Docket: T-573-17
Citation:
2017 FC 1152
Ottawa, Ontario, December 14, 2017
PRESENT: The
Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
MARGARET
FRIESEN
|
|
Applicant
|
|
and
|
|
MINISTER OF
HEALTH
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application by Margaret Friesen
brought under section 41 of the Access to Information Act [Act], RSC,
1985, c A-1. Ms. Friesen is aggrieved by the failure of the Department of
Health [Department] to produce certain documents she believes ought to have
been produced in response to her January 2015 Access to Information request.
[2]
The central focus of Ms. Friesen’s Access to
Information request concerned the testimony of an employee of the Department in
a Quebec court proceeding. In particular, she wanted to see departmental records
relevant to that testimony.
[3]
Certain records were initially produced but Ms.
Friesen was unsatisfied. She made a complaint to the Office of the Information
Commissioner. In the course of the Commissioner’s investigation, it was
determined that relevant material might be found in Department of Justice files
and a search was carried out. This resulted in a further disclosure of
documents. Ms. Friesen remained dissatisfied and communicated again with the
Department’s Access to Information Privacy Division. This, in turn, resulted
in a disclosure of three more documents that had been “inadvertently”
omitted from the previous disclosure.
[4]
On March 7, 2017, the Commissioner wrote to Ms.
Friesen and informed her that, although the Department’s efforts were initially
deficient, it had rectified the lapses and “processed
all responsive records”. Her complaint was recorded as “well-founded and resolved”.
[5]
Ms. Friesen remained unconvinced that all of the
relevant records had been produced to her and she brought this application.
[6]
Although Ms. Friesen’s application seeks relief
in the form of “a full and thorough review of Health
Canada’s decision to deny the Applicant access to the requested records”,
her affidavit includes demands for explanations for the content of some of the
documents she received.
[7]
At the heart of Ms. Friesen’s ongoing concern is
a belief that other relevant documents must exist and that the Department’s
searches to date have been deficient. She is particularly concerned about the
potential for “latent” records in digital form
that, despite being electronically purged, might be forensically retrievable.
Although she has no evidence or knowledge that such records do exist, she
expressed the sentiment that it would be “highly
unusual” or “rather odd” that they would
not be available or accessible.
[8]
On considering a section 41 application, the
scope of this Court’s jurisdiction must be recognized. It is only through the
Act that this Court has any authority to compel the per se disclosure of
government records. Section 41 provides the following:
|
Review by
Federal Court
|
Révision par
la Cour fédérale
|
|
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.
|
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.
|
[9]
The above provision must also be considered
while having regard to section 49 of the Act, which states:
|
Order of Court
where no authorization to refuse disclosure found
|
Ordonnance de
la Cour dans les cas où le refus n’est pas autorisé
|
|
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.
|
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.
|
[10]
The above provisions have been repeatedly
considered in this Court and by the Federal Court of Appeal. Without
exception, those decisions have held that the Federal Court can only provide
relief to an applicant where there has been an unlawful refusal to disclose an
identified record. One of the clearest statements to this effect can be found
in Olumide v Canada (AG), 2016 FC 934, [2016] 6 CTC 1, where
Prothonotary Mireille Tabib held:
[18] To the extent the application is
an application pursuant to s 41 of the ATIA for judicial review of
the CRA’s refusal to disclose the telephone records requested, I am satisfied
that it is plain and obvious that it cannot succeed. Our Court has made it
clear on a number of occasions that where, in response to a request for
information (whether under the ATIA or the Privacy Act, RSC 1985
c P-21), a department responds that a record does not exist, such a response
does not constitute a refusal of access. Absent a refusal, the Court does not
have jurisdiction in judicial review pursuant to s 41 of the ATIA or the
Privacy Act, unless there is some evidence, beyond mere suspicion, that
records do exist and have been withheld. See Clancy v Canada (Minister of
Health), 2002 FCJ No 1825, Wheaton v Canada Post Corp, 2000 FCJ No
1127, Doyle v Canada (Minister Human Resources Development), 2011 FC
471, Blank v Canada (Minister Environment), 2000 FCJ No 1620.
[19] As mentioned, it is plain that the
“refusal” here is based on the CRA’s conclusion that no records such as those
requested exist, and the Information Commissioner’s report of investigation
agrees with that conclusion. No evidence, or even cogent argument, has been
submitted by the Applicant to support a conclusion that the records exist or
are being withheld. It is plain and obvious that this Court can have no
jurisdiction in this matter pursuant to s 41 of the ATIA.
[11]
More recently, in Blank v Canada (Justice),
2016 FCA 189, [2016] FCJ No 694 (QL), the Federal Court of Appeal considered
the issue of this Court’s reviewing authority in connection with a demand that
a further search for records be ordered. At paragraph 36, the Federal Court of
Appeal held:
[36] Once again, the primary oversight
role under the Act remains with the Commissioner. The Federal Court’s role is
narrowly circumscribed; section 41, when read in conjunction with sections 48
to 49, confines its reviewing authority to the power to order access to a
specific record when access has been denied contrary to the Act. Unless
Parliament changes the law, it is not for the Court to order and supervise the
gathering of the records in the possession of the head of a government
institution or to review the manner in which government institutions respond to
access requests, except perhaps in the most egregious circumstances of bad
faith. On the basis of the confidential record that is before me, I have been
unable to find evidence that would lead me to believe, on reasonable grounds,
that there has been any attempt to tamper with the integrity of the records.
Accordingly, the Judge did not err in concluding that he lacked jurisdiction to
order a further search of the records. [Emphasis added.]
Also see: Blank v Canada (Justice),
2015 FC 956, [2015] FCJ No 949 (QL); Connolly v Canada Post Corp, 2002
FCA 50, [2002] FCJ No 185 (QL); and X v Canada, [1991] 1 FC 670, 41 FTR
73.
[12]
All of these cases confirm that the Federal
Court’s authority under sections 41 and 49 of the Act does not include an order
to compel a further search for unidentified documents or to explain the meaning
or significance of records that have been disclosed. The Court also lacks the
authority to consider the wisdom of government document retention policies.
Finally, the Court’s jurisdiction to order relief arises only where the head of
a government institution or department refuses, without lawful justification,
to produce a known record.
[13]
In this case, there has been no refusal to
disclose a known record. The Commissioner conducted an investigation and
reasonably concluded that no responsive records were being withheld from Ms.
Friesen. Ms. Friesen’s concern about the potential existence of further records
amounts to speculation which could only be remedied by an order compelling the
Department to conduct a further search of its records – an authority this Court
does not enjoy: see the Federal Court of Appeal decision in Blank,
above, at para 36.
[14]
In the result, this application is dismissed. I
note the Minister’s request for costs of $2,660.00. However, it does seem to
me that the Commissioner’s decision letter had the potential to mislead Ms.
Friesen where it stated that an application to the Federal Court could be made
to “review the Department’s decision to deny you
access to requested records”. Here, there was no denial of access
of the sort that could trigger judicial relief. The Commissioner would be well
advised to remove the highlighted statement from decisions of the sort made
here where it is determined that all responsive records have been disclosed.
That said, Ms. Friesen had an opportunity to reconsider the merits of her case
upon receipt of the Minister’s Memorandum of Fact and Law and the supporting
legal authorities. She nevertheless pressed on with her application and was
unsuccessful. I accordingly award costs to the Minister of $500.00.
Email this Content