Canada (Attorney General) v. Canada (Information Commissioner), docket T-1640-00

Date: 20001019

Docket: T-1640-00

T-1641-00

BETWEEN:

THE ATTORNEY GENERAL OF CANADA and BRUCE HARTLEY

Applicants

-and-

THE INFORMATION COMMISSIONER OF CANADA

Respondent

AND:

THE ATTORNEY GENERAL OF CANADA,

MERIBETH MORRIS, RANDY MYLYK and EMECHETE ONUOHA

Applicants

- and -

THE INFORMATION COMMISSIONER OF CANADA

and DAVID PUGLIESE

Respondents

     REASONS FOR ORDER

McKEOWN J.

INTRODUCTION

[1]      These reasons deal with two motions which were heard together concerning Court Files T-1640-00 and T-1641-00. I will begin by summarising the motions at issue. I will then proceed to outline the relevant facts pertaining to each case, which will provide a background for the findings that follow.

MOTIONS AND ISSUES

[2]      The Applicants seek to prohibit the Respondent from proceeding to enforce subpoenas duces tecum against the individual Applicants in both cases until Applications for Judicial Review in respect of those subpoenas are determined. The Respondent seeks to strike the Applications in both cases.

[3]      Requests were made under the Access to Information Act, R.S.C. 1985, c.A-1 (the Act) for the release of records by the Privy Council Office (PCO) and the Department of National Defence (DND), two government institutions to which the Act extends. The heads of the two departments refused to disclose in whole or in part copies of the Prime Minister's agenda and any minutes of the "M5" management meetings of the Minister of National Defence, on the grounds that the records were in the control of the Prime Minister's Office (PMO) and the Office of the Minister of National Defence, respectively. The Applicants argue that the requested documents are under the control of the PMO and the Minister of National Defence's Office and that these two offices are not "government institutions" pursuant to section 2 of the Act. They argue that the documents are not subject to the Act and cannot be accessed by the Information Commissioner (the "Commissioner").

[4]      The Applicants' motion for interim relief raises five key issues:

(a)      Is it reasonably arguable that the documents which are the subject of the access requests, and are now being sought by the Commissioner, are not under the control of the relevant "government institutions", the PCO and the DND?;

(b)      Is it reasonably arguable that the individual Applicants have no relevant evidence to give with respect to the issue being investigated by the Commissioner -- that issue being whether or not there was a valid refusal by the government institutions, the PCO and DND, to provide the records requested?;

(c)      Will irreparable harm be suffered by the Applicants if interim relief is not granted before the Judicial Review Application is determined? Specifically, would irreparable harm inure to the Applicants should they be required to testify before and produce the documents to the Commissioner prior to the determination of their Application for Judicial Review?;

(d)      Does the balance of convenience favour the granting of interim relief?; and

(e)      Should this Court grant leave to allow the Commissioner to be named as the Respondent?;

[5]      The Respondents' motions to strike raise three main issues:

(a)      Should this Court strike out paragraph 2(a) of the Applicants' Notices of Application because the Applications are premature or barred by the existence of an adequate alternative procedure?;

(b)      Should this Court strike out paragraphs 2(b), (c) and (d) of the Applicants' Notices of Application because the relief sought is frivolous and vexatious and is bereft of any chance of success?; and

(c)      Should this Court strike out the remainder of the Applicants' Notices of Application if the primary relief sought therein is struck out?

FACTS: COURT FILE T-1640-00

[6]      On June 28, 1999 the PCO received six requests under the Act. Pursuant to the Act, those requests sought release of the Prime Minister's daily agenda book for each of the years 1994 to 1998 (or the corresponding fiscal years) and for the fiscal year 1999 to the date of the request.

[7]      The PCO advised the requester that with respect to five of his requests, there were no such records under its control. With respect to the sixth request, the PCO neither confirmed nor denied the existence of any records relating to the subject matter of the request, but stated that, should such records exist, they would be exempt in their entirety as being personal information, pursuant to s. 19(1) of the Act.

[8]      The requester then filed a complaint with the Commissioner, arguing that he or she had not been given access to the records requested. Pursuant to subsections 30(1)(a) and (f) of the Act, the Commissioner was compelled to investigate. The Commissioner gave notice and provided summaries of these complaints to the PCO.

