Date: 20020201
Docket: T-582-01
Neutral citation: 2002 FCT 127
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and BRUCE HARTLEY
Applicants
- and -
THE INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Information Commissioner brought two motions seeking two orders: one striking portions of the affidavit of Lawrence A. Elliott sworn August 21, 2001, and one granting leave to file a further amended objection pursuant to Rule 318. I am not striking out any portions of the affidavit of Lawrence A. Elliott on the understanding that some of the affidavit is strictly legal argument and the facts set out in the affidavit will be given appropriate weight by the judges hearing any motions in which the affidavit is before them.
FACTS
[2] The applicants in the application request that they be provided with a certified copy of the "transcript of the proceedings before Mr. Alan Leadbeater, the Information Commissioner's delegate, on March 30, 2001."
[3] On June 4, 2001, the Information Commissioner filed an Amended Notice of Objection in this file. Paragraph 2 of this objection reads as follows:
Notwithstanding the aforementioned objection, the Information Commissioner has authorized the disclosure of a portion of the transcript dated March 30, 2001 (pages 1, 2, 4 line 16 to page 66 line 14, page 67 line 17 to page 75 line 4), pursuant to section 63 of the Access to Information Act (the "Act") that in his opinion, is necessary to carry out his investigations under the Act of six complaints in files 3100-13128/001 to 3100-13133/001. This information relates to jurisdictional facts with respect to the Information Commissioner's orders of confidentiality issued on March 30, 2001 pursuant to sections 34, 35, 36 and 64 of the Access to Information Act and to the Information Commissioner's power of a superior court of record referred to at section 36(1)(a) of the Act.
[4] The Information Commissioner filed objections in other files related to confidentiality orders listed above in paragraph 2.
[5] The Amended Notice of Objection filed on June 4, 2001, was filed pursuant to Rule 318(2) of the Federal Court Rules. However, the Information Commissioner did not transmit a certified copy of this material to the registry and to the applicant within 20 days as they were required to do pursuant to Rule 318(1).
[6] On August 22, 2001, the applicants served their motion materials in support of the motion returnable September 6 and 7, 2001. In the course of their written representations, the applicants specifically relied on the Amended Notice of Objection dated June 4, 2001 in support of their position that the transcripts of the proceedings before the Information Commissioner's delegate ought to be filed with the Court on a confidential basis.
[7] It is important to note the specific paragraphs of the argument in order to determine the extent of the prejudice to the applicants.
29. The Information Commissioner objected to producing any material in any application, except in the Confidentiality Order Application brought by Bruce Hartley in File T-582-01. In that application, the applicants had requested that the Information Commissioner file:
the transcript of the proceedings before Mr. Alan Leadbeater, the Information Commissioner's delegate, on March 30, 2001.
30. The Information Commissioner authorized the disclosure of a portion of the transcript and stated that that portion:
in his opinion, is necessary to carry out his investigations under the Act of six complaints in files 3100-13128/001 to 3100-13133/001. This information relates to jurisdictional facts with respect to the Information Commissioner's orders of confidentiality issued on March 30, 2001 pursuant to ss. 34, 35, 36 and 64 of the Access to Information Act and to the Information Commissioner's power of a superior court of record referred to at s. 36(1)(a) of the Act.
31. The portions of the transcript referred to in that objection consist of exchanges between the Information Commissioner's delegate and Mr. Hartley's counsel, Peter K. Doody, and submissions made by Mr. Doody.
[8] Then, in his submissions on the law, counsel for the applicants stated at paragraph 64:
64. Section 63(1)(a)(i) allows the Information Commissioner to disclose any information that, in his opinion, is necessary to carry out an investigation under the Act.
....
66. The Information Commissioner also relies upon this section in "authorizing" the filing of what he calls "jurisdictional facts" (but are in reality submissions) found in the transcript of proceedings before him at the time Mr. Hartley gave his evidence.
67. Mr. Leadbeater must have concluded that it was necessary, in order to carry out his investigations, that the Confidentiality Orders be made otherwise he would not have made the Order. Since the Confidentiality Order Applications seek Orders quashing those Orders, he must, therefore, have authority to release the transcripts.
