report made under subsection 37(2) of the Act. The relevance of
the procedure chosen by the Commissioner is that in an application under
section 41 of the Act the Court cannot rule upon the application of any
exemption or exclusion claimed under the Act if the Commissioner has not
investigated and reported upon the claim to the exemption or exclusion. I
reach this conclusion for the following reasons.
[56] First, as is apparent from paragraph 41 of
the Judge’s reasons, the Judge’s conclusion that Mr. Statham could not apply
for judicial review was based upon his conclusion that the Commissioner had, by
agreeing to the commitment date, in effect granted an extension of time to the
CBC, thus "curing" its deemed refusal. As explained above, the
Commissioner had no power to grant an extension of the time limits set out in
the Act.
[57] Second, there is nothing in the wording of
section 41 of the Act which limits the right of access to the Court to an
actual refusal of access. For ease of reference, section 41 is reproduced
here:
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41. Any person who has been refused access
to a record requested under this Act or a part thereof may, if a
complaint has been made to the Information Commissioner in respect of the
refusal, apply to the Court for a review of the matter within forty-five
days after the time the results of an investigation of the complaint by the
Information Commissioner are reported to the complainant under subsection 37(2)
or within such further time as the Court may, either before or after the
expiration of those forty-five days, fix or allow. [Emphasis added.]
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41. La personne qui s’est vu refuser
communication totale ou partielle d’un document demandé en vertu de la
présente loi et qui a déposé ou fait déposer une plainte à ce sujet
devant le Commissaire à l’information peut, dans un délai de quarante-cinq
jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2),
exercer un recours en révision de la décision de refus devant la Cour. La
Cour peut, avant ou après l’expiration du délai, le proroger ou en autoriser
la prorogation. [Non souligné dans l’original.]
|
[58] Subsection 10(3) of the Act provides that where the head of a
government institution fails to give access to a requested record within the
time limit set out in the Act, "the head of the institution shall, for the
purposes of this Act, be deemed to have refused to give access."
[59] The Act is to be interpreted in a purposive
and liberal manner. See: Canada Post Corp. v. Canada (Minister of Public
Works), [1995] 2 F.C. 110 at paragraph 33 (C.A.). The governing principle of statutory interpretation requires
words of an Act to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act
and the intention of Parliament.
[60] Applying those principles, the phrase
"[a]ny person who has been refused access to a record requested" as
used in section 41 of the Act includes any person who has not received access
to a requested record within the time limits set out in the Act. To conclude
otherwise would not give effect to the plain wording of subsection 10(3) of the
Act.
[61] Third, the prior jurisprudence of this Court
is to the effect that a deemed refusal to give access places a complainant in
the same position as if there had been a refusal within the meaning of section
7 and subsection 10(1) of the Act. See: Minister of National Defence at
paragraph 19.
[62] Consistent with this is the decision of the
Federal Court in X v. Canada (Minister of National Defence), [1991]
1 F.C. 670. At page 677 Justice Strayer, when describing the scheme of the Act,
referred to "a right to seek judicial review in cases of actual or deemed
refusal of access for the purpose of obtaining that access."
[63] Finally, I have considered the CBC’s
reliance upon the Judge's statement at paragraph 43 of his reasons that there
was no "genuine and continuing claim of refusal of access either during
the extension period given to the CBC." However, the commitment date did
not cure the deemed refusal by extending the time in which the CBC could
respond to the access request. At the time the application for judicial review
was commenced, the CBC had not provided responses to all of the access
requests. There was, therefore, a refusal of access to some of the records at
the time the application was commenced.
[64] To conclude, section 41 of the Act contains
three prerequisites that must be met before an access requester may apply to
the Federal Court. They are:
1.
The applicant must have been "refused
access" to a requested record.
2.
The applicant must have complained to the
Commissioner about the refusal.
3.
The applicant must have received a report of the
Commissioner under subsection 37(2) of the Act.
[65] A person who is "refused access"
to a record includes a person who has requested access where the head of the
government institution is deemed under subsection 10(3) of the Act to have
refused to give access.