[9]      The Access to Information Coordinator for the PCO sent a letter to the Commissioner's investigator on October 5, 1999 explaining the PCO's actions. She heard nothing further until August 2, 2000.     

[10]      On August 2, 2000, the Deputy Commissioner wrote to the Prime Minister's Chief of Staff, indicating his concern that, "[t]he Prime Minister was of the view that his office is not covered by the Access to Information Act."

[11]      A subpoena dated August 11, 2000 was issued to Bruce Hartley, the Executive Assistant to the Prime Minister. This subpoena required him to bring with him and produce at the hearing the following documents and things:

All records under the control of the Prime Minister of Canada containing information with respect to and including any copy of:

the Prime Minister's agendas in any format, whether electronic, printed or other format, from January 1, 1994 to June 25, 1999.

[12]      The requesters sought the Prime Minister's agendas. They exist in the PMO as archived in electronic format. They are created and maintained under the supervision of the Applicant, Bruce Hartley. They contain information as to the full range of the Prime Minister's activities including cabinet meetings, caucus meetings, foreign and diplomatic contacts, Liberal Party activities, and personal and family appointments. The agenda for any particular day may include some or all of these matters and may or may not list all of the Prime Minister's activities that day.

[13]      The Prime Minister's agendas are created on a single computer located in Mr. Hartley's office. Only Mr. Hartley and his assistant can change the electronic agenda program on that computer. Certain staff in the PMO have read-only access to the agendas and nobody outside the PMO has such access. The agendas are archived from time to time, but those files are accessible only by Mr. Hartley and his assistant.

[14]      The agendas serve as a means by which the Prime Minister and Mr. Hartley communicate for the purpose of managing the Prime Minister's time. The agenda is a plan for how the Prime Minister's day may unfold. According to Mr. Hartley, any changes to the Prime Minister's schedule that are experienced throughout any particular day may or may not be recorded in the agenda.

[15]      Copies of the Prime Minister's agenda are shared with senior officials employed within the PMO. A copy of the next day's agenda, which may be edited to some degree, is faxed to selected officials. In addition, a copy of the agenda showing only the locations to be visited by the Prime Minister is made available to the Royal Canadian Mounted Police.

[16]      Until approximately twelve months ago, it was also Mr. Hartley's practice to fax a copy of the next day's agenda to the Clerk of the Privy Council. That copy was provided for the sole information of the Clerk and his or her executive assistant. According to Mr. Hartley, the understanding was that the agenda was to have been discarded after it was used that day. As such, the only archived copies of the agendas are found in the PMO itself. These copies of the agendas include amendments which incorporate any schedule changes that arise during a particular day. Such amendments were never provided to the Clerk of the Privy Council.

[17]      The Applicant Mr. Hartley is the Executive Assistant to the Prime Minister of Canada. He was appointed by the Prime Minister and holds his office at the Prime Minister's pleasure. He is considered to be a member of the Prime Minister's "exempt staff" and therefore not a "public servant". He is not an employee or officer of the PCO. No official of the Privy Council can give Mr. Hartley directions and he has no authority to issue orders to any such official.

[18]      Mr. Hartley's responsibilities are to provide assistance and advice to the Prime Minister on matters of operations, policy and communications. He assists the Prime Minister in managing his schedule in order to assure the effective use of his time. He also manages the flow of documents received from the PCO. No one in the PCO, up to and including the Clerk of the Privy Council, can require Mr. Hartley to provide the agendas to them. Mr. Hartley has no knowledge of records under the control of the PCO.

FACTS REGARDING COURT FILE T-1641-00

[19]      On November 12, 1999, DND received an access to information request for minutes or documents produced from the M5 management meetings for 1999. "M5" is the term used to describe the informal meetings among the Minister of National Defence, his senior Ministerial (exempt) staff, the Deputy Minister of National Defence, and the Chief of the Defence Staff.

[20]      On February 15, 2000, the Acting Director of Access to Information and Privacy at DND advised the requester, Mr. Pugliese, that a search had failed to uncover any documents fitting the description in his request.

[21]      On February 26, 2000, Mr. Pugliese filed a complaint with the Commissioner, who was compelled to investigate pursuant to subsections 30(1)(a) and (f) of the Act. The Commissioner notified DND and provided DND with summaries of the complaint.