[9] The Information Commissioner then reconsidered his position with respect to his objection in this file and on August 27, 2001 sought to file his further amended objection which removes the existing paragraph 2 and adds the following paragraphs:
2. The Information Commissioner does not authorize the disclosure of a portion of the transcript dated March 30, 2001 (pages 1, 2, 4 line 16 to page 66 line 14, page 67 line 17 to page 75 line 4), pursuant to section 63 of the Access to Information Act (the "Act") because its disclosure is not necessary to carry out his investigations under the Act of six complaints in files 3100-13128/001 to 3100-13133/001.
2.1 The applicant, Mr. Bruce Hartley, and counsel on record for the applicant, Messrs. David W. Scott and Guy J. Pratte have access on a confidential basis at the Office of the Information Commissioner, to the confidential transcripts of the proceedings before the Information Commissioner's delegate on March 30, 2001.
2.2 The Information Commissioner's investigation is conducted in private and on an ex parte basis in accordance with the Access to Information Act. The Applicant, Attorney General of Canada, is legally precluded from having access to this confidential material.
ANALYSIS:
[10] The Information Commissioner seeks to rely on Rules 54 and 75(1) which read as follows:
| 54. A person may at any time bring a motion for directions concerning the procedure to be followed under these Rules.
75. (1) Subject to subsection (2) and rule 76, the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties.
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54. Une personne peut présenter une requête à tout moment en vue d'obtenir des directives sur la procédure à suivre dans le cadre des présentes règles.
75. (1) Sous réserve du paragraphe (2) et de la règle 76, la Cour peut à tout moment, sur requête, autoriser une partie à modifier un document, aux conditions qui permettent de protéger les droits de toutes les parties.
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[11] The leading case on the general rule that an amendment should be allowed at any stage of the action is set out in Canderel Ltd. v. Canada, [1993] F.C.J. No. 777 (F.C.A.) where Justice Décary stated at page 6:
... the general rule is that an amendment should be allowed at any stage of an action ... provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.
[12] However, one of the considerations in assessing whether an amendment to a document should be granted is the extent to which the position of another party taken in its pleadings and arguments would be undermined or unalterable. See O'Keefe J. in Yeager v. Canada (Correctional Service), [2000] F.C.J. No. 537 at paragraph 10 where he stated:
Factors to consider in determining whether non-compensable prejudice would result include: the stage the proceedings are at when the amendment is sought; the extent to which the amendment delays an expeditious trial; and the extent to which the position of the other party, taken in its pleadings and arguments, would be undermined or unalterable: Scanner Industries v. Canada, [1994] 69 F.T.R. 310; affirmed [1994] 172 N.R. 313 (F.CA.).
[13] The Information Commissioner submits that he made a mistake in authorizing a portion of the transcript to be released in his June 4th amended objection and discovered he had no authority to do so. In the June 4th amended Information Commissioner's objection, he stated that he was authorized to disclose a portion of the transcript:
Pursuant to section 63 of the Access to Information Act ... that in his opinion is necessary to carry out his investigations under the Act.
[14] I understand the Information Commissioner's position that he does not have authority to release information under section 63 which is not necessary to carry out his investigation. However, he clearly stated that this information on June 4th was necessary to carry out his investigation and he is changing his mind, in my view, as a result of the submissions of counsel for the applicants on August 22nd. This amendment is not about, as stated by his counsel, the authority to release information which he does not consider necessary to carry out his investigation. The problem is that he stated on June 4th that it was necessary and now he wishes to change his mind with respect to this specific piece of information. This is not a change in mind which the law requires. In my view, there is no prejudice to the Information Commissioner if I refuse to grant the further amendment because he is still permitted to argue that section 63 does not permit him to release information which he does not consider necessary to his investigation. However, to change his mind on whether information is necessary to his investigation as a result of submissions by the opposing party, is certainly non-compensable prejudice as stated by O'Keefe J. in Yaeger, supra.
[15] Therefore the motion by the Information Commissioner to be granted leave to file a Further Amended Notice of Objection pursuant to Rule 318 of the Federal Court Rules, 1998 is dismissed with costs to the applicants.
[16] I direct that pursuant to Rule 318 the Information Commissioner file that portion of the transcript referred to in his amendments of June 4th on a confidential basis with the Court. The transcript shall be available only to the Court and to counsel for Mr. Hartley, Messrs. Scott and Doody on the basis that Messrs. Scott and Doody will not disclose it or parts thereof to anyone.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
February 1, 2002
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