6. Did the Judge err by failing to
grant the requested declaration?
[66] As of the commitment date the CBC had not
responded to 38 access requests. Those responses were delivered five days
prior to the hearing in the Federal Court. At the hearing, Mr. Statham
sought a declaration that the CBC had acted unreasonably. The Judge declined
to grant declaratory relief on the ground that the Federal Court lacked
jurisdiction.
[67] In my view, the Judge did not err in
refusing declaratory relief. I reach this conclusion for a different reason
than the Judge. In my view, the request for declaratory relief should have been
refused because the reasonableness of the CBC’s conduct was not directly in
issue in this application. This is reflected by the following:
1.
No complaint was made to the Commissioner
concerning the reasonableness of the CBC’s conduct.
2.
Neither Mr. Statham's notice of application for
judicial review nor his amended application sought declaratory relief.
3.
Mr. Statham conceded before Prothonotary Tabib
that the application would become moot in respect of all of the access requests
the CBC responded to.
4.
A single application for judicial review was
filed in respect of hundreds of complaints to the Commissioner. As of November
21, 2008 there were 80 outstanding access requests. As of the commitment date
only 38 access requests had not been responded to. Having regard to the number
and diversity of the access requests and the different time frames in which
each was responded to, it was inconsistent with a general request for
declaratory relief to consolidate all of the complaints within a single
application.
In these
circumstances it would have been inappropriate to grant declaratory relief.
[68] As I have concluded that the reasonableness
of the CBC’s conduct was not directly and properly raised by Mr. Statham, it is
unnecessary to consider whether the Federal Court could have granted
declaratory relief.
7. Did the Judge err by awarding
costs against Mr. Statham?
[69] The Judge awarded the costs of the
proceeding against Mr. Statham and set those costs under the highest column of
the table to Tariff B to the Federal Courts Rules. Mr. Statham submits
that the cost award was inappropriate and improperly punitive. This is said to
be particularly so because the prothonotary had previously made cost orders
against Mr. Statham in respect of at least some of the same conduct relied upon
by the Judge.
[70] It is not clear that the Judge's attention
was drawn to section 53 of the Act. Section 53 provides:
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53. (1) Subject to subsection (2), the costs
of and incidental to all proceedings in the Court under this Act shall be in
the discretion of the Court and shall follow the event unless the Court
orders otherwise.
(2) Where the Court is of the opinion that
an application for review under section 41 or 42 has raised an important new
principle in relation to this Act, the Court shall order that costs be
awarded to the applicant even if the applicant has not been successful in
the result. [Emphasis added.]
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53. (1) Sous réserve du paragraphe (2), les
frais et dépens sont laissés à l’appréciation de la Cour et suivent, sauf
ordonnance contraire de la Cour, le sort du principal.
(2) Dans les cas où elle estime que l’objet
des recours visés aux articles 41 et 42 a soulevé un principe
important et nouveau quant à la présente loi, la Cour accorde les frais et
dépens à la personne qui a exercé le recours devant elle, même si cette
personne a été déboutée de son recours. [Non souligné dans l’originale.]
|
[71] Subsection 53(2) is a reflection of Parliament's intent that
important issues concerning the Act be brought before the courts, and that a
litigant who raises such issues is not to be deprived of an award of costs
solely because he or she was unsuccessful in the litigation. The provision is
an effort to level the playing field for litigants who seek records from a
government institution.
[72] In the present case, the Judge exercised his
discretion to hear an application that was moot. He did so because he found
that Mr. Statham had raised “issues that are of interest to other potential
litigants and which have never been addressed by courts before.” Having found
important issues of principle were raised, it was an error of law to fail to
consider the application of subsection 53(2) of the Act. Had the Judge
done so, I am satisfied that the award of costs would have been different.