[22]      On June 29, 2000 the Deputy Commissioner met with and received evidence from the Deputy Minister of DND and the three individual Applicants (Ms. Morris, Mr. Mylyk and Mr. Onuoha). The Deputy Commissioner also met with and received evidence from the Chief of the Defence Staff on July 5, 2000. At these meetings, the Deputy Minister, the Chief of the Defence Staff and the three individual Applicants agreed to search for documents under the control of DND that corresponded to the request relating to the M5 meetings.

[23]      On July 13, 2000 the Assistant Deputy Minister, Finance and Corporate Services, DND provided the Commissioner with material provided to him including copies of the agendas of the Deputy Minister of DND and the Chief of Defence Staff. However, the Assistant Deputy Minister refused to provide copies of the notebooks of the three Applicants stating that: "these notes are not filed or circulated, nor are they under the control of the Department of National Defence and the Canadian Forces."

[24]      On August 3, 2000 the Commissioner wrote to the Minister of National Defence, stating:

... all records which your officials allege to be held exclusively within the confines of your departmental office, have been withheld from us. No lawful excuse for this refusal to provide requested records to the Information Commissioner, for investigative purposes, has been offered.

[25]      Subpoenas dated August 11, 2000 were issued to Emechete Onuoha, the Executive Assistant to the Minister of National Defence; Meribeth Morris, the Director of Operations to the Minister of National Defence; and Randy Mylyk, the Director of Communications to the Minister of National Defence.

[26]      The subpoenas issued to the three Ministerial (exempt) staff of the Minister of National Defence ordered each of those persons to produce:

All records generated, used or obtained during your duties, whether in your possession or not, containing information with respect to any and all DND M5 management meetings held from January 1, 1999, to October 29, 1999, and including any notes, notebooks, minutes, agendas, e-mails, files whether electronic, printed, handwritten or in any other format.

[27]      Each of the three individual Applicants is considered to be a member of the Minister's "exempt staff" and not a "public servant", a distinction well known to all who work in senior positions for the Government of Canada, one of the Ministers of the Crown, or in or for Parliament. None of the three individual Applicants is an employee or an officer of DND. All three were appointed by the Minister and hold office at the Minister's pleasure. No official of the DND can give any of the three individual Applicants direction, nor can any of the three Applicants issue orders to any such official.

[28]      Ms. Morris is the Director of Operations to the Minister of National Defence and she also gives political advice and assistance to the Minister. Her work is carried out under his exclusive direction and control. She oversees the preparation and maintenance of the Minister's schedule, including travel plans; manages and approves correspondence; takes responsibility for grievances and has managerial responsibility for operations in the Minister's Parliament Hill office and the constituency office of York Centre.

[29]      Mr. Mylyk is the Director of Communications for the Minister of National Defence and is employed to give the Minister political advice and assistance in respect of communication strategies and media relations. His work is carried out under the Minister's exclusive direction and control.

[30]      Mr. Onuoha is Executive Assistant to the Minister of National Defence. He gives political assistance and advice to the Minister about strategic policy issues. He also deals with Cabinet matters, oversees administrative matters in the Minister's office in the area of funding, management and personnel, and is the Minister's liaison with the PMO and the offices of other ministers of the Crown.

[31]      It will also be helpful to describe the documents in question with respect to the request made to DND for "copies of minutes or documents produced from the M5 management meetings for 1999". The three individual Applicants testified that they each kept a notebook in which they recorded daily events and contacts made during his or her day to day work-related activities, including items discussed with the Minister. These notebooks act as memory aids and are treated as transitory, as they are no longer consulted once any follow-up tasks have been completed.

[32]      The notebooks also contain information relating to the three Applicants' duties in support of the Minister, such as: internal staff meetings, personal thoughts, notes made during seminars or other events and meetings, and matters that the Minister has briefed each of them on. The notebooks also contain information about the Minister's various different roles and duties and each of the individual Applicants' involvement respecting these roles and duties. They include:

(a)      notes of the Minister's dealings with his responsibilities in respect of DND;

(b)      notes of the Minister's dealings with other ministers in his responsibilities as a member of the Cabinet;

(c)      notes about Liberal Party policy matters;

(d)      notes about the Minister's role as Vice Chair of the Economic Union Committee of Cabinet;

(e)      notes of discussions with counterparts in other ministers' offices, including the PMO;

(f)      notes of constituency affairs; and

(g)      personal information such as personal contacts and family-related information.

