Date: 20030207
Docket: A-233-01
Neutral citation: 2003 FCA 68
CORAM: DÉCARY J.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
THE MINISTER OF ENVIRONMENT CANADA
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
ETHYL CANADA INC.
Added Respondent
and
GENERAL MOTORS OF CANADA LIMITED,
DAIMLERCHRYSLER CANADA INC., HONDA CANADA INC.
AND TOYOTA CANADA INC.
(Collectively, the "MOTOR VEHICLE MANUFACTURERS")
Interveners
Heard at Ottawa, Ontario, on January 21 and 22, 2003.
Judgment delivered at Ottawa, Ontario, on February 7, 2003.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: DÉCARY J.A.
SHARLOW J.A.
Date: 20030207
Docket: A-233-01
Neutral citation: 2003 FCA 68
CORAM: DÉCARY J.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
THE MINISTER OF ENVIRONMENT CANADA
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
and
ETHYL CANADA INC.
Added Respondent
and
GENERAL MOTORS OF CANADA LIMITED,
DAIMLERCHRYSLER CANADA INC., HONDA CANADA INC.
AND TOYOTA CANADA INC.
(Collectively, the "MOTOR VEHICLE MANUFACTURERS")
Interveners
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision by Blanchard J. ([2001] 3 F.C. 514) granting the application, filed by the Information Commissioner of Canada (Information Commissioner), to review the decision of the Minister of Environment Canada (Minister), on the advice of the Privy Council Office (PCO), denying the applicant Ethyl Canada Inc. (Ethyl) access to four documents which both the Minister and the PCO determined are Cabinet confidences.
The Law
[2] The relevant legislation is as follows.
Section 25 of the Access to the Information Act (the Access Act):
| 25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
|
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
|
Section 69 of the Access Act:
|
69. (1) This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,
(a) memoranda the purpose of which is to present proposals or recommendations to Council;
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or decisions of Council;
(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).
...
|
69. (1) La présente loi ne s'applique pas aux documents confidentiels du Conseil privé de la Reine pour le Canada, notamment aux :
a) notes destinées à soumettre des propositions ou recommandations au Conseil;
b) documents de travail destinés à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;
c) ordres du jour du Conseil ou procès-verbaux de ses délibérations ou décisions;
d) documents employés en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;
e) documents d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'objet des communications ou discussions visées à l'alinéa d);
f) avant-projets de loi ou projets de règlement;
g) documents contenant des renseignements relatifs à la teneur des documents visés aux alinéas a) à f).
[...]
|
|
(3) Subsection (1) does not apply to
...
(b) discussion papers described in paragraph 1(b)
(i) if the decisions to which the discussion papers relate have been made public, ...
|
(3) Le paragraphe (1) ne s'applique pas à
[...]
b) aux documents de travail visés à l'alinéa (1)b), dans les cas où les décisions auxquelles ils se rapportent ont été rendues publiques [...]
|
Section 39 of the Canada Evidence Act:
|
39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
(2) For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are [page529] the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
...
|
39. (1) Le tribunal, l'organisme ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.
(2) Pour l'application du paragraphe (1), un
« renseignement confidentiel du Conseil privé de la Reine pour le Canada » s'entend notamment d'un renseignement contenu dans :
a) une note destinée à soumettre des propositions ou recommandations au Conseil;
b) un document de travail destiné à présenter des problèmes, des analyses ou des options politiques à l'examen du Conseil;
c) un ordre du jour du Conseil ou un procès-verbal de ses délibérations ou décisions;
d) un document employé en vue ou faisant état de communications ou de discussions entre ministres sur des questions liées à la prise des décisions du gouvernement ou à la formulation de sa politique;
e) un document d'information à l'usage des ministres sur des questions portées ou qu'il est prévu de porter devant le Conseil, ou sur des questions qui font l'objet des communications ou discussions visées à l'alinéa d);
f) un avant-projet de loi ou projet de règlement.
[...]
|
|
(4) Subsection (1) does not apply in respect of
...
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, ...
|
(4) Le paragraphe (1) ne s'applique pas à
[...]
b) à un document de travail visé à l'alinéa (2)b), dans les cas où les décisions auquelles il se rapporte ont été rendues publiques [...]
|
[Emphasis added]
Background
[3] The relevant facts are set out in full in the decision under appeal. For present purposes, it is sufficient to recall that on September 22, 1997, a request was made by Ethyl under the Access Act for access to Cabinet information dealing with a fuel additive known as Methylcyclopentadienyl Manganese Tricarbonyl (MMT). The request was worded as follows:
Discussion Papers, the purpose of which is to present background explanations, analysis of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT).
[4] Cabinet's decision with respect to MMT had been made public on May 19, 1995 when the government introduced Bill C-94, the Manganese-based Fuel Additives Act. Bill C-94 was reintroduced as Bill C-29 on April 22, 1996 and was adopted by Parliament on April 25, 1997 (S.C. 1997, C-11). The purpose of the statute was to prohibit the inter-provincial trade and import for commercial purposes of MMT and gasoline containing MMT.
[5] Further to Ethyl's request, the Minister identified four documents dealing with MMT but then denied the request on the basis that such documents were Cabinet confidences. One of the documents was said to come within paragraph 69(1)(a) of the Access Act (memoranda to Cabinet) and the other three were identified as paragraph 69(1)(e) documents (briefs to Ministers).
[6] On March 17, 1998, Ethyl complained to the Information Commissioner and on March 30, 1999, the Information Commissioner issued a report which concluded that Ethyl's complaint was well founded and recommended that the relevant information relating to background explanations, analyses of problems or policy options should be treated as "discussion papers" described in paragraph 69(3)(b) and severed pursuant to section 25 of the Access Act.
[7] The Minister decided not to follow this recommendation and the Information Commissioner filed an application for judicial review pursuant to section 42 of the Access Act. In the course of the proceedings the Clerk of the Privy Council objected to the disclosure of the documents and on August 11, 2000, issued a certificate under paragraphs 39(2)(a) and (e) of the Canada Evidence Act (CEA) certifying that the four documents at issue were Cabinet confidences.
The Decision under Appeal
[8] The Applications Judge found that he had jurisdiction to review the decision of the Minister pursuant to paragraphs 69(1)(a) and (e) of the Access Act, and to review the issuance of the certificate by the Clerk of the PCO under paragraphs 39(2)(a) and (e) of the CEA. In so holding, he recognized that the scope of his review was limited to a consideration of the evidence on the record and to any errors appearing "on the face" of the certificate.
[9] The Applications Judge applied a standard of correctness on the basis that the alleged errors went to the interpretation of the legislation and were thus errors of law. He also found support for the application of a standard of correctness on the basis that the purpose of the Access Act is to provide the public with greater access to government documents (see Canadian Council of Christian Charities v. Minister of Finance, [1999] 4 F.C. 245 at paragraph 13, per Evans J. as he then was).
[10] In considering the evolution of the Cabinet paper system, the Applications Judge found that the type of discussion previously reflected in a separate document identified as a "discussion paper" was, during the period in issue, moved to the "analysis" section of a document referred to as a "memorandum to Cabinet" (or M.C.). He then analysed the words, purpose and intent of Parliament in enacting paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the CEA and concluded that Parliament did not intend to allow Cabinet to circumvent the application of the legislation by merely incorporating one accessible document into another which is not. He held that it was the contents of a document, rather than its title, which ought to govern and attributed the refusal to produce the requested documents to a misapprehension of the legal effect of the relevant legislation.
[11] The Applications Judge ordered that the documents at issue be returned to the Clerk of the PCO for determination of the issue whether they contain background explanations, analyses of problems or policy options that can reasonably be severed. The relevant part of the order reads as follows:
2. The four documents which both the Minister and the Privy Council Office determined as Cabinet confidences are to be returned for review by the Clerk of the Privy Council to determine:
(a) Whether the documents contain background explanations, analysis of problems or policy options that can be reasonably severed from the documents pursuant to section 25 of the Access Act.
(b) If such information is deemed severable by the Clerk of the Privy Council Office, it is hereby ordered released to the applicant.
Alleged Errors in Judgement under Appeal
[12] Counsel for the appellant submitted that the Applications Judge did not have jurisdiction to review the determinations pursuant to section 69 of the Access Act and section 39 of the CEA. In particular, he did not have jurisdiction to review the extrinsic evidence relating to the evolution of the Cabinet paper system. The appellant further submitted that the recent decision of the Supreme Court in 2002 SCC 57">Babcock v. Canada (Attorney General), 2002 SCC 57, (2002 SCC 57">Babcock) is confirmation of this limited scope of judicial review.
[13] If there was jurisdiction, counsel for the appellant argued that the Applications Judge erred in applying a standard of correctness to the determinations made under section 69 of the Access Act and section 39 of the CEA. A more deferential standard is said to be applicable by reason of the limited scope of review available to the courts, the superior information available to the executive and the knowledge and expertise of the Clerk of the PCO in dealing with Cabinet matters.
