Rubin v. Canada (Minister of Foreign Affairs and International Trade), 2001 FCT 440

                                                                                                                                  Date: 20010507

                                                                                                                Court File No.: T-2304-98

                                                                                                       Neutral Citation: 2001 FCT 440

Ottawa, Ontario, this 7^th day of May, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                                   KEN RUBIN

                                                                                                                                            Applicant

                                                                         - and -

                                          THE MINISTER OF FOREIGN AFFAIRS

                                                 AND INTERNATIONAL TRADE

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of the Minister of Foreign Affairs and International Trade("FAIT") concerning the access to information request filed by Ken Rubin pursuant to the Access to Information Act, R.S.C. 1985, c.A-1 (the "Access Act").

[2]                On April 26, 1997, the applicant sought environmental screening records from FAIT related to the sale of Candu nuclear reactors to China. On April 29, 1997, the Access to Information and Privacy office (ATIP) contacted the office of Environment Services of FAIT and requested copies of all records related to the above request. On May 4, 1997, the office of Environment Services provided ATIP with four records which it determined were relevant to the request. One of those records was identified by the respondent as a Draft Report on the Survey of Studies Conducted by Atomic Energy of Canada Limited (AECL) on the Quinshan Candu Initiative (November 1996) (the "Survey Report").

[3]                On July 31, 1997, the applicant was provided a copy of three of the records determined by the office of Environment Services to be relevant to his request, but was not provided with a copy of the "Survey Report". A letter from the Coordinator of Access to Information and Privacy for FAIT, Mr. Howard Strauss, accompanied the records and stated the following:^[1]

This is in response to your requests for (a) documents related to the CANDU sale to China, and (b) documents related to environmental screening concerning CANDU. Attached are copies of documents related to your requests. Certain information has been exempted under sections 13(1)(a), 15(1), 18(a) (b) & (d), 20(1) (b) (c) & (d) and 21 (1) (a) & (b). You are aware of your right to complain.

This letter did not indicate which specific exemptions were applied to each of the withheld records. On September 28, 1999, one year after the July 31, 1997 letter, the ATIP wrote to the applicant to clarify that s.20 of the Access Act was used to exempt the "Survey Report" (although not specifically named at that time)^[2]. The letter also indicated that following third party consultations, paragraph13(1)(a) of the Access Act would also be used to exempt the "Survey Report".

[4]                On November 7, 1997, the applicant complained to the Information Commissioner that two documents, namely the "Survey Report" and an English translation of an environmental impact report prepared by the Shanghai Nuclear Energy Research Institute (the "Shanghai Report"), had not been properly identified by FAIT in the July 31, 1997 letter from Mr. Strauss.^[3]

[5]                Although the applicant argues that the "Shanghai Report" should in fact be referred to as the "AECL Site Report", this issue was dealt with by the Order of Madam Prothonotary Aronovitch, dated September 26, 2000, dismissing the applicant's motion to amend the application to substitute "AECL Site Report" in place of "Shanghai Report". This Order was upheld on appeal by Mr. Justice Dubé on October 19, 2000. The two documents at issue in this decision will therefore be referred to as the "Shanghai Report" and the "Survey Report".

[6]                According to the affidavit sworn February 19, 1999, of Ms. Jaye Shuttleworth,^[4] an official with FAIT, the "Shanghai Report" was used by FAIT over a limited period of time in November 1996 in meetings with departments of the Federal Government, an official from Marbek Resource Consultants Ltd. ("Marbek"), and officials from Atomic Energy of Canada Limited ("AECL"). The "Shanghai Report" was contained in a binder of materials provided by AECL. A photocopy of this binder was provided to Ms. Shuttleworth and Marbek, and was used throughout the weekend of November 2-3, 1996. This work culminated in the "Marbek Report" which was released to the public. Ms. Shuttleworth swears in her affidavit that she was informed by AECL that the "Shanghai Report" had been provided directly to AECL by the Chinese Government, in confidence and on the condition that it not be disclosed to the public. On or about November 7, 1996, all copies of the AECL binder were returned to AECL.

[7]                On October 23, 1998, the Information Commissioner concluded that the applicant's complaint was not well founded. The Information Commissioner wrote:^[5]

AECL Input Data ["Survey Report"]

As you know, during the course of the investigation the departement added paragraph 13(1)(a) to the             section 20 exemptions to exempt the entire subject record. After reviewing the document in question, I am satisfied that it was properly exempted. Paragraph 13(1)(a) was used to withhold information provided in confidence from an institution of the Chinese government. This is a mandatory exemption subject to the provisions of section 13(2). In this case, none applied.