[33]      The notebooks are not part of the Records Management System of the Minister's office, nor have they been included in the Records Management System of DND. They are not shared with anyone in the Minister's office.

[34]      No official of DND, up to and including the Deputy Minister or the Chief of Defence Staff, would have authority to compel any of the individual Applicants to produce the notebooks. The individual Applicants have no knowledge of any records under the control of DND which are "minutes or documents produced from the M5 management meetings for 1999".

[35]      On September 13, 2000 the Deputy Clerk of the PCO issued a note to the Deputy Heads of Government which was entitled "Records held within Minister's Offices". In the note, the Deputy Clerk reviewed the position that the government has taken with respect to the accessibility of records held in a Minister's Office and informed the Deputy Heads of the recent events in this investigation. He concluded:

In light of these recent developments and more significantly in consideration of the important principle at issue, I would ask that records held exclusively in Ministers' offices not be shown or provided to the Information Commissioner or his officials keeping in mind the position of the government and subject to any other legal duties that may arise. I would also appreciate it if you would bring to my immediate attention any formal or informal requests you may become aware of by the Office of the Information Commissioner or the Privacy Commissioner to view or copy such records.

---

ANALYSIS

[36]      Before I proceed to discuss the test for granting interim relief, it will be helpful if I set out the Commissioner's view of this matter. The Commissioner takes the view that he is in the process of conducting an investigation into complaints made under paragraphs 30(1)(a) and (f) of the Access to Information Act (the Act). He had a duty to start an investigation as a result of these complaints. In his view, the issue of whether or not the documents which are the subject of the access request are in the control of "government institutions" is precisely the subject matter of his investigation. He is looking at, or seeks to look at, all the evidence related to this matter. The Commissioner's position is that he has not yet made up his mind concerning whether or not the said documents are under the control of government institutions. However, he argues that he requires access to these records, and information from persons having knowledge of the records, in order to make his decision.

[37]      The Commissioner takes the view that the declaratory relief sought is improper and premature since the Commissioner has not yet completed his investigation. In his view, the Applicants are in effect asking this Court to prevent him from inquiring into the matter in order to determine a threshold issue which is a question of mixed fact and law. The Act gives the Commissioner the same powers as are held by superior courts of record in terms of summoning and enforcing the attendance of witnesses and the production of evidence. In addition, he may receive evidence regardless of whether or not it is admissible in a court of law.

[38]      Both the Applicants and the Commissioner agree that the PCO and DND are "government institutions" under the Act. However, the Commissioner does not appear to agree with the Applicants that the PMO and the office of the Minister of National Defence are not "government institutions" under the Act.

[39]      The Commissioner relies on the purpose of the Act as set out in section 2(1):

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

[40]      I now turn to the test for granting of interim relief. The tripartite test is set out in R.J.R. Macdonald v. Canada (A.G.), [1994] 1 S.C.R. 311 at 334. The Court states that the party bringing the motion must show that:

(a)      there is a serious question to be tried;

(b)      the Applicants would suffer irreparable harm if interim relief were refused; and

(c)      the balance of convenience favours the granting of a stay.

[41]      At 335 of R.J.R. Macdonald, supra, the Court cites the decision in American Cyanimid Co. v. Ethicon Ltd., [1975] A.C. 396. In that case, Lord Diplock enunciated the first part of the test by stating that the Applicant must demonstrate that:

The claim is not frivolous or vexatious, in other words, that there is a serious question to be tried.

[42]      The Court went on to state at 337-338:

What then are the indicators of a "serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. ...

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

[43]      In my view, there are serious issues to be tried. First, are the documents in control of a government institution - that is, are ministers' offices "government institutions" within the meaning of section 2 of the Act? Second, do the individual Applicants in both cases have relevant evidence to give with regard to the subpoenas issued to them by the Commissioner?

[44]      It is not frivolous or vexatious for the Applicants to allege that ministers' offices are not "government institutions" within the meaning of the Act. There are arguments to be made that government departments have separate functions from ministers' offices. Neither the office of the Minister of National Defence or the PMO are listed in Schedule I of the Act as being government institutions. Subsections 21(1) and 21(2)(b) of the Act appear to differentiate between a minister's office and a government institution. There is other legislation, such as the National Archives of Canada Act, R.S.C. 1985, c.1 and the Public Service Employment Act, R.S.C. 1985, c.P-33, which seems to distinguish between government departments and ministers' offices.

