Imperial Consultants Canada Ltd. v. Canada (Minister Of Citizenship And Immigration), 2001 FCT 1107

Date: 20011010

Docket: T-2158-98

                                                                                                Neutral Citation: 2001 FCT 1107

BETWEEN:                                                                                                           

                               IMPERIAL CONSULTANTS CANADA LIMITED

                                                                                                                                          Applicant

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                      Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 This is an application for judicial review, brought pursuant to section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 (Act), of a decision of the Minister of Citizenship and Immigration exempting certain records requested by the applicant from release pursuant to various provisions of the Act.

[2]                 In refusing to disclose the records, the Minister relied on the following provisions of the Act, either alone or in combination: sections 13(1)(a) and (c), 14, 15, 16(1)(a)(b)(c), 19(1), 20(1)(c), 21(1)(a)and (b), and 23.

[3]                 By a series of letters dated October 29, 1996 and January 20, 1997, Richard Kurland sought access to certain records in the possession of the respondent. By letter dated April 2, 1997 and October 29, 1997, the respondent released 813 pages of which 140 pages were partially severed and withheld 211 pages.

[4]                 Following an investigation and analysis by the Information Commissioner, on June 18, 1998 the respondent released a further 155 pages with some of the pages being partially severed. As well, following negotiations between the Information Commissioner and the respondent a further 26 pages previously withheld pursuant to section 17 were released on September 26, 1998. In a letter to Mr. Kurland dated September 29, 1998, the Information Commissioner reported on the results of his investigation and concluded the applicant had been provided with all the records to which he was entitled under the Act.

[5]                 On November 19, 1998, the applicant filed the within application for judicial review.   

[6]                 Subsequently, a further review by the respondent of the exempted records resulted in a release of additional exempted material on March 17, 1999.

[7]                 The information subject to review is contained in the March 19, 1999 supplemental confidential affidavit of Kathy Wesley. The applicant brought a motion for an order allowing counsel for the applicant to obtain a copy of the confidential affidavit. By Order of the Prothonotary dated January 20, 1999, the applicant's motion to obtain access to the confidential affidavit of Kathy Wesley was dismissed without reasons being given. No appeal was taken from this Order. For the purpose of these reasons, it is not necessary to review any other aspects of the extensive procedural history of this matter.

[8]                 During the public portion of the hearing of the within application, the Court heard submissions from both parties. The submissions were of a general nature focussing on the proper approach to the interpretation of the legislation having regard to the purpose of the Act and the burden on the respondent of establishing that the refusal to disclose a record is authorized by the exemption on which it relies. Since counsel for the applicant did not have access to the confidential affidavit, he was not in a position to specifically challenge any of the claimed exemptions. Following these submissions, in the absence of counsel for the applicant, the Court examined each of the documents and severed portions of documents contained in the confidential affidavit. Counsel for the respondent also made submissions regarding each of the exempted records.

[9]                 In Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.), at paragraphs 11 to 20 Evans J. (as he then was) provided an instructive summary of the legal principles applicable to a section 41 review. He stated:

11. This appears to be the first case in which the Court has been required to consider the scope of the exemptions from disclosure contained in paragraphs [page255] 18(d) and 21(1)(a) of the Access to Information Act. I approach this task within the framework of the well-established legal principles that inform the conduct of section 41 reviews, as they relate to the facts of this case.

12. First, it is necessary to consider the standard of review applicable to the Minister's refusal to disclose the information in question. Unlike some analogous provincial statutes, the federal Access to Information Act does not give to the Information Commissioner of Canada the statutory authority to decide whether a particular document should be disclosed. Instead, it confers on the Information Commissioner the power to investigate refusals to disclose and to make recommendations to the head of the government institution, in this case, the Minister of Finance. Since the Commissioner's recommendations are not legally binding the decision reviewed by the Federal Court under section 41 is the Minister's, not the Information Commissioner's.

13. Heads of government institutions are apt to equate the public interest with the reasons for not disclosing information, and thus to interpret and apply the Act in a manner that gives maximum protection from disclosure for information in their possession. Accordingly, there is no room for the kind of judicial deference to the Minister's interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the Minister, the power to determine whether information should be disclosed: see, for example, John Doe v. Ontario (Information & Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Div. Ct.).

14. However, while the Court is required to review the Minister's decisions on a standard of correctness it is certainly appropriate to have regard to the report and recommendations of the Information Commissioner. [page 256] The Commissioner is independent of the Executive and reports directly to Parliament, and has acquired an expertise in the administration of the Act as a result of the experience gained in the investigation of complaints of refusals to disclose.

15. Second, the statutory exemptions from the general duty to disclose information are to be construed narrowly so as not to derogate more than is clearly required by the Act from its overall purpose, which is to give legal expression to the general principle that government information should be available to the public: see subsection 2(1).

16. Third, for a similar reason section 48 imposes on the government the burden of establishing that the refusal to disclose a document, or part of a document, is legally authorized by the exemption on which it relies. Thus, in respect of the exemption claimed under paragraph 18(d) the Court will require clear proof that the Minister has reasonable grounds to believe that there was a reasonable expectation of probable harm of the prescribed kinds if the documents in question were disclosed.

17. Fourth, the nature of the decision to be made by the Court on review depends on the particular exemptions relied upon. Some, such as that contained in section 24, are mandatory, so that the Court is called upon to decide only if the information falls within the scope of the statutory exemption. If it does, that is the end of the matter, and the information must not be disclosed. If it does not, then the Court will order its disclosure: Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.), at page 280.

18. Other exemptions, however, are permissive and provide that the head of a government institution may refuse to disclose information of a given description: paragraphs 18(d), subsection 21(1) and section 23 [page257] are of this kind. When reviewing decisions made under permissive provisions, the Court must decide not only whether the information falls within that described in the relevant provision, but also, if it does, whether the head of the government institution lawfully exercised the discretion not to disclose it.

19. However, when reviewing the exercise of discretion under a permissive exemption the Court is not to decide how it would have exercised the discretion, but merely to review on administrative law grounds the legality of the exercise of that discretion by the Minister, in light of the overall purpose of the statute and of the particular exemption. Accordingly, if the Court concludes that the discretion was exercised unlawfully, the normal remedy will be to remit the matter to the head of the government institution for a re-determination in accordance with the Court's reasons, not an order by the Court that the document be disclosed: Canadian Jewish Congress, supra, at pages 280-282.

20. Fifth, in order to ensure that public access to information is restricted as little as possible, section 25 requires the head of the institution to disclose any portion of a record that does not contain exempted information and can reasonably be severed from the part that does.

[10]            Recently in Canada (Information Commissioner) v. Canada (Minister of Industry), [2001] F.C.J. No. 1327 at paragraph 47, Evans J.A. elaborated further on the appropriate standard of review in cases such as this. He concluded as follows:

In reviewing the refusal of a head of a government institution to disclose a record, the Court must determine on a standard of correctness whether the record requested falls within an exemption. However, when the Act confers on the head of a government institution a discretion to refuse to disclose an exempted record, the lawfulness of its exercise is reviewed on the grounds normally available in administrative law for the review of administrative discretion, including unreasonableness...

[11]            With these principles in mind, the Court reviewed each of the records withheld by the respondent. Appended to these reasons is a schedule of the documents reviewed by the Court. As noted earlier, in certain instances the respondent based its refusal to disclose the information on more than one provision of the Act.

[12]            With respect to the records exempted by the respondent pursuant to the mandatory provisions of paragraphs 13(1)(a) and 20(1)(c) of the Act as identified in the attached schedule, the Court finds the respondent has met the burden of establishing that the information comes within the relevant provision of the Act.

[13]            With respect to the records the respondent refused to disclose pursuant to the permissive provisions of the Act, namely sections 14(a), 15(1), 16(1)(a), (b), (c), 19(1), 20(1)(c), 21(1)(a), (b), and 23 as identified in the attached schedule the Court is satisfied that the information falls within the category of information contemplated by the relevant provision and that the respondent lawfully exercised her discretion in refusing to disclose the information.

[14]            The respondent also refused to disclose pursuant to subsection 15(1) of the Act information severed from page 1018. However, in light of the information disclosed at page 4 of exhibit "F" to the confidential affidavit of Kathy Wesley, the respondent has not demonstrated that the disclosure of the exempted information could reasonably be expected to be injurious to the conduct of international affairs.

[15]            Accordingly, the Minister's decision regarding page 1018 is remitted for a redetermination.

[16]            The application for judicial review in relation to the documents listed in the attached schedule is dismissed.

[17]            The issue of costs is reserved for submissions from the parties.

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

October 10, 2001

Date: 20011010

Docket: T-2158-98

BETWEEN:                                                                                                             

             IMPERIAL CONSULTANTS CANADA LIMITED

                                                                                                     Applicant

                                                    - and -

       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

SCHEDULE OF DOCUMENTS PARTIALLY OR TOTALLY EXEMPT

FROM DISCLOSURE

DUPLICATE PAGES:

NOTE:

Page 12: this was disclosed in the public affidavit at page 691.

Page 33: was included in error in the schedule to confidential affidavit.