[...]

For the foregoing reasons, it is my view that this part of your complaint is not substantiated and I will so Inform the institution.

Chinese Environmental Impact Report["Shanghai Report"]

During the course of this investigation, departmental officials explained the whereabouts of the subject record. Those officials have explained that, while the department at one time did have the subject report in            its possession, all copies of it were returned to AECL in late 1996, after Marbek ResourceConsultants concluded its report. This was in accordance with the terms under which AECL loaned the record to FAIT.

This said, I am troubled by the department's failure to recognize what, in my view, is its obligation under the National Archives Act's General Records Retention and Disposal Schedules to maintain records received during the course of operations of the department. FAIT's arrangement with AECL (to return all copies of the record), whether intentionally or not, has had the unfortunate effect of removing this record from the reach of the access law. I will be informing FAIT of my concerns in this regard in the hope that this kind of arrangement will be avoided in the future.

This said, I am satisfied the Chinese Environmental Impact Report is not now, nor was it at the time of your request, in FAIT's possession or under its control. Consequently, I have no choice but to find this part of your complaint not substantiated.

[8]                After the commencement of the application at bar, on June 10, 1999, the "Survey Report" was released to the applicant by the respondent. The respondent states that the "Survey Report" was released pursuant to paragraph s.13(2)(a) because the Chinese government no longer opposed its release.

[9]                The applicant raises two issues on judicial review. First, despite the release of the "Survey Report", the applicant is seeking this Court issue directions to FAIT concerning the late release of the report. Second, the applicant is seeking that this Court find the "Shanghai Report" is under the control of FAIT and order its release.

[10]            Turning to the first issue, the applicant relies on a decision by Mr. Justice Muldoon, Information Commissioner v. Minister of External Affairs^[6] in which the Court issued a declaration criticizing the department for the late release of the documents at issue in that case. The applicant points to sections 49, 50, and 51 of the Access Act which all state that "the Court...shall make such other order as the Court deems appropriate". According to the applicant, these are broad sections which provide for a wide range of possible relief, including relief which is declaratory or instructive.

[11]            In my view, it is not the role of this Court to order instructions to FAIT where there is no continuing refusal to disclose the records at issue, in this case the "Survey Report". The applicant has commenced this application for judicial review pursuant to section 41 of the Access Act which states that "any person who has been refused access to a record requested" may apply for judicial review. The applicant seeks an order pursuant to s.49 of the Access Act which states "[w]here the head of a government institution refuses to disclose a record requested under this Act....the Court...shall make such other order as the Court deems appropriate." Both section 41 and section 49 of the Access Act require, as a condition precedent, that the government institution refuse to disclose the record at issue. This is consistent with the purpose of the Access Act, as stated in section 2,which is to provide the public with a right of access to information in the records of government institutions. Once this right has been provided, there is no further remedy for this Court to order. Given that the "Survey Report" was released to the applicant on June 10, 1999, no remedy can be granted by this Court.

[12]            The second issue to address is whether the "Shanghai Report" was under the control of FAIT at the time of the applicant's access request. Section 4(1) of the Access Act states that a person has a right to be given access "to any record under the control of a government institution". The respondent argues that the evidence of Ms. Shuttleworth is clear that FAIT had possession of the "Shanghai Report" briefly in November 1996, but that all copies of the "Shanghai Report" were returned to AECL. According to the respondent, when the applicant's access request was filed on April 26, 1997, FAIT did not have control of the "Shanghai Report".

[13]            The applicant argues that the meaning of control within section 4(1) of the Access Act should not be limited to physical possession of the document. The applicant points out that the "Shanghai Report" was used by FAIT in its operations and therefore should be found to be in the control of FAIT. The applicant also argues that the respondent should have filed the "Shanghai Report" with National Archives pursuant to the National Archives of Canada Act, R.S.C., 1985, c. 1 (3^rd Supp.) (the "National Archives Act").

[14]            The meaning of "control" in subsection 4(1) of the Access Act has been judicially considered. The leading case to date is the decision of the Federal Court of Appeal in Canada Post Corporation v. Canada^[7]. At issue in that case was whether documents compiled by Public Works Canada ("Public Works") in relation to a contract it had with Canada Post Corporation ("Canada Post"), were "under the control of a government institution" within ss. 4(1) of the Access Act.