[45]      There are cases which tend to support this distinction and set out tests for determining whether a document is controlled by a government institution or public bodies such as: Re Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) (C.A.) 611 at 618-619; British Columbia (Ministry of Small Business, Tourism and Culture) v. British Columbia (Information and Privacy Commission), [2000] B.C.J. No. 1494 (B.C.S.C.) (Q.L.) at para. 25; Greater Vancouver Mental Health Service Society v. British Columbia (Information and Privacy Commissioner), [1999] B.C.J. No. 198 (B.C.S.C.) (Q.L.) at para. 48. Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.) is also relevant in this matter.

[46]      On the other hand, there is another line of cases which tends to support the Respondent's position. See: Re Singh, [1989] 1 F.C. 430 (C.A). at 436-439; Canada Post v. Canada (Public Works) (1993), 68 F.T.R. 235 (T.D.) at para. 7; Ontario (Minister of Health) v. Big Canoe, [1995] O.J. No. 1277 (C.A.) (Q.L.) at paras. 2-3; Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186 (S.C.) at para. 9; and Montminy v. Québec (Commission d'accès à l'information), [1985] A.Q. no. 44 (S.C.) (Q.L.), aff'd [1986] A.Q. no. 861 (C.A.) (Q.L.) at paras. 11-12. These cases suggest that the Commissioner has the duty to determine threshold issues of mixed fact and law, including whether or not the requested records are "records under the control of a government institution" and whether or not they fall within the scope of section 2 of the Act.

[47]      It is interesting to note how the position of the Commissioner has changed over time since the passing of the Act in 1982. When the Act was relatively new, the Commissioner recognized that the offices of Ministers of the Crown were not part of the government department or institution for which the Minister was responsible.

[48]      In the Annual Report of the Commissioner in 1988-1989, the Commissioner wrote at 58:

The House of Commons and ministers' offices are not subject to the Access to Information Act.

[49]      In his1992 Annual Report, under the heading "The sanctity of minister[']s offices", the Commissioner wrote at 65:

In three instances during the reporting year, the Department of Justice refused to allow the commissioner to review records which he considers relevant to investigations. The reason given was that the records were in the minister's departmental office, not under the department's own control and hence, out of bounds. The department argues that the minister is not part of the department, that the department consists of the deputy minister and all those below him on the organization chart. It is from that perspective that the Justice department concludes that the records under the control of the minster's office are not under the control of the department. Since only the department is covered by the access law, goes the argument, neither requestors nor the commissioner have any right to see records held in the office of the Minister of Justice.

In the commissioner's view, since Parliament has made ministers responsible for the administration of the access law by virtue of being heads of departments, the Minister of the Department of Justice, as its head, cannot be considered immune from investigation by the commissioner.

The commissioner agrees that some records held in minister[']s offices are not accessible to requesters under the access Act.

[50]      In 1993-1994, the view of the Commissioner had expanded further. At page 68 of his annual report he stated:

To date the view persists among Justice officials that the Commissioner will only be allowed as a courtesy to investigate records held in the minister's office. They hold firm the view that the access law does not apply to records held in ministers' offices.

That Justice department view flies squarely in the face of the Act's plain words designating each minister head of his or her department for the purpose of the access law.

[51]      In the 1994-1995 Annual Report, the Commissioner wrote at 72:

Legal Issue

Is the minister's office part of his department (and, hence, covered by the access law) or separate therefrom (and not covered by the law)? The issue has been canvassed in detail in the two previous annual reports. Suffice to say that the commissioner concluded that a minister's office forms part of the department and records held therein are subject to the access law.

[52]      In my view, there is an arguable case that the declaration sought could be granted since it is arguable that neither the PMO nor the office of the Minister of National Defence are government institutions within the meaning of that phrase in the Act, and that the records sought by the requesters are not under the control of the PCO or DND respectively. There is a serious issue to be tried.

[53]      In addition, there is the related issue of whether or not the individual Applicants have relevant evidence to give in answer to the subpoenas issued by the Commissioner. The records are not in possession of either the PCO nor DND. There are sworn affidavits by the individual Applicants that they have no knowledge of any such documents in the PCO nor DND. Mr. Hartley has knowledge of the documents sought by the Commissioner and has stated that they are strictly within his possession and only accessible by certain members of the PMO. He did supply these documents to the Privy Council Clerk up to a period of approximately twelve months ago, but these copies were to be destroyed on a daily basis. It is important to note that the information request was made after Mr. Hartley stopped providing copies to the Clerk of the Privy Council. According to the affiant representing the PCO, no such documents were found at the PCO, except for four pages of the Prime Minister's agenda.

[54]      Similarly, the three Applicants who were part of the exempt staff of the Minister of National Defence had no knowledge of any documents in the hands of the DND. They admitted that they had made references to the M5 meetings in their own personal notebooks, but that those notebooks relate to the office of the Minister of National Defence. According to them, these notebooks were not part of DND records. Accordingly, it is arguable that they have no relevant evidence to give concerning the Commissioner's inquiry.

[55]      If the Applicants' argument is correct in asserting that they have no relevant evidence to give, it is well-established that the summonses should then be quashed. In Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R., Binnie J. states at 36:

While courts should be slow to interfere with a party's effort to build its case, they should set aside summonses where, as here, the evidence sought to be elicited has no relevance to a live issue in the Judicial Review Applications ...

In demonstrating that they have an arguable case, the Applicants have established that there is a serious issue to be tried.

[56]      I must now examine whether the Applicants would suffer irreparable harm if the subpoenas are not stayed until such time as the Application for Judicial Review is determined. With respect to irreparable harm, the Supreme Court of Canada stated in R.J.R.-Macdonald, supra, at 341 as follows:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

[57]      In Bisaillon v. Canada, [1999] F.C.J. No. 898 (F.C.A.), Létourneau J.A. refers to the concept of irreparable harm at para. 32:

According to RJR -MacDonald, supra, the concept of irreparable harm refers more to the nature of the harm caused than to its extent and involves either harm which cannot be quantified in monetary terms or harm for which there is no remedy. Beetz J. made similar comments in Metropolitan Stores, supra, when he said that irreparable harm is harm for which damages cannot compensate, or can only compensate with difficulty.

[58]      In his decision in Bisaillon, supra, Létourneau J.A. went on to find at para. 33 that the appeal from the "order by the motions judge will become moot or futile if Revenue Canada obtains the material requested before the appeal is decided on its merits". Cory J. in 143471 Canada Inc. v. Québec (A.G.), [1994] 2 S.C.R. 39 at 379 reaches a similar conclusion about handing documents over before the matter is concluded. He stated at 379:

This information too is sensitive and something that the business operator would prefer to keep private. It is true that under the Act respecting the Ministère du Revenue the government employees are forbidden to disclose information obtained from the documents. However, the mere fact that the documents have been seized and must be reviewed by the government officers will be a cause for concern for the proprietor of the business.

[59]      In the case before me, it is arguable that the Commissioner might be required to disclose certain of the information obtained by reason of section 63(1) of the Act. It is a very broad section. While there are several other sections which require the Commissioner to keep documents confidential, it is arguable the he may have the power to release certain confidential documents in order to further his investigation. Notwithstanding the confidentiality provisions placed on the Commissioner's office, there is irreparable harm to the Applicants if the material in question is released in whole or in part prior to the determination of the question on judicial review.

[60]      The balance of convenience favours the Applicants, as the nature of the harm that would inure to them should the interim relief not be granted far outweighs any inconvenience that the Respondents may suffer from the delay of the continuation of the Commissioner's investigation. However, in order to reduce the time of the delay, and in order that the Applications for Judicial Review be heard on an expedited basis, the files will be case managed. I also note that the Deputy Clerk of the Privy Council has indicated that all Deputy Heads of Government should refuse to disclose any documents similar to those in question before me. Thus, the Applications for Judicial Review of these matters should be expedited.