[73] As to what the award of costs should have
been had the Judge considered subsection 53(2), the Judge was critical of
Mr. Statham's conduct in the proceeding. This was a conclusion open to the
Judge on the evidence and I have not been persuaded that the Judge made any
palpable or overriding error in reaching this conclusion. Nothing in section
53 of the Act precludes the Court from considering the conduct of a party
before the Court when exercising the discretion as to costs.
[74] Rule 407 of the Federal Courts Rules
provides that unless otherwise ordered, costs are to be assessed in accordance
with column III of the table to Tarriff B. Taking into consideration
subsection 53(2) of the Act, Rule 407 and the Judge's concerns about Mr.
Statham's conduct, I would award the costs of the Federal Court proceeding to
Mr. Statham. Such costs should be assessed in accordance with the midpoint of
column I of the table to Tariff B.
Conclusion
[75] For the reasons given I would dismiss the appeal except that, pronouncing the judgment that the Judge ought to have pronounced, I
would vary the judgment appealed from so as to award the costs of the
application in the Federal Court to Mr. Statham, such costs to be assessed
in accordance with the midpoint of column I of the table to Tariff B.
[76] In this Court, Mr. Statham has failed to
obtain the declaratory relief he sought. He has, however, raised important
principles in relation to the Act that are of concern to other persons making
access requests. Further, he successfully argued that the Judge had erred in
his interpretation of the Act. For that reason, I would award him the costs of
this appeal, to be assessed at the midpoint of column III of the table to
Tariff B.
[77] The Commissioner is an intervener in this
Court. Therefore, I would make no award of costs for or against the
Commissioner.
“Eleanor
R. Dawson”
“I agree
Johanne
Trudel J.A.”
“I concur
Robert M. Mainville J.A.”
APPENDIX
Sections 7, 9, 10, 30, 34, 36,
37, 41, 49, 50 and 53 of the Access to Information Act are as follows:
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Notice where access
requested
7. Where access to a record
is requested under this Act, the head of the government institution to which
the request is made shall, subject to sections 8, 9 and 11, within thirty
days after the request is received,
(a) give written notice to the person who
made the request as to whether or not access to the record or a part thereof
will be given; and
(b) if access is to be given, give the person
who made the request access to the record or part thereof.
[...]
Extension of time limits
9. (1) The head of a government institution
may extend the time limit set out in section 7 or subsection 8(1) in respect
of a request under this Act for a reasonable period of time, having regard to
the circumstances, if
(a) the request is for a large number of
records or necessitates a search through a large number of records and
meeting the original time limit would unreasonably interfere with the
operations of the government institution,
(b) consultations are necessary to comply
with the request that cannot reasonably be completed within the original time
limit, or
(c) notice of the request is given pursuant
to subsection 27(1)
by giving notice of the extension and, in the
circumstances set out in paragraph (a) or (b),
the length of the extension, to the person who made the request within thirty
days after the request is received, which notice shall contain a statement
that the person has a right to make a complaint to the Information
Commissioner about the extension.
Notice of extension to
Information Commissioner
(2) Where the head of a government institution extends a time limit
under subsection (1) for more than thirty days, the head of the institution
shall give notice of the extension to the Information Commissioner at the
same time as notice is given under subsection (1).
Where access is refused
10. (1) Where the head of a
government institution refuses to give access to a record requested under
this Act or a part thereof, the head of the institution shall state in the
notice given under paragraph 7(a)
(a) that the record does not exist, or
(b) the specific provision of this Act on
which the refusal was based or, where the head of the institution does not
indicate whether a record exists, the provision on which a refusal could
reasonably be expected to be based if the record existed,
and shall state in the notice that the person
who made the request has a right to make a complaint to the Information
Commissioner about the refusal.
Existence of a record not required to be disclosed
(2) The head of a government institution may but is not required to
indicate under subsection (1) whether a record exists.
Deemed refusal to give access
(3) Where the head of a government institution fails to give access
to a record requested under this Act or a part thereof within the time limits
set out in this Act, the head of the institution shall, for the purposes of
this Act, be deemed to have refused to give access.