[14] Counsel for the appellant also argued that the Applications Judge erred in construing "discussion papers" in section 69 of the Access Act and "discussion paper" in section 39 of the CEA to mean not the record or document, but rather any information that consists of background explanations, analyses of problems or policy options, and in requiring that such information be severed from the excluded records and released. According to the appellant, only the purpose of the document as a whole may be considered, and should a document have more than one purpose, it is the dominant purpose which governs. Hence, an identifiable segment of a memorandum to Cabinet which comes within the four corners of paragraphs 69(3)(b) and 39(4)(b) would not be accessible under the Act.
[15] In any event, counsel for the appellant submitted that the Applications Judge had no factual basis to support his finding that the type of discussion previously reflected in "discussion papers" could now be found in any document other than "memoranda to Cabinet". As such, his order with respect to the three documents identified as briefs to Ministers within the meaning of paragraph 69(1)(e) was without any evidentiary foundation.
[16] Finally, the appellant argued, with the support of the interveners, that the Applications Judge erred by ordering that any severable information be disclosed, thereby denying the Minister the opportunity to invoke any exemption that might apply to this information under sections 13 to 26 of the Access Act.
Analysis and Decision
[17] With respect to this last argument, I agree that the Minister should be given an opportunity to claim any exemption that might apply. I recognize that the case law suggests that a government institution ought to claim the relevant exemptions at the initial stage; at least insofar as non-mandatory exemptions are concerned (see Davidson v. Canada, [1989] 2 F.C. 341 and Canada (Information Commissioner) v. Canada (Minister of National Defence), [1999] F.C.J. No. 522 (Q.L.)).
[18] However, this is a novel case where, from the outset, the government officials took the position that the four documents in issue were entirely outside the purview of the Access Act. I am satisfied that, owing to that approach, those charged with the task of reviewing the documents have not turned their mind to the exemptions which might come into play if parts of the requested documents are to be released. In the circumstances, and having regard to the fact that third party rights may be affected, it would be just and appropriate to vary the order of the Applications Judge to allow the head of the government institution the opportunity to consider and claim any exemption that may apply.
[19] Otherwise, and subject to a precision which I will suggest be brought to the order given by the Applications Judge, I am of the view that the appeal ought to be dismissed.
[20] With regard to the scope of the Court's jurisdiction to review the certificate issued under section 39 of the CEA, I find that the decision of the Applications Judge is entirely consistent with the recent decision of the Supreme Court in 2002 SCC 57">Babcock. The judgment in 2002 SCC 57">Babcock makes clear that the courts can review decisions which "do not flow from statutory authority clearly granted and properly exercised" and may consider "surrounding evidence" to determine whether statutory power has been properly exercised (see 2002 SCC 57">Babcock, at paragraphs 39-41).
[21] In the present case, the Applications Judge set out to determine whether the section 39 certificate had been lawfully issued, without examining the information contained in the documents. In conducting this review, he considered evidence regarding the evolution of the Cabinet paper system which led him to conclude that the Clerk had misapprehended the law. In so doing, he acted within the confines of the limited scope of review described in 2002 SCC 57">Babcock.
[22] With respect to the standard of review to be applied, I agree with the Applications Judge that the standard of correctness is the appropriate standard having regard to the error of law which he identified.
[23] Turning to the alleged error in the Applications Judge's assessment of the evidence, I believe it was open to him to conclude that "discussion papers" as referred to in paragraph 69(1)(b) of the Access Act could be found in the memoranda to Cabinet described in paragraph 69(1)(a) as well as in the briefs to Ministers within the meaning of paragraph 69(1)(e). Of significance in this regard is the initial refusal by the Access to Information and Privacy Coordinator indicating that "although discussion papers no longer form part of the Cabinet Papers System, all documents containing the requested information are excluded in accordance with paragraphs 69(1)(a) and 69(1)(e) of the Access to Information Act" [emphasis added] (Appeal Book, volume 21, page 3745).
[24] Finally, the appellant's argument that the Applications Judge erred in construing the words "discussion papers" in section 69 of the Access Act and "discussion paper" in section 39 of the CEA must also fail. I agree that the definitions refer to "discussion paper(s) the purpose of which is to present" the specified "explanations," "analyses" or "options" to Cabinet "for [its] consideration ... in making decisions" and not to information per se [emphasis added]. However, as I understand the decision of the Applications Judge, it is based on a finding that the written discussion so described, which was previously reflected in a separate document prepared for that purpose, is now made part of other documents to Cabinet, and his order was intended to compel the disclosure of such discussion to the extent that it continues to be produced, albeit within or appended to other documents (Particular reference is made to paragraph 56 of the Reasons).
