Date: 20101122
Docket: A-500-09
Citation: 2010 FCA 316
CORAM: DAWSON J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
MICHAEL DAGG
Appellant
and
MINISTER OF INDUSTRY
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] This is an appeal from an order of the Federal
Court. The Court’s reasons are cited as 2009 FC 1265. The sole issue to be
determined on this appeal is whether the Judge made an error in principle when
he dismissed a motion for costs brought by the appellant, Mr. Dagg. The issue
arises out of the following facts.
The Facts
[2] By
letter dated January 15, 2008, Mr. Dagg made a request to Industry Canada under the Access
to Information Act, R.S.C. 1985, c. A-1 (Act) seeking access to certain
records. Industry Canada responded that, pursuant to subsection 9(1) of
the Act, an extension of up to 150 days beyond the 30-day limit contained in section
7 of the Act would be required to complete the processing of Mr. Dagg's
request. Thereafter, Industry Canada did not process the access request within
the 150-day extension. Mr. Dagg filed a complaint with the Information
Commissioner (Commissioner) concerning Industry Canada's delay in
responding to the access request. The sections of the Act referred to in these
reasons are set out in the appendix to the reasons.
[3] The
Commissioner investigated Mr. Dagg’s complaint. By letter dated July 10, 2009,
the then Commissioner advised Mr. Dagg of the results of his investigation. In
material part, the letter advised Mr. Dagg that:
The investigation confirmed
that extensions invoked under section 9 were necessary and that the durations
were reasonable. Hence, the due date for a response was extended. As you
know, the department failed to respond to your request by the extended due
date, thereby placing itself in a deemed refusal situation pursuant to
subsection 10(3) of the Act. In our view, there is no lawful justification for
[Industry Canada]’s failure to meet the
response deadline.
As a result of our
intervention [Industry Canada] has provided our office with
a work plan and commitment date for your request. [Industry Canada] is making every effort to
respond to your request by September 28, 2009. Consequently, we will record
your complaint as resolved. [Emphasis added.]
[4] On
August 21, 2009, Mr. Dagg commenced an application for judicial review of the
decision refusing his access request. This date was within the 45-day deadline
for commencing such applications set under section 41 of the Act, but was prior
to the commitment date of September 28, 2009. On the commitment date, Industry
Canada provided
Mr. Dagg with the requested records. Certain exemptions were claimed
under the Act, none of which were the subject of any further complaint.
[5] Mr.
Dagg then brought a motion seeking an order dismissing the application for
judicial review because it had been rendered moot. He also sought costs.
The Decision of the
Federal Court
[6] The
Judge began his decision by correctly noting that section 41 of the Act
contains three prerequisites that must be met before an access requester may
apply to the Federal Court. Only one of the prerequisites was in issue: had
Mr. Dagg been refused access to the requested record?
[7] The
Judge then reviewed the recent decision of the Federal Court in Statham v.
Canadian Broadcasting Corp., 2009 FC 1028. The Judge discussed the Statham
decision in the following terms:
In Statham,
it is significant that the Court interprets the Act as granting the power to
cure a deemed refusal to the Office of the Information Commissioner
[Commissioner] upon conclusion of its investigation. This conclusion
effectively precludes the applicant from applying to the Federal Court under
section 41 of the Act if the [Commissioner] has approved a future commitment
date from the government institution.
[8] The
Judge viewed the facts in Statham to be similar to the facts before
him. He therefore concluded that:
27. […] it is appropriate to defer to my
colleague's interpretation of subsection 37(1) of the Act as set out in Statham,
supra and apply it to the facts of this motion. Accordingly, the [Commissioner]
cured the deemed refusal when it approved a new delay period, ending on
September 28, 2009, for the respondent to comply with the request. The
applicant's application for judicial review was premature as there was no
refusal for the purpose of section 41.
[9] On
the issue of costs, the Judge wrote:
28. Because I
have concluded, on the basis of Statham, supra, that this Court
had no jurisdiction to hear the underlying application for judicial review
pursuant to section 41 of the Act, but the law in this area has yet to be
determined by the Court of Appeal, I do not award costs against either party.
Consideration of the
Issue
[10] Mr.
Dagg argues that the Judge erred in law in failing to award costs to him. He
states that he believes he only received the requested documents because he
commenced his application in the Federal Court. He seeks reimbursement of the
legal fees he incurred in the amount of $3,405.00.
[11] This
Court may only interfere with the Judge's order as to costs if the Judge made
an error in principle, or if the costs award is plainly wrong. See: Hamilton v. Open
Window Bakery Ltd., [2004] 1 S.C.R. 303 at paragraph 27.
[12] In
reasons cited as Statham v. Canadian Broadcasting Corp., 2010 FCA 315
this Court found that the Federal Court erred when it interpreted the Act to
empower the Commissioner to "cure" deemed refusals by establishing a
commitment date so as to in effect extend the time frames established in the
Act. The Court also affirmed that no distinction exists between a deemed
refusal of access and a refusal based upon exemptions or exclusions in the Act.
[13] Applying
those conclusions to the present case, when Mr. Dagg commenced his application
for judicial review Industry Canada was deemed, under subsection 10(3) of the
Act, to have refused access to him. This was because access was not provided
within the extended time period set under subsection 9(1) of the Act.
Subsequently, after the application for judicial review was commenced, access
was provided. At that time, Mr. Dagg correctly took the position that his
application had become moot.
[14] By
following the decision of the Federal Court in Statham, the Judge
committed an error in principle. Mr. Dagg's application for judicial review
was not premature when it was commenced. The three prerequisites under section
41 of the Act were all met. Throughout, the Federal Court had jurisdiction
under section 41 of the Act. Later, when access was provided the application
was rendered moot.
[15] But
for that error of principle, the Judge would have considered Mr. Dagg's claim
for costs on the basis that his application had been properly commenced, but
had been rendered moot. The Judge would also have considered that Mr. Dagg was
provided with the requested records after the application for judicial review
was commenced, some 20 months after the access request had been filed. In the
specific circumstances now before the Court, considering the above factors, I
conclude that the Court should have ordered that Mr. Dagg was entitled to have
his costs in the Federal Court.
[16] As
to the quantum of such costs, Mr. Dagg is effectively seeking costs on a
solicitor-and-client basis. The jurisprudence is well settled that
solicitor-and-client costs are "generally awarded only where there has
been reprehensible, scandalous or outrageous conduct on the part of one of the
parties." See: Young v. Young, [1993] 4 S.C.R. 3 at page 134. The
conduct of Industry Canada cannot be so characterized.
[17] Rule
407 of the Federal Courts Rules provides that unless the Court otherwise
orders, party-and-party costs shall be assessed in accordance with column III
of the table to Tariff B of the Federal Courts Rules. I would order
that Mr. Dagg be paid his costs in the Federal Court assessed on that basis.
[18] In
reaching this conclusion, I have considered the respondent’s submission that to
award costs in this case "may well encourage the practice by complainants
of initiating applications for judicial review before the expiry of timelines
for disclosure, knowing that they can pursue their costs in these kind[s] of
moot applications." However, an award of party-and-party costs does not
indemnify a litigant. It is a contribution to a party’s solicitor-and-client
costs. Because complainants will expend more money in legal fees than they
receive as costs, I see little danger in the particular circumstances before me
in awarding costs to Mr. Dagg. Further, the respondent’s concerns are based on
the incorrect premise that the Commissioner possesses the power to extend the
time frames established in the Act.
[19] For
these reasons, I would allow the appeal and, pronouncing the order the Judge
should have, I would order that the appellant receive his costs in the Federal
Court, assessed on the basis of the midpoint of column III of the table to
Tariff B of the Federal Courts Rules. As the appellant was
successful on this appeal I would award him his costs of the appeal.
“Eleanor
R. Dawson”
“I agree
Johanne
Trudel J.A.”
“I concur
Robert M. Mainville J.A.”
APPENDIX
Sections 7, 9, 10 and 41 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.
[…]
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.
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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.
. . .
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.
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