[…]
Receipt and investigation of complaints
30. (1) Subject to this
Act, the Information Commissioner shall receive and investigate complaints
(a) from persons who have been refused access
to a record requested under this Act or a part thereof;
(b) from persons who have been required to
pay an amount under section 11 that they consider unreasonable;
(c) from persons who have requested access to
records in respect of which time limits have been extended pursuant to
section 9 where they consider the extension unreasonable;
(d) from persons who have not been given
access to a record or a part thereof in the official language requested by
the person under subsection 12(2), or have not been given access in that
language within a period of time that they consider appropriate;
(d.1) from persons who have not been given
access to a record or a part thereof in an alternative format pursuant to a
request made under subsection 12(3), or have not been given such access
within a period of time that they consider appropriate;
(e) in respect of any publication or bulletin
referred to in section 5; or
(f) in respect of any other matter relating
to requesting or obtaining access to records under this Act.
Complaints
submitted on behalf of complainants
(2) Nothing in this Act precludes the Information Commissioner from
receiving and investigating complaints of a nature described in subsection
(1) that are submitted by a person authorized by the complainant to act on
behalf of the complainant, and a reference to a complainant in any other
section includes a reference to a person so authorized.
Information
Commissioner may initiate complaint
(3) Where the Information Commissioner is satisfied that there are
reasonable grounds to investigate a matter relating to requesting or
obtaining access to records under this Act, the Commissioner may initiate a
complaint in respect thereof.
[…]
Regulation of procedure
34. Subject to this Act, the Information
Commissioner may determine the procedure to be followed in the performance of
any duty or function of the Commissioner under this Act.
[…]
Powers of Information Commissioner in carrying out
investigations
36. (1) The Information Commissioner has, in
relation to the carrying out of the investigation of any complaint under this
Act, power
(a) to summon and enforce the appearance of
persons before the Information Commissioner and compel them to give oral or
written evidence on oath and to produce such documents and things as the
Commissioner deems requisite to the full investigation and consideration of
the complaint, in the same manner and to the same extent as a superior court
of record;
(b) to administer oaths;
(c) to receive and accept such evidence and
other information, whether on oath or by affidavit or otherwise, as the
Information Commissioner sees fit, whether or not the evidence or information
is or would be admissible in a court of law;
(d) to enter any premises occupied by any
government institution on satisfying any security requirements of the
institution relating to the premises;
(e) to converse in private with any person in
any premises entered pursuant to paragraph (d) and otherwise carry
out therein such inquiries within the authority of the Information
Commissioner under this Act as the Commissioner sees fit; and
(f) to examine or obtain copies of or
extracts from books or other records found in any premises entered pursuant
to paragraph (d)
containing any matter relevant to the investigation.
Access to records
(2) Notwithstanding any other Act of Parliament or any privilege
under the law of evidence, the Information Commissioner may, during the
investigation of any complaint under this Act, examine any record to which
this Act applies that is under the control of a government institution, and
no such record may be withheld from the Commissioner on any grounds.
Evidence in other proceedings
(3)
Except in a prosecution of a person for an offence under section 131 of the Criminal
Code (perjury) in respect of a statement made under this Act, in a
prosecution for an offence under section 67, in a review before the Court
under this Act or in an appeal from such proceedings, evidence given by a
person in proceedings under this Act and evidence of the existence of the
proceedings is inadmissible against that person in a court or in any other
proceedings.
Witness fees
(4) Any person summoned to appear before the Information
Commissioner pursuant to this section is entitled in the discretion of the
Commissioner to receive the like fees and allowances for so doing as if
summoned to attend before the Federal Court.
Return of documents, etc.
(5) Any document or thing produced pursuant to this section by any
person or government institution shall be returned by the Information
Commissioner within ten days after a request is made to the Commissioner by
that person or government institution, but nothing in this subsection
precludes the Commissioner from again requiring its production in accordance
with this section.
Findings and recommendations of Information
Commissioner
37. (1) If, on investigating a complaint in
respect of a record under this Act, the Information Commissioner finds that
the complaint is well-founded, the Commissioner shall provide the head of the
government institution that has control of the record with a report
containing
(a) the findings of the investigation and any
recommendations that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within
a time specified in the report, notice be given to the Commissioner of any
action taken or proposed to be taken to implement the recommendations
contained in the report or reasons why no such action has been or is proposed
to be taken.
Report to
complainant and third parties
(2) The Information Commissioner shall, after investigating a
complaint under this Act, report to the complainant and any third party that
was entitled under subsection 35(2) to make and that made representations to
the Commissioner in respect of the complaint the results of the
investigation, but where a notice has been requested under paragraph (1)(b) no
report shall be made under this subsection until the expiration of the time
within which the notice is to be given to the Commissioner.
Matter to be
included in report to complainant
(3) Where a notice has been requested under paragraph (1)(b)
but no such notice is received by the Commissioner within the time specified
therefor or the action described in the notice is, in the opinion of the
Commissioner, inadequate or inappropriate or will not be taken in a
reasonable time, the Commissioner shall so advise the complainant in his
report under subsection (2) and may include in the report such comments on
the matter as he thinks fit.
Access to be
given
(4) Where, pursuant to a request under paragraph (1)(b),
the head of a government institution gives notice to the Information
Commissioner that access to a record or a part thereof will be given to a
complainant, the head of the institution shall give the complainant access to
the record or part thereof
(a) forthwith on giving the notice if no
notice is given to a third party under paragraph 29(1)(b) in the matter; or
(b) forthwith on completion of twenty days
after notice is given to a third party under paragraph 29(1)(b),
if that notice is given, unless a review of the matter is requested under
section 44.
Right of
review
(5) Where, following the investigation of a complaint relating to a
refusal to give access to a record requested under this Act or a part
thereof, the head of a government institution does not give notice to the
Information Commissioner that access to the record will be given, the
Information Commissioner shall inform the complainant that the complainant
has the right to apply to the Court for a review of the matter investigated.
[…]
Review by Federal Court
41. Any person who has been refused access to
a record requested under this Act or a part thereof may, if a complaint has
been made to the Information Commissioner in respect of the refusal, apply to
the Court for a review of the matter within forty-five days after the time
the results of an investigation of the complaint by the Information
Commissioner are reported to the complainant under subsection 37(2) or within
such further time as the Court may, either before or after the expiration of
those forty-five days, fix or allow.
[…]
Order of Court where no authorization to refuse
disclosure found
49. Where the head of a
government institution refuses to disclose a record requested under this Act
or a part thereof on the basis of a provision of this Act not referred to in
section 50, the Court shall, if it determines that the head of the
institution is not authorized to refuse to disclose the record or part
thereof, order the head of the institution to disclose the record or part
thereof, subject to such conditions as the Court deems appropriate, to the
person who requested access to the record, or shall make such other order as
the Court deems appropriate.
Order of Court where reasonable grounds of injury
not found
50. Where the head of a government institution
refuses to disclose a record requested under this Act or a part thereof on
the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or
18(d),
the Court shall, if it determines that the head of the institution did not
have reasonable grounds on which to refuse to disclose the record or part
thereof, order the head of the institution to disclose the record or part
thereof, subject to such conditions as the Court deems appropriate, to the
person who requested access to the record, or shall make such other order as
the Court deems appropriate.
[…]
Costs
53. (1) Subject to
subsection (2), the costs of and incidental to all proceedings in the Court
under this Act shall be in the discretion of the Court and shall follow the
event unless the Court orders otherwise.
Idem
(2) Where the Court is of the opinion that
an application for review under section 41 or 42 has raised an important new
principle in relation to this Act, the Court shall order that costs be awarded
to the applicant even if the applicant has not been successful in the result.
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Notification
7. Le responsable de l’institution fédérale à qui est faite
une demande de communication de document est tenu, dans les trente jours
suivant sa réception, sous réserve des articles 8, 9 et 11 :
a) d’aviser par
écrit la personne qui a fait la demande de ce qu’il sera donné ou non
communication totale ou partielle du document;
b) le cas échéant,
de donner communication totale ou partielle du document.
. . .
Prorogation du délai
9. (1) Le responsable d’une
institution fédérale peut proroger le délai mentionné à l’article 7 ou au
paragraphe 8(1) d’une période que justifient les circonstances dans les cas
où :
a) l’observation du
délai entraverait de façon sérieuse le fonctionnement de l’institution en
raison soit du grand nombre de documents demandés, soit de l’ampleur des
recherches à effectuer pour donner suite à la demande;
b) les consultations
nécessaires pour donner suite à la demande rendraient pratiquement impossible
l’observation du délai;
c) avis de la
demande a été donné en vertu du paragraphe 27(1).
Dans l’un ou l’autre des cas prévus aux
alinéas a),
b)
et c),
le responsable de l’institution fédérale envoie à la personne qui a fait la
demande, dans les trente jours suivant sa réception, un avis de prorogation
de délai, en lui faisant part de son droit de déposer une plainte à ce propos
auprès du Commissaire à l’information; dans les cas prévus aux alinéas a) et
b),
il lui fait aussi part du nouveau délai.
Avis au Commissaire à l’information
(2) Dans les cas où la prorogation de délai visée au paragraphe (1)
dépasse trente jours, le responsable de l’institution fédérale en avise en
même temps le Commissaire à l’information et la personne qui a fait la demande.
Refus de communication
10. (1) En cas de refus de
communication totale ou partielle d’un document demandé en vertu de la
présente loi, l’avis prévu à l’alinéa 7a) doit mentionner, d’une
part, le droit de la personne qui a fait la demande de déposer une plainte
auprès du Commissaire à l’information et, d’autre part :
a) soit le fait que
le document n’existe pas;
b) soit la
disposition précise de la présente loi sur laquelle se fonde le refus ou,
s’il n’est pas fait état de l’existence du document, la disposition sur
laquelle il pourrait vraisemblablement se fonder si le document existait.
Dispense de divulgation de
l’existence d’un document
(2) Le paragraphe (1) n’oblige pas le responsable de l’institution
fédérale à faire état de l’existence du document demandé.
Présomption de refus
(3) Le défaut de communication totale ou partielle d’un document
dans les délais prévus par la présente loi vaut décision de refus de
communication.
. . .
Réception des plaintes et enquêtes
30. (1) Sous réserve des
autres dispositions de la présente loi, le Commissaire à l’information reçoit
les plaintes et fait enquête sur les plaintes :
a) déposées par des
personnes qui se sont vu refuser la communication totale ou partielle d’un
document qu’elles ont demandé en vertu de la présente loi;
b) déposées par des
personnes qui considèrent comme excessif le montant réclamé en vertu de
l’article 11;
c) déposées par des
personnes qui ont demandé des documents dont les délais de communication ont
été prorogés en vertu de l’article 9 et qui considèrent la prorogation comme
abusive;
d) déposées par des
personnes qui se sont vu refuser la traduction visée au paragraphe 12(2) ou
qui considèrent contre-indiqué le délai de communication relatif à la
traduction;
d.1) déposées par des
personnes qui se sont vu refuser la communication des documents ou des
parties en cause sur un support de substitution au titre du paragraphe 12(3)
ou qui considèrent comme contre-indiqué le délai de communication relatif au
transfert;
e) portant sur le
répertoire ou le bulletin visés à l’article 5;
f) portant sur toute
autre question relative à la demande ou à l’obtention de documents en vertu
de la présente loi.
Entremise de représentants
(2) Le Commissaire à l’information peut recevoir les plaintes visées
au paragraphe (1) par l’intermédiaire d’un représentant du plaignant. Dans
les autres articles de la présente loi, les dispositions qui concernent le
plaignant concernent également son représentant.
