Date:
20130711
Docket:
T-1768-11
Citation:
2013 FC 780
Ottawa, Ontario,
July 11, 2013
PRESENT:
The Honourable Madam Justice Strickland
BETWEEN:
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PORTER AIRLINES INC.
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
AND THE INFORMATION
COMMISSIONER OF CANADA
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
application is brought pursuant to subsection 44(1) of the Access to Information Act RSC 1985, c A-1 (the Act) and seeks review of the decision of Transport
Canada dated October 18, 2011, to disclose information requested
under the Act which relates to the Applicant and its operations. This application
concerns the process prescribed by the Act for addressing requests for
information concerning third parties and, in the alternative, whether the
information is exempt from disclosure pursuant to subsections 20(1)(b),(c) or
(d) of the Act.
Background
[2]
The
Applicant, Porter Airlines, is an air transport business launched in 2006. It
provides airline services in Ontario, Quebec, the Atlantic Provinces and to
certain locations in the United States.
[3]
As
a holder of an Air Operator Certificate and Approved Maintenance Organization Certificate
issued pursuant to the Canadian Aviation Regulations, SOR/96-433
(Regulations), the Applicant is required to implement a safety management
system. Between May 25, 2010 and June 2, 2010, Transport Canada (TC)
conducted an assessment of the Applicant’s safety management system. TC then generated
a document titled “Assessment Report Porter Airlines Inc.” reporting on its
findings (the Assessment Report).
[4]
By
letter dated September 28, 2010, TC informed the Applicant that it had received
a request, pursuant to the Act, seeking information concerning the Applicant,
specifically, concerning the “Safety Management System (SMS) Audit Report of
Porter Airlines 2010”. The letter stated that TC was required to provide notice
to the Applicant, as a third party, prior to releasing information that might be
exempted from disclosure pursuant to subsection 20(1) of the Act. The Applicant
was also advised that it had twenty days within which it could submit representations
to TC as to why the information, in whole or in part, should not be disclosed.
TC attached copies of sections 19, 20, 25, 27 and 28 of the Act and a copy of
the Assessment Report (the Notice).
[5]
The
Applicant provided its representations in response to the Notice on October 15,
2010, arguing that the Assessment Report was wholly exempt from disclosure under
section 20 of the Act and, given the nature of the document, it was not
reasonably severable pursuant to section 25 of the Act. Representatives of TC met
with the Applicant on December 14, 2010. At that meeting or thereafter, TC
provided a severed copy of the Assessment Report to the Applicant which
redacted those portions of the document that TC deemed exempt from disclosure
pursuant to section 20 of the Act. TC invited the Applicant to file further submissions
concerning the intended disclosure. By letter dated January 17, 2010, the
Applicant responded by providing a copy of the severed report containing
further redactions proposed by the Applicant as in keeping with its October 15,
2010 submissions.
[6]
By
letter dated May 13, 2011, TC advised the Applicant that the Assessment Report
was partially exempt pursuant to subsections 20(1)(b) and (c) of the Act and would
therefore be partially released to the requestor. TC also advised that, pursuant
to section 44 of the Act, the Applicant had the right to apply for judicial
review of that decision. Attached to the letter were copies of section 44
of the Act and a severed Assessment Report (the First Decision).
[7]
On
June 3, 2011, the Applicant filed a Notice of Application seeking judicial
review of the First Decision (the First Application).
[8]
By
letter of August 26, 2011, TC informed the Applicant that, further to the First
Application, TC had re-examined the requested information and concluded that
further disclosure would be required. TC informed the Applicant that if it did
not agree with this decision, then it could seek judicial review pursuant to
section 44 of the Act. TC attached a copy of section 44 and a revised severed copy
of the Assessment Report which it intended to disclose (the Second Decision).
[9]
On
September 14, 2011, the Applicant wrote to TC stating that, in its view, it was
not open to TC to disclose any information while the First Application was
pending. Further, that case law indicted that a federal department could not
sit in appeal of its own decision and could not, of its own initiative, reverse
itself and start the disclosure process over. This rendered the Second
Decision a nullity and the Applicant accordingly requested that it be withdrawn.
By letter dated September 16, 2011, TC confirmed that it had withdrawn the
Second Decision. The Applicant discontinued its First Application on September
21, 2011.
[10]
On
that same day, counsel for TC sent a letter to counsel for the Applicant
acknowledging that the Second Decision had been withdrawn and clarifying TC’s position,
being that only the information identified as exempt in the revised and severed
Assessment Report as attached to the Second Decision was properly exempted
under subsection 20(1) of the Act. The letter also stated that should the
Applicant discontinue the First Application, then TC would have to issue a
further section 28 notice in keeping with its position and its obligations
under the Act, and that a discontinuance could not serve to thwart TC’s legal
obligations in that regard.
[11]
By
letter dated October 18, 2011, TC informed the Applicant that it had decided
that the records requested were partially exempt pursuant to subsection
20(1)(b) of the Act and advised the Applicant of its section 44 right to seek
judicial review of that decision. TC attached a copy of section 44 and a copy
of the severed Assessment Report that it intended to disclose (the Third
Decision). The disputed information is, in essence, the information that was
severed from the First Decision, but was not severed from the Third Decision. That
information will be hereafter referred to as the “Disputed Information”, the
term adopted by the parties.
[12]
On
October 31, 2011, the Applicant issued a Notice of Application seeking judicial
review of the Third Decision which is the decision at issue in this proceeding.
[13]
On
September 14, 2012, Madam Prothonary Aronovitch issued a Confidentiality Order
pursuant to Rules 151 and 152 of the Federal Courts Rules, SOR/98-106 and
subsection 47(1) of the Act. That order identifies confidential information
contained in the records filed by the parties and specifies how that
information is to be dealt with up to the hearing of this application. This
included the filing of confidential records, as well as public records where
appropriate.
[14]
The
Information Commissioner of Canada’s (ICC) first involvement in this matter
arose as a result of receiving a complaint filed by the requestor on February
18, 2011. The complaint concerned the delay experienced by the requestor in obtaining
the requested information.
[15]
On
February 25, 2011, the ICC notified TC of its intention to commence an
investigation pursuant to section 32 of the Act. The ICC sought
representations from TC which were received on August 8, 2011. The ICC generated
a report dated September 23, 2011 and provided the requestor with a copy of its
report.
[16]
The
ICC found that the complaint was well-founded. TC had failed to abide by the
timelines in the Act and acted contrary to its subsection 4(2.1) statutory
obligations when it delayed responding to the request and when it failed to
keep the requestor informed of the steps being taken to process its request. ICC
also found that subsection 28(1)(b) of the Act required TC to have made and
communicated a decision on disclosure within thirty days from providing the Applicant
with the third party Notice, being by October 28, 2010. Instead, TC continued
negotiating with the Applicant, receiving further representations on January
17, 2011, after which the matter lay dormant until May 12, 2011. The ICC concluded
that TC’s failure to abide by the timelines set out in the Act unjustifiably
delayed the processing of the request and that its failure to make a decision
concerning disclosure within the prescribed time contravened the Act.
[17]
The
ICC was, by its motion, added as a party to this proceeding on January 4,
2012.
Legislative Framework
[18]
The
provisions of the Act which are relevant to this application for judicial
review are set out in Annex A of this decision.
Issues
[19]
The
Applicant and the Respondent agree on the issues raised in this application.
The ICC submits that this application also raises the issue of the effects of
TC’s decisions on the requestor’s right to be granted access to records under TC’s
control.
[20]
I
would reframe the issues as follows:
i.
What
is the applicable standard of review?
ii.
Is
the Third Decision void and of no effect?
iii.
In
the alternative, is the Disputed Information exempt from disclosure pursuant to
subsection 20(1) of the Act?
Standard of Review
[21]
Where
previous jurisprudence has satisfactorily determined the appropriate standard
of review applicable to a particular issue, that standard may be adopted by a
subsequent reviewing court (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 [Dunsmuir] at paras 57 and 62).
[22]
In
this case, prior jurisprudence has established that the standard of review for
applications brought pursuant to section 44 of the Act is correctness (Merck
Frosst Canada Ltd v Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 [Merck
Frosst] at para 53 ; Wyeth-Ayerst Canada Inc v Canada (Attorney General),
[2003] FCJ No 916 (QL) (CA), at paras 8-15). Under a correctness review, the
Court will show no deference to the decision-maker. Rather, it will undertake
its own analysis and if it disagrees with the decision-maker’s analysis, it can
substitute its own view (Dunsmuir, above at para 50).
Is the Third Decision
void and of no effect?
Applicant’s
Submissions
[23]
The
Applicant submits that the Third Decision is void and of no effect because the Act
does not permit TC to make multiple access decisions regarding a single request
for information. In Matol Botanical International Inc v Canada
(Minister of National Health and Welfare), [1994] FCJ No 860 (QL) [Matol
Botanical] at paras 36 and 41- 42, the Court confirmed that an institution cannot
sit in appeal of its own decision and found that “[o]nly one decision may be
made with respect to an information request, and once it is made the
institution in question does not have the discretion to get around it.”
[24]
Matol
Botanical,
above, was followed in AstraZeneca Canada Inc v Health Canada, 2005 FC 1451 at para 66, [2005] FCJ No 792 at para 11 (QL), aff’d [2006]
FCJ No 1076 (QL) (FCA) [AstraZeneca], where this Court held:
[…] the Minister cannot initiate another disclosure
process after the Minister has made the decision not to disclose some of the
information requested.
[…]
Therefore the Minister cannot, on its own initiative
reverse itself and start the disclosure process anew with the necessary notices,
representations and other procedural steps.
[25]
The
Applicant states that when the Second Decision was withdrawn and the First
Application discontinued, the Applicant accepted the First Decision. It was
not open to TC to revisit the request for information or to issue the Third
Decision.
Respondent’s
Submissions
[26]
The
Respondent submits that the Third Decision was valid. Further, that declaring
the Third Decision to be void and of no effect is not appropriate relief
in the context of section 44 of the Act. A section 44 review is not a judicial
review of a minister’s decision pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. Rather, it is a separate and distinct process
to determine if the institutional head had correctly applied the section 20
exemptions (Merck Frosst, above, at para 92).
[27]
While
appearing before me, the Respondent argued that if the Applicant sought to
declare the Third Decision void and of no effect, then it should have commenced
its application pursuant to section 18.1 of the Federal Courts Act.
[28]
According
to the Respondent, regardless of the procedural history of this matter, TC is
entitled to change its mind about what portions of the requested information
are exempt under section 20 (Wells v Canada (Minister of Transport)
(1995), 96 FTR 178, [1995] FCJ No 822 [Wells 1995] at para 6). Furthermore,
the Minister is permitted to change its position within the context of a
section 44 application and argue that further information should be disclosed (AstraZeneca,
above, at para 73). The Applicant cannot simply go back and accept an earlier
position and thereby preclude the Minister from disclosing certain records on
the basis that it discontinued its application.
[29]
The
Respondent also submits that there was no impediment to TC determining that the
Act required further disclosure and issuing the Third Decision.
[30]
In
addition, the Respondent submits that the Applicant has been inconsistent in
its position on accepting the First Decision and is basically arguing its
position anew. Given that this matter is brought pursuant to section 44, the
Court should proceed to determine whether the exemptions have been correctly
applied to the Third Decision.
The ICC’s
Submissions
[31]
The
ICC submits that despite explicit obligations under the Act, TC failed to
provide the requestor with timely access to the requested information. A
determination by this Court of the exemptions applicable to the Disputed Information
would be the most timely manner by which the requestor can now receive the
information.
[32]
The
ICC adopts TC’s position that it would not be appropriate relief in the current
matter for the Court to declare the Third Decision to be void and of no
effect. Further, that the Applicant cannot, on one hand, use section 44 to
seek review of the Third Decision and, on the other hand, argue that there is
no Third Decision because it is void and of no effect.
[33]
While
the manner in which TC proceeded to issue a further decision in the current
matter is not explicitly anticipated under the Act, it is what best accords
with the requestor’s substantive rights and with the intent of the Act at this
point in the process. Finding the Third Decision void and of no effect would
serve no useful purpose. It would prejudice the requestor by resulting in a
further delay. Conversely, a determination now as to whether or not the
Disputed Information is exempt from disclosure pursuant to subsection 20(1) of
the Act would not prejudice the Applicant.
[34]
The
ICC argues that any procedural defects that might have occurred have been cured
as the Applicant has been provided with an ample opportunity to make
representations. The Applicant has also exercised its own rights by bringing
applications for judicial review.
Analysis
[35]
In
my view, this Court has jurisdiction to assess whether a decision made by a
head of a government institution to disclose information pursuant to subsection
28(1)(b) of the Act is void and of no effect.
[36]
The
wording of section 44 does not limit a review by this Court to only determinations
of whether the section 20 exemptions have been correctly applied, although it
clearly has that role (Merck Frosst, above at para 53; Air Atonabee
Ltd v Minister of Transport, [1989] FCJ No 453 (QL) (TD) [Air Atonabee].
Rather, section 44 permits a broader court review process. A third party
that has been notified pursuant to subsection 28(1)(b) or subsection 29(1) of a
decision of a head of a government institution to disclose a record or a part
of a record may “apply to the Court for a review of the matter”.
[37]
In
the context of answering the question of whether section 19 of the Act may be
raised in a section 44 review proceeding, the Supreme Court of Canada in HJ
Heinz Co of Canada Ltd v Canada (Attorney General), 2006 SCC 13, [2006] 1
SCR 441 [HJ Heinz Co] at para 41 found that it was the intent of the
legislature to give the courts “a generous ambit of review on a s. 44
application” (para 41). It also confirms a broad interpretation of the term
“matter” in a section 44 review:
[44] Third, s. 44 allows the third party to
apply to the court for a review of "the matter". Nothing in the plain
language of s. 44 expressly limits the scope of "the matter". The
French version is even more general because the subject of the review is not
mentioned. What is more, in a case dealing with the interpretation of s. 18 of
the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal Court of Appeal
held that "matter" embraces "not only a 'decision or order' but
any matter in respect of which a remedy may be available under section 18 of
the Federal Court Act": Krause v. Canada, [1999] 2 F.C. 476,
at para. 21; see also Morneault v. Canada (Attorney General), [2001] 1
F.C. 30 (C.A.), at para. 42.
[38]
In
my view, it is clear from the above that any aspect of a decision by a head of
a government institution to disclose third party information pursuant to the
Act, including the validity of the decision itself, is a “matter” that may be
reviewed by the Court as a part of a section 44 review.
[39]
Moreover,
in Matol Botanical, above, an application was brought under section 44
seeking judicial review of four decisions of the Minister of National Health
and Welfare permitting the disclosure of certain information pursuant to four
requests made under the Act. Before the review was heard, Matol received two
new notices of intention and two new decisions to disclose arising from the
original requests. Those decisions would have permitted the disclosure of
further information that the Minister, in the prior decisions, determined was
exempt from disclosure. With respect to the Minister’s second decisions, for
reasons addressed in greater detail below, this Court held at para 40, “[t]hat
second decision is void and of no effect since the Act authorizes the
institution concerned to make only one decision with respect to a single
request…” Clearly in that case this Court considered itself to have
jurisdiction, within the section 44 application before it, to determine that
the challenged second decisions were void and of no effect.
[40]
AstraZeneca, above,
and again discussed in more detail below, concerned an
application under section 44 of the Act brought as a result of the applicant therein
being provided with notice of a decision of the Minister of Health to disclose
certain records. During the course of the section 44 litigation and after reviewing
the applicant’s supporting affidavit evidence, the Minister decided to disclose
further information in response to the original request for information. The Court
referred to Matol Botanical, above, and held that, in the context of a section
44 de novo review, the Minister was not required to sustain all or part
of a decision that the Minister no longer believed was sustainable.
[41]
Notable
for purposes of the question of this Court’s jurisdiction is that in AstraZeneca,
above, the Court did not decline to deal with the Minister’s authority to make
a subsequent decision even though, had it decided the matter differently, the
second decision would have been rendered void and of no effect.
[42]
Counsel
for the Respondent was unable to refer me to any case law in support of its
position that a challenge to the validity of the Third Decision must be brought
pursuant to section 18.1 of the Federal Courts Act. I also note that sections
45 to 53 of the Act describe the role of this Court in a section 44 application
which includes the manner in which it hears matters, examines records, takes precautions
to avoid the disclosure of confidential information in dispute, and the orders it
may issue. Given this codification, I have difficulty accepting, in the
absence of explicit legislative intent, that the discrete issue of the validity
of a decision made under subsection 28(1)(b) of the Act would fall outside a
section 44 review and within the provisions of the Federal Courts Act.
[43]
For
all of these reasons, I find that this Court has jurisdiction under section 44
to determine whether a decision of a head of a government institution made
pursuant to subsection 28(1) of the Act is void and of no effect.
[44]
This
finding leads to an analysis on the merits of the question of the validity of
the Third Decision. The Applicant submits that it is void and of no effect as
the Act does not permit TC to make multiple decisions regarding a single
request for information. The Respondent argues that TC was entitled to change
its position.
[45]
It
is important to note that the Act sets out a detailed process and precise
timetable within which government departments, third parties and others must respond
to and otherwise address information requests. This process is in keeping with
the purpose of the Act which seeks to balance public access to information with
principles governing privacy (HJ Heinz Co, above, at para 31; Matol
Botanical, above, at para 35).
[46]
Pursuant
to section 7 of the Act, information requests must, in principle, be processed
and resolved within 30 days. If the head of a government institution intends to
disclose a record requested under the Act that contains, or which the head of
the institution has reason to believe may contain, third party information that
is exempted from disclosure by subsection 20(1), then it must give the third
party written notice of the request and of its intention to disclose the
information within thirty days after the request is received (subsection 27(1)).
That period may be extended, in specified circumstances, for up to a further thirty
days (subsection 27(4) and subsection 9(1)). Where such notice is given to the
third party, it in turn has twenty days to make representations as to why the
information, or any part of it, should not be disclosed (subsection 28(1)(a)).
Within thirty days after the notice is given to the third party, the head of
the institution shall make a decision as to whether or not to disclose the
information, or any part of it, and give written notice of its decision to the
third party (subsection 28(1)(b)).
[47]
Where
the head of the government institution decides to disclose the requested
information, or any part of it, then the head must give the requestor access to
that information “forthwith” on completion of the twenty days after notice is
given to the third party unless the third party requests a section 44 review of
the decision (subsection 28(4)).
[48]
In
Matol Botanical, above, the factual background of which is described above,
the Court stated the following in finding that neither of the second decisions
to disclosure further information was valid:
[33] In my view, neither of these later decisions
has the force of law. Subsection 28(1)(b) of the Act provides that the
respondent was required:
Within thirty days after the notice is given, …,
[to] make a decision as to whether or not to disclose the record or the part
thereof and give written notice of the decision to the third party.
[34] This is what was done in each of these files
three years earlier: […]. The Act does not authorize the institution in
question to sit on appeal from its own decision and from the outset to decide
what the outcome will be on two subsequent occasions. Only one decision may be
made with respect to an information request, and once it is made the
institution in question does not have the discretion to get around it.
[35] This is clear from the scheme of the Act,
which sets out a very precise timetable and detailed procedure for processing
an information request and with respect to the decision-making process with the
institution concerned must follow.
[…]
[39] While these time lines are not mandatory,
the Act nonetheless provides for a very precise decision-making process which
must, on its face, result in only one decision.
[40] The second decision made in file no.
T-2912-90 is not intended to correct a clerical error. As established by the
letters of November 3 and December 22, 1993, the respondent simply changed his
mind on the question of whether or not the additional records should be
disclosed. At the time when the first decision was made, he had concluded that
these records were exempted under section 20. In his second decision, three
years after the fact, the respondent claimed to be exercising his
decision-making power again by reversing his first decision respecting the
additional records in question. That second decision is void and of no effect
since the Act authorizes the institution concerned to make only one decision
with respect to single request, that being the decision made in November 1990.
[49]
While
the Applicant relies on Matol Botanical, above, interestingly, both the
Applicant and the Respondent rely on AstraZeneca, above, to support
their respective positions. In AstraZeneca, the Court referred to Matol
Botanical, but came to a different conclusion. I think that it is useful
to set out, in full, the reasoning of the Court in AstraZeneca:
[62] This Court
granted a motion for reconsideration to deal with the issue (which the Court
had initially understood as no longer being in dispute) of whether the Minister
had the jurisdiction to "unsever" information (disclose information)
which the Minister had previously decided should be severed (not disclosed).
The issue is whether the Minister can change his/her mind and disclose
information which the Minister had previously decided fit within one or more of
the exemptions from disclosure under section 20(1) of the Act.
[63] During
the course of this litigation under section 44 of the Act, the Respondent
decided, after reviewing the affidavit of an officer of the Applicant, that
certain information should now be disclosed. This decision to disclose is a
reversal of the Respondent's earlier decision that this specific information
was exempt from disclosure.
[…]
[65] The
Applicant argues that the Minister has no jurisdiction to make a second
decision to disclose and that the original decision cannot be altered during
the review of the decision. It puts its case succinctly that the Minister's
decision to disclose cannot be made a "moving target". The Applicant
relies upon the decision of Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare) (1998), 84 F.T.R. 168 (F.C.T.D.).
[66] For the
reasons given by Justice Noël in Matol, I agree that the Minister
cannot initiate another disclosure process after the Minister has made the
decision not to disclose some of the information requested. There must be some
other triggering event provided for under the Act to allow for this additional
disclosure.
[67] The Act
provides an elaborate process to deal with third party information. The Act
sets up a tension between the right of the public to know and the right of a
third party to keep its affairs confidential. The Act provides for two
opportunities where the Minister may change the original decision or at least
take a position inconsistent with the original decision.
[68] The first
is found in section 29 where the Minister may, upon recommendation of the
Information Commissioner, decide to disclose information which the Minister had
originally decided was exempt from disclosure.
[69] The second
is inherent to the Court review process under section 44. It has been held in
such cases as Air Atonabee, 3430901 Canada Inc. v. Canada
(Minister of Industry), [2001] F.C.A. 254 and Wyeth-Ayerst Canada Inc.
v. Canada (Attorney General), [2003] F.C.J. No. 916 that the Court
review to be conducted is a de novo review in which the
standard of review is correctness.
[70] In my view,
in the context of that review, a Minister is not required to sustain all
or a part of the decision which the Minister no longer believes is sustainable.
The Minister is free to argue that the exemption from disclosure no longer
applies to the particular information. A third party is free to make of it what
they will in respect of the Minister's change of position - no doubt contending
that the Minister was correct in the first place and that there is no good
reason in fact, law or both, for the change of mind.
[71] It is for
the Court to decide whether the exemption from disclosure is truly applicable
and whether a requester is entitled to the information.
[72] Therefore
the Minister cannot, on its own initiative, reverse itself and start the
disclosure process anew with the necessary notices, representations and other
procedural steps. However, the Minister cannot be forced to defend in this
Court, what it now believes is, an indefensible position regarding the
particular information.
[73] In the
present case, the Minister was entitled to change its position and argue that
the information should be disclosed. The Minister is neither functus nor
estopped and the information cannot be exempt from disclosure solely on the
basis that the Minister made an earlier and different decision. The information
either falls within the section 20 exemption or it does not, based upon the
evidence before the Court.
[Emphasis added]
[50]
Thus,
AstraZeneca, above, upheld Matol Botanical, above, in finding
that a Minister cannot, on his or her own initiative, reverse themselves and
start the process anew with the necessary notices, representations and
procedural steps.
[51]
Rather,
AstraZeneca, above, identifies two triggering events or opportunities provided
for in the Act where a Minister may change his or her original decision, or at
least take a position inconsistent with the original decision:
i.
pursuant
to section 29 where the Minister, may, upon the Information Commissioner’s
recommendation decide to disclose information which the Minister originally
decided was exempt from disclosure; or
ii.
pursuant
to a section 44 court review process.
[52]
In
that case, the Minister changed position during pending court proceedings and, therefore, the
Court found that this was acceptable given that the court performs a de novo review pursuant to section
44. That
is not the situation in the present case.
[53]
Here,
pursuant to subsection 27(1), TC gave the Applicant notice of its intention to
disclose the requested information on September 28, 2010. The Applicant
provided representations in response on October 15, 2010,
within the twenty days permitted by subsection 28(1)(a). Pursuant to
subsection 28(1)(b), TC was then required to make and give the Applicant notice
of the First Decision.
[54]
Subsequent
to the commencement of the First Application, which precluded release of the First
Decision until that application was addressed, TC informed the Applicant of its
intention to disclose the additional information contained in its Second Decision,
which was subsequently withdrawn as was the First Application. The September
21, 2011, letter from counsel for TC to counsel for the Applicant took the
position that, although the Second Decision had been withdrawn, the Minister’s
position remained that only the information severed from the Second Decision
was properly exempt under the Act. Further, if the Applicant withdrew the First
Application, the Minister “will then have to issue a further section 28 notice
in keeping with this position and his obligations under the AIA”. The letter
also stated that the Second Decision had been withdrawn because AstraZeneca,
above “precluded any further notice while a section 44 application was
pending”. TC subsequently notified the Applicant of the Third Decision.
[55]
In
my view, the Respondent misinterpreted AstraZeneca in both its September
21, 2011 letter and in is submissions in the current Application. Further, by
issuing the Third Decision, TC has done what both Matol Botanical, above,
and AstraZeneca, above, said cannot be done, that is by its own
initiative it started the disclosure process anew although it already made the
First Decision.
[56]
The
Third Decision did not result from either of the two triggering events noted in
AstraZeneca, above, being a recommendation of the Information
Commissioner, or, a section 44 review. At the time that the Third
Decision was rendered, there was no section 44 review process in place. In the
result, the Third Decision was made without authority under the Act and is void
and of no effect and, therefore, there is no decision for this Court to review.
Had TC not withdrawn the Second Decision, then at the hearing of the First
Application, a de novo review of the First Decision, TC could have
argued that it was entitled to change its position and that the Disputed Information captured by the Second Decision should also be released.
[57]
It
follows that because the Third Decision is void and of no effect, TC is now not
afforded the opportunity to change its position within the context of a hearing
de novo. In any event, this section 44 application pertains only
to the Third Decision which would have permitted the disclosure of information
severed from the First Decision. Thus, in the context of any de novo
review, TC would not be seeking to change a position that it no longer believes
to be sustainable rather, it would seek to have its decision upheld. It is the
First Decision from which TC seeks to retrench but that decision is not under
review, the time frame within which a section 44 review of the First Decision
could be made by the Applicant has long since lapsed and there is no authority
under the Act that would permit TC to make a further decision or revise its
First Decision.
[58]
The
Respondent cites the case of Wells 1995, above. There, the respondent
first informed the applicant that the access request would be granted, without
having conducted a review of the documents. It later changed its position as it
found that some of the disclosure was protected by solicitor-client privilege. The
Court held that the head of a public body is not confined by an initial
decision to grant access to the requested records where, upon further review, the
information comes within an exemption. However, Wells 1995 pre-dates AstraZeneca
which, along with Matol Botanical, is factually more similar to the
present case.
[59]
Counsel
for the ICC and the Respondent urge me to decide this matter on the merits of
the Third Decision given that the submissions of all parties were before me. They
submit that this would preserve the time and resources of the parties and of
the Court, and would prevent further delay as the question of disclosure will
only resurface in the future. While I agree that this would be the most
economical and expeditious route and that, in this instance, the Applicant is
unlikely to be prejudiced if it were adopted, I cannot agree that it is the
correct route.
[60]
The
ICC stresses the importance of government departments adhering to the timelines
and process set out in the Act. I agree that compliance with the Act and its
timelines is essential to preserve the decision-making process provided for in
the Act as well as achieving and balancing its objectives. As noted above, the
Act sets out a very detailed and specific procedure to be followed by government
departments, third parties and others. Accordingly, I cannot accept the
further submission by the ICC that while the manner in which TC proceeded to
issue a further decision in the current matter is not explicitly anticipated
under the Act, TC’s manner of proceeding is what best accords with the
requestor’s substantive rights and with the intent of the Act at this point in
the process. This is, essentially, an argument that the ends justify the
means.
[61]
The
manner in which TC issued the Third Decision is not permitted by the Act. That
cannot be ignored or cured merely because of a view that to do so would now best
serve the requestor’s interests. Further, to accept this reasoning would mean
that TC, and any government department in its decision making process, need not
concern itself with compliance with the Act, and would lead to future
uncertainty.
[62]
Further,
third parties as well as requestors have substantive rights under the Act. The
September 21, 2011 letter of TC’s counsel refers to the issuing of a further
section 28 notice if the First Application were withdrawn. However, a notice
of a decision under subsection 28(1)(b) presumes that a third party notice of
an intention to disclose has first been given under subsection 27(1).
This, in turn, triggers the twenty day period within which the Applicant could
make representations prior to the decision being made. In fact, no further subsection
27(1) notice was given prior to TC issuing the Third Decision. Thus, the
manner in which TC proceeded potentially prejudