Date: 20020425
Docket: A-633-01
Neutral citation: 2002 FCA 150
CORAM: STRAYER J.A.
DÉCARY J.A.
ROTHSTEIN J.A.
B E T W E E N:
THE CHAIRMAN OF THE CANADIAN CULTURAL
PROPERTY EXPORT REVIEW BOARD
Appellant
--and--
THE INFORMATION COMMISSIONER OF CANADA
Respondent
Dealt with without appearance of counsel at Ottawa, Ontario, April 25, 2002
JUDGMENT delivered at Ottawa, Ontario, on Thursday, April 25, 2002
REASONS FOR JUDGMENT BY: Strayer J.A.
CONCURRED IN BY: Décary J.A.
Rothstein J.A.
Date: 20020425
Docket: A-633-01
Neutral citation: 2002 FCA 150
CORAM: STRAYER J.A.
DÉCARY J.A.
ROTHSTEIN J.A.
BETWEEN:
THE CHAIRMAN OF THE CANADIAN CULTURAL
PROPERTY EXPORT REVIEW BOARD
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
[1] This is a motion in writing by the respondent to have the appeal dismissed for mootness.
[2] The appeal is from a decision of September 27, 2001 by Rouleau J. in which he ordered the applicant Chairman to disclose 13 pages of records to the journalist who had requested same under the Access to Information Act (R.S.C. 1985, c. A-1). These records related to a tax credit which Mr. Mel Lastman, former mayor of North York, had obtained by donating documents, photos, etc. relating to his time as mayor. As a result of a review by the Canadian Cultural Property Export Review Board ("the Board") he was given a tax credit of $55,000.
[3] Rouleau J. ordered disclosure of the 13 documents because he found, inter alia, that the nature of the documents and the specifics of the tax credit had already been made public by Mr. Lastman at a press conference on January 11, 1999, as well as through other common knowledge in the public domain flowing from Mr. Lastman's career. Therefore by virtue of paragraph 19(2)(b) of the Act the information should be disclosed because it was already publicly available.
[4] The Chairman of the Board filed an appeal in this Court and sought a stay of the order for disclosure issued by Rouleau J. By an order of January 25, 2002 Rothstein J.A. refused such a stay. On February 18, 2002 the Chairman released to the journalist the 13 pages of records in question.
[5] The Chairman nevertheless seeks to proceed with the appeal from Rouleau J.'s order. The respondent Information Commissioner in the present motion seeks to have that appeal dismissed as moot.
[6] I am of the view that the appeal should be dismissed for mootness. It is clear that the contents of the 13 documents in question are now in the public domain. The rights of the parties as far as these document are concerned cannot be affected by any decision on the appeal. This is determinative of the issue of mootness. (Borowski v. Canada [1989] 1 S.C.R. 342 at 353). Nor is this a case where the Court should exercise its discretion to hear the appeal notwithstanding its mootness. (See Borowski supra at pp. 358-63). While the two opposing parties in these proceedings may have many issues to litigate in the future, such issues will presumably not involve protection from disclosure of personal information concerning those who have already disclosed it to the public. While the application judge may have cited some other possible reasons for denying protection from disclosure the central ground was that the information was already publicly available. It would not be economical of judicial resources to ruminate further on reasons mentioned by the application judge which were not determinative of the result. Dismissal for mootness will be more conducive to judicial economy, and more respectful of the principle that appellate judges are not best employed in deciding hypothetical issues unnecessary to uphold or set aside actual decisions under appeal.
[7] I have noted the appellant Chairman's objection to this motion being disposed of in writing, but can see no reason why even more time of the Court needs to be devoted to an oral hearing of this matter. This motion has been fully and clearly argued in writing. The fact that the motion may lead to the termination of the appeal does not alter that situation. The Court accepts, however, that such a motion requires consideration by three judges if it may lead to dismissal of the appeal, and such consideration has been given.
[8] The motion will therefore be granted and the appeal will be dismissed for mootness, all with costs.
(s) "B.L. Strayer"
J.A.
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