Plaintes émanant du Commissaire à l’information
(3) Le Commissaire à l’information peut lui-même prendre
l’initiative d’une plainte s’il a des motifs raisonnables de croire qu’une
enquête devrait être menée sur une question relative à la demande ou à
l’obtention de documents en vertu de la présente loi.
. . .
Procédure
34. Sous réserve des autres dispositions de la présente loi, le
Commissaire à l’information peut établir la procédure à suivre dans
l’exercice de ses pouvoirs et fonctions.
. . .
Pouvoirs du Commissaire à l’information pour la tenue des
enquêtes
36. (1) Le Commissaire à
l’information a, pour l’instruction des plaintes déposées en vertu de la
présente loi, le pouvoir :
a) d’assigner et de
contraindre des témoins à comparaître devant lui, à déposer verbalement ou
par écrit sous la foi du serment et à produire les pièces qu’il juge
indispensables pour instruire et examiner à fond les plaintes dont il est
saisi, de la même façon et dans la même mesure qu’une cour supérieure
d’archives;
b) de faire prêter
serment;
c) de recevoir des
éléments de preuve ou des renseignements par déclaration verbale ou écrite
sous serment ou par tout autre moyen qu’il estime indiqué, indépendamment de
leur admissibilité devant les tribunaux;
d) de pénétrer dans
les locaux occupés par une institution fédérale, à condition de satisfaire
aux normes de sécurité établies par l’institution pour ces locaux;
e) de s’entretenir
en privé avec toute personne se trouvant dans les locaux visés à l’alinéa d) et
d’y mener, dans le cadre de la compétence que lui confère la présente loi,
les enquêtes qu’il estime nécessaires;
f) d’examiner ou de
se faire remettre des copies ou des extraits des livres ou autres documents
contenant des éléments utiles à l’enquête et trouvés dans les locaux visés à
l’alinéa d).
Accès aux documents
(2) Nonobstant toute autre loi fédérale et toute immunité reconnue
par le droit de la preuve, le Commissaire à l’information a, pour les
enquêtes qu’il mène en vertu de la présente loi, accès à tous les documents
qui relèvent d’une institution fédérale et auxquels la présente loi
s’applique; aucun de ces documents ne peut, pour quelque motif que ce soit,
lui être refusé.
Inadmissibilité de la preuve dans d’autres procédures
(3) Sauf dans les cas de poursuites pour infraction à l’article 131
du Code criminel (parjure) se rapportant à une déclaration faite en
vertu de la présente loi ou pour infraction à l’article 67, ou sauf dans les
cas de recours en révision prévus par la présente loi devant la Cour ou les
cas d’appel de la décision rendue par la Cour, les dépositions faites au
cours de toute procédure prévue par la présente loi ou le fait de l’existence
de telle procédure ne sont pas admissibles contre le déposant devant les
tribunaux ni dans aucune autre procédure.
Frais des témoins
(4) Les témoins assignés à comparaître devant le Commissaire à
l’information en vertu du présent article peuvent recevoir, si le Commissaire
le juge indiqué, les frais et indemnités accordés aux témoins assignés devant
la Cour fédérale.
Renvoi des documents, etc.
(5) Les personnes ou les institutions fédérales qui produisent des
pièces demandées en vertu du présent article peuvent exiger du Commissaire à
l’information qu’il leur renvoie ces pièces dans les dix jours suivant la
requête qu’elles lui présentent à cette fin, mais rien n’empêche le
Commissaire d’en réclamer une nouvelle production.
Conclusions et recommandations du Commissaire à
l’information
37. (1) Dans les cas où il conclut au bien-fondé
d’une plainte portant sur un document, le Commissaire à l’information adresse
au responsable de l’institution fédérale de qui relève le document un rapport
où :
a) il présente les
conclusions de son enquête ainsi que les recommandations qu’il juge indiquées;
b) il demande, s’il
le juge à propos, au responsable de lui donner avis, dans un délai déterminé,
soit des mesures prises ou envisagées pour la mise en oeuvre de ses
recommandations, soit des motifs invoqués pour ne pas y donner suite.
Compte rendu au plaignant
(2) Le Commissaire à l’information rend compte des conclusions de
son enquête au plaignant et aux tiers qui pouvaient, en vertu du paragraphe 35(2),
lui présenter des observations et qui les ont présentées; toutefois, dans les
cas prévus à l’alinéa (1)b),
le Commissaire à l’information ne peut faire son compte rendu qu’après
l’expiration du délai imparti au responsable de l’institution fédérale.
Éléments à inclure dans le compte rendu
(3) Le Commissaire à l’information mentionne également dans son
compte rendu au plaignant, s’il y a lieu, le fait que, dans les cas prévus à
l’alinéa (1)b),
il n’a pas reçu d’avis dans le délai imparti ou que les mesures indiquées
dans l’avis sont, selon lui, insuffisantes, inadaptées ou non susceptibles
d’être prises en temps utile. Il peut en outre y inclure tous commentaires
qu’il estime utiles.
Communication accordée
(4) Dans les cas où il fait suite à la demande formulée par le
Commissaire à l’information en vertu de l’alinéa (1)b) en avisant le
Commissaire qu’il donnera communication totale ou partielle d’un document, le
responsable d’une institution fédérale est tenu de donner cette communication
au plaignant :
a) immédiatement,
dans les cas où il n’y a pas de tiers à qui donner l’avis prévu à l’alinéa
29(1)b);
b) dès l’expiration
des vingt jours suivant l’avis prévu à l’alinéa 29(1)b), dans les autres cas,
sauf si un recours en révision a été exercé en vertu de l’article 44.
Recours en révision
(5) Dans les cas où, l’enquête terminée, le responsable de
l’institution fédérale concernée n’avise pas le Commissaire à l’information
que communication du document ou de la partie en cause sera donnée au
plaignant, le Commissaire à l’information informe celui-ci de l’existence
d’un droit de recours en révision devant la Cour.
. . .
Révision par la Cour fédérale
41. La personne qui s’est vu refuser
communication totale ou partielle d’un document demandé en vertu de la
présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le
Commissaire à l’information peut, dans un délai de quarante-cinq jours
suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un
recours en révision de la décision de refus devant la Cour. La Cour peut,
avant ou après l’expiration du délai, le proroger ou en autoriser la
prorogation.
. . .
Ordonnance de la Cour dans les cas où le refus n’est
pas autorisé
49. La Cour, dans les cas
où elle conclut au bon droit de la personne qui a exercé un recours en
révision d’une décision de refus de communication totale ou partielle d’un document
fondée sur des dispositions de la présente loi autres que celles mentionnées
à l’article 50, ordonne, aux conditions qu’elle juge indiquées, au
responsable de l’institution fédérale dont relève le document en litige d’en
donner à cette personne communication totale ou partielle; la Cour rend une
autre ordonnance si elle l’estime indiqué.
Ordonnance de la Cour dans les cas où le préjudice
n’est pas démontré
50. Dans les cas où le
refus de communication totale ou partielle du document s’appuyait sur les
articles 14 ou 15 ou sur les alinéas 16(1)c) ou d) ou
18d),
la Cour, si elle conclut que le refus n’était pas fondé sur des motifs
raisonnables, ordonne, aux conditions qu’elle juge indiquées, au responsable
de l’institution fédérale dont relève le document en litige d’en donner
communication totale ou partielle à la personne qui avait fait la demande; la
Cour rend une autre ordonnance si elle l’estime indiqué.
. . .
Frais et dépens
53. (1) Sous réserve du
paragraphe (2), les frais et dépens sont laissés à l’appréciation de la Cour
et suivent, sauf ordonnance contraire de la Cour, le sort du principal.
Idem
(2) Dans les cas où elle estime que
l’objet des recours visés aux articles 41 et 42 a soulevé un principe
important et nouveau quant à la présente loi, la Cour accorde les frais et
dépens à la personne qui a exercé le recours devant elle, même si cette
personne a été déboutée de son recours.
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