Docket:
A-229-13
Citation:
2014 FCA 30
CORAM:
DAWSON J.A.
STRATAS
J.A.
NEAR
J.A.
|
BETWEEN:
|
|
PATRICK WHITTY
|
|
Appellant
|
|
and
|
|
THE ATTORNEY GENERAL OF CANADA
AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT
|
|
Respondent
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on February 3, 2014)
STRATAS J.A.
[1]
Mr. Whitty appeals from the judgment of the
Federal Court (per Justice Snider): 2013 FC 595. The Federal Court
dismissed his application for judicial review.
[2]
This matter concerns Mr. Whitty’s access
requests to Environment Canada under the Access to Information Act,
R.S.C. 1985, c. A-1.
[3]
The Federal Court found that Mr. Whitty made
three complaints to the Office of the Information Commissioner:
(1)
Mr. Whitty’s first complaint concerned Environment
Canada’s assertion of a two hundred day extension of time to respond to his
access request. In response to Mr. Whitty’s complaint, the Office found the
extension to be valid and reasonable. Mr. Whitty did not seek judicial review
of the Office’s finding.
(2)
Mr. Whitty’s second complaint was made after Environment
Canada had failed to respond to his access request within the two hundred day
extension of time. Before the Office could issue its report concerning the
complaint, Environment Canada responded to Mr. Whitty’s request, redacting many
portions of many documents based on exemptions to disclosure under the Act. The
Office, viewing this complaint as being one about the failure to produce
documents within the two hundred day extension of time, recorded the complaint
as “resolved.”
(3)
Mr. Whitty’s third complaint concerned the
redactions made by Environment Canada, purportedly based on exemptions to
disclosure under the Act. Mr. Whitty made this complaint in June 2012.
[4]
On July 23, 2012, just one month after making
his third complaint to the Office, Mr. Whitty applied for judicial review in
the Federal Court.
[5]
The Federal Court characterized the application
for judicial review as a challenge to Environment Canada’s assertion of
exemptions and the making of redactions – in other words, a judicial review concerning
Mr. Whitty’s third complaint. Mr. Whitty disagrees and submits that the
judicial review in fact concerned the second complaint.
[6]
The Federal Court’s characterization of the
application for judicial review is largely a factual matter. Accordingly, on
appeal, Mr. Whitty must convince us that the Federal Court’s characterization
is vitiated by palpable and overriding error: Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235. He has not done so. The application asks for
“complete” and “unredacted” copies of documents, matters that fell within the
ambit of the third complaint. This is evidence upon which the Federal Court
could rely in characterizing the application before it.
[7]
We note that even if the application for judicial
review concerned the second complaint, that complaint was resolved. An
application for judicial review from it is moot and the Federal Court would
have properly dismissed it on that ground.
[8]
Having characterized the judicial review as being
concerned with Mr. Whitty’s third complaint, the Federal Court relied on
section 41 of the Act and concluded that the application for judicial review
was premature. Section 41 of the Act provides that a judicial review can be
brought only after the Office has investigated and reported on the relevant
complaint: see, e.g., Statham v. Canadian Broadcasting Corporation,
2009 FC 1028 at paragraph 18, aff’d 2012 FCA 315. At the time the application
for judicial review was brought, the Office had not even appointed an
investigator to examine Environment Canada’s assertion of exemptions and
redactions to the documents. Section 41 is of the Act is a statutory expression
of the common law doctrine that, absent exceptional circumstances, all adequate
and alternative remedies must be pursued before resorting to an application for
judicial review. Since the Office had not completed its investigation and had
not issued its report, in the Federal Court’s view an application for judicial
review did not lie.
[9]
We see no grounds to interfere with the Federal Court’s interpretation
and application of section 41 to the facts of this case.
[10]
Therefore, for the foregoing reasons, we will dismiss the appeal
with costs. We note that after the Office investigates and reports on Mr.
Whitty’s third complaint, this decision is not a bar to a new application for
judicial review from the Office’s report.
“David
Stratas”
Email this Content