[61]      I will now review the motions to strike out the Applications for Judicial Review. The Federal Court of Appeal has stated that it is generally improper to file motions to strike in judicial review proceedings. The proper manner to test the merit of a Judicial Review Application is to argue and appear at the hearing of the Application itself. This was first enunciated in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at 596-600. The Court of Appeal reiterated its position in Moldeveanu v. Canada (M.C.I.), [1999] F.C.J. No. 55 (C.A.) (Q.L.) at para. 13. I note that the David Bull case took place before the new rules, which do allow Judicial Review Applications to be struck out, were issued. However, the reasoning in that case still applies. I also note that the Moldeveanu case did not involve, technically speaking, a motion to strike the Judicial Review Application. In my view, this proceeding is not so clearly improper as to be bereft of any possibility for success. I have set out my views as to why the Applicants have established that there is a serious issue and I do not intend to repeat them. It would be improper for me to indicate my views on whether this Application will succeed in light of the fact that the matter will be decided by the judge hearing the Application for Judicial Review. Furthermore, the question of prematurity should be dealt with by the judge hearing the Application for Judicial Review, rather than on a motion to strike. See: Zündel v. Canada (Human Rights Commissioner), [1999] F.C.J. No. 107 (T.D.) (Q.L.) at para. 21.

[62]      The Commissioner is understandably concerned about the delay in conducting his investigation. He has undertaken to keep the documents confidential but, as stated earlier, section 63(1) may preclude this. It is important to remember that these types of documents held in control of the PMO and in ministers' offices have been kept confidential for 133 years, except for voluntary surrender. Also, specific laws have been made to require the making public of some of these documents twenty years after the documents were created. It may be that the Commissioner will succeed at the time of judicial review but, as I stated earlier, this proceeding is not so without merit on its face that I can dismiss the Applications without more thorough review.

[63]      The Commissioner has alleged that there are adequate alternative remedies available here. In my view, it is arguable that the Applicants have no alternative remedy under the Act. As such, this issue can also be determined by the judge hearing the Application for Judicial Review. I agree with Richard J's statement in Lazar v. Canada (Attorney General), [1998] F.C.J. No. 867 (T.D.) (Q.L.) at para. 6:

At this preliminary stage of the proceeding, I am satisfied that there is a debatable issue raised here by the applicant where an initial application for disability benefits was granted, benefits were paid and such benefits were later found not to be payable resulting in a demand for repayment of the benefits. It should be left to the judge hearing the application for judicial review to determine the availability and the adequacy of the appeal procedures in the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended.

[64]      The Applicants requested that the Court grant leave to allow the Commissioner to be named as the Respondent. Normally the Commissioner would not be named as the Respondent. Pursuant to Rule 304(1)(b)(i), the Commissioner would always be served with Notices of Application in respect of which an Application is brought. Rule 303(1)(a) of the Federal Court Rules contemplates that an Applicant should name as Respondents all persons directly affected by the Order sought, except the Tribunal in respect of which the Application is brought. Rule 303(2) states that the Attorney General of Canada should be named as Respondent in situations where no other persons can be named as such.

[65]      Clearly this leads to a ridiculous result in the case before me, since the Attorney General of Canada would be both the Applicant and the Respondent. However, under Rule 303(3):

where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent ... the Court may substitute another person or body, including the tribunal in respect of which the application is made, as the Respondent in place of the Attorney General of Canada.

Since the requester in Court File T-1640-00 is not desirous of coming forward, it seems to me in the unusual circumstances of these Applications that it is appropriate for the Commissioner to be the Respondent in both files and I grant leave to the Applicants to make the Information Commissioner of Canada a Respondent in both Applications.

For the above reasons:

1.      The Applicants' motions for interim relief are granted. The Respondent, the Information Commissioner of Canada, is prohibited from requiring the Applicants Mr. Bruce Hartley, Ms. Meribeth Morris, Mr. Randy Mylyk and Mr. Emechete Onuoha to give evidence or produce documents pursuant to the subpoena duces tecum issued on behalf of the Information Commissioner on August 11, 2000 until final determination of the Applicants' Applications for Judicial Review.

2.      The Respondent's motions to strike out the Applications are dismissed.

3.      The Applicants' motions seeking an Order authorizing the Information Commissioner to be the Respondent in the case of Court File T-1640-00 and T-1641-00 are allowed.

4.      The Applications for Judicial Review shall be expedited and specially managed. The Applicants shall file a jointly agreed upon schedule within 10 days of this Order or, failing agreement, their proposed schedule within that time. The Respondents shall file their proposed schedule 7 days after being served with the Applicants' proposed schedule. The parties shall not set out a hearing date but shall indicate the number of hours or days required for the hearing of the Applications for Judicial Review and may indicate proposed hearing dates.

     "W. P. McKeown"

     JUDGE

OTTAWA, ONTARIO

October 19, 2000