[15]            The Court of Appeal in Canada Post upheld the trial decision of Mr. Justice Rothstein (as he then was) by holding that the documents were under the control of Public Works. In reaching this conclusion, the Court of Appeal noted that the notion of "control" in ss.4(1) of the Access Act is left undefined and unlimited. As the majority of the Court states at page 127-8:

Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or "de jure" and "de facto" control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen's right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government.

It is, in my view, as much the duty of courts to give subsection 4(1) of the Access to Information Act a liberal and purposive construction, without reading in limiting words not found in the Act or otherwise circumventing the intention of the legislature...It is not in the power of this Court to cut down the broad meaning of the word "control" as there is nothing in the Act which indicates that the word should not be given its broad meaning. On the contrary, it was Parliament's intention to give the citizen a meaningful right of access under the Act to government information. [footnotes omitted]

[16]            The Court of Appeal went on to note that the agreement between Public Works and Canada Post allowed for Canada Post to inspect and audit the records held by Public Works. Given this agreement, the Court notes that the records at issue must be within the control of Public Works, because otherwise there would be no reason for Canada Post to give itself a right to copy and audit its own records.

[17]            The Court of Appeal in Canada Post upheld the decision of Mr. Justice Rothstein at the trial level.^[8] Mr. Justice Rothstein held that the definition of "control" should be given a broad interpretation and states the following at page 339:

I, too, cannot see in the Access to Information Act any express statement or inference that "control" in the Act is to be modified by some test as to how information is to be used by a government institution or the extent to which a government institution may dispose of it. Nor is there any indication that "control", as used in the Act, can be affected by a private agreement between a government institution and a third party. The scheme is that all information in the hands of the Government is subject to the Act except information expressly exempted.

Mr. Justice Rothstein concludes that when a government institution has possession of records, whether in a legal or corporeal sense, this is sufficient for such records to be subject to the Access Act.

[18]            Similarly, the Federal Court (Trial Division) in Ottawa Football Club v. Canada^[9] held that "record under the control" of the government must not be limited by some test as to how and on what terms the information or record came into the hands of government. The plain meaning of ss.4(1) and ss.2(1) of the Access Act is that the Act gives access, subject to many exceptions, to any record, or information in a record, which happens to be within the custody of the government regardless of the means by which that custody was obtained.

[19]            Whether or not a record is under the control of a government institution must be determined on a case by case basis, as stated in Ottawa Football Club and Canada Post (Trial Division), and not limited by a test as to how information must be used. This appears to be the first time, however, that this Court is faced with a situation in which a document was used by a department for a limited time, but the document is no longer in the physical possession of the department.

[20]            There is uncontradicted evidence before this Court, in the affidavit of Ms. Shuttleworth, that the "Shanghai Report" was provided to FAIT under strict conditions, for a limited time frame, and on the condition that it be promptly returned to AECL. Although this Court does not condone the actions of FAIT in its failure to comply with the National Archives Act, this has no bearing on the present application for judicial review which was filed pursuant to section 41 of the Access Act. The purpose of the National Archives Act is fundamentally different than the purpose of the Access Act,^[10] and an application made pursuant to the Access Act must be determined in light of the purpose and provisions of the Access Act alone.

[21]            The evidence before this Court indicates that officials from FAIT used the "Shanghai Report" for a matter of days, with the assurance to AECL that all copies of the report would be returned to AECL. There is uncontradicted evidence in the affidavit of Ms. Shuttleworth that all copies of the "Shanghai Report" were returned to AECL. There is also evidence in the affidavit of Mr. Brian Hurman, Deputy Director of the Access to Information and Privacy Protection for FAIT, that the search conducted by FAIT in relation to the applicant's request was done in accordance with the Access Act, and that only four documents were found that were related to the request. There is no evidence in the case at bar that FAIT returned the "Shanghai Report" to AECL for an ill-motivated purpose, nor that FAIT contracted out of the Access Act. Given this evidence, I am satisfied that FAIT did not have control of the "Shanghai Report" when the applicant's access request was filed at the end of April 1997.

[22]            For the foregoing reasons, the application for judicial review is dismissed.

                                                                       ORDER

THIS COURT ORDERS that:

1.         The application for judicial review is dismissed with costs.

                                                                                                                        "Edmond P. Blanchard"                   

                                                                                                                                                   Judge