[25] I recognize that the order of the Applications Judge is potentially confusing on this point because it does not expressly refer to the purpose contemplated by paragraphs 69(1)(b) of the Access Act and 39(2)(b) of the CEA. This purpose is essential to the validity of the order and it cannot be ascertained with respect to the documents in issue unless there is, within those documents or appended to them, an organized body or corpus of words that meets the definition of "discussion paper(s)". The order should be modified accordingly.
[26] To be clear, it is not intended that the person charged with the review of the documents conduct a line by line analysis and identify, for example, information about a background explanation within part of a document which cannot stand alone as a "discussion paper". What is required is that the person determine whether there is within or appended to the documents an organized body or corpus of words which, looked upon on it own, comes within the definition.
[27] I would therefore allow the appeal to the limited extent indicated by these reasons, and vary paragraph 2 of the order given by the Applications Judge as follows:
2. The four documents which both the Minister and the Privy Council Office determined as Cabinet confidences are to be returned for review by the Clerk of the Privy Council to determine:
(a) whether there exists within or appended to the documents a corpus of words the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions, that can be reasonably severed from the documents pursuant to section 25 of the Access Act;
(b) if such severable corpus of words is found to exist by the Clerk of the Privy Council Office, it is hereby ordered that it be severed and released to the applicant subject to any exemption which may be claimed by the head of the government institution.
[28] As the position of the respondent and the added respondent has been substantially maintained, costs should be awarded in their favour.
[29] The appellant however contends that the Information Commissioner should not be awarded the costs associated with the appeal books since the bulk of the documents comprised in the appeal books were not referred to in the memoranda of fact and law or during oral submissions and hence were unnecessary. The appellant brought this concern to the attention of the Court when an order was sought to determine the contents of the appeal books.
[30] The Court (Létourneau J.A.) indicated at that time:
It is simply impossible to appreciate, at this stage of the appeal, the relevancy and usefulness of each and every piece of material. Experience tells me that it is very rare indeed that the parties on appeal refer to all the material in the appeal books, especially when there are so many. In fact, for convenience, and the Commissioner is known for resorting to this useful practice, the parties often prepare a Compendium of the material that they intend to use. It is true that the appeal books remain available to supplement these Compendiums. Prudence and wisdom also advise me, if I have to err, that it is preferable to err on the safe side. Therefore, I will accede to the Information Commissioner's request, but impose upon the Commissioner an obligation to have another look at the material with a view to eliminating what is not required to dispose of the issues on appeal. I will reserve to the panel hearing the appeal the right to adjudicate on the costs of the appeal books irrespective of the decision on the merits of the appeal.
[31] I reiterate my colleague's suggestion that the documents contained in the appeal book should be restricted to those which are necessary for the disposition of the appeal. However, I believe that in this case the Information Commissioner was justified in insisting that all the documents produced before the Applications Judge be made available to the panel hearing the appeal. In particular, the evidence concerning the evolution of the Cabinet paper system, which is at the heart of the decision under appeal, justified the Information Commissioner's insistence that the full record be placed before the Court of Appeal.
[32] The award of costs to the Information Commissioner should therefore include the costs associated with the appeal books.
[33] Finally, no costs ought to be awarded to the interveners as the order under which they were granted leave to intervene specified that they were not entitled to costs.
"Marc Noël"
J.A.
"I agree.
Robert Décary J.A."
"I concur.
K. Sharlow J.A."
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-233-01
STYLE OF CAUSE: THE MINISTER OF ENVIRONMENT OF CANADA
and
THE INFORMATION COMMISSIONER OF CANADA ET AL
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 21 and 22, 2003
REASONS FOR JUDGMENT OF THE COURT: NOËL J.A.
CONCURRED IN BY: DÉCARY J.A.
SHARLOW J.A.
DATED: February 7, 2003
APPEARANCES BY:
David Sgayias, Q.C. For the Appellant
Brian J. Saunders
Christopher Rupar
Daniel Brunet For the Information Commissioner of Canada
Marc-Aurèle Racicot
Patricia Boyd
Peter H. Griffin For Ethyl Canada Inc.
Matthew Sammon
David Kent For the Intervener
SOLICITORS OF RECORD
Mr. Morris Rosenberg For the Appellant
Deputy Attorney General of Canada
Office of the Information Commissioner For the Information Commissioner of Canada
of Canada
Ottawa, Ontario
Lenczner Slaght Royce Smith Griffin For Ethyl Canada Inc.
Toronto, Ontario
McMillan Binch For the Intervener
Toronto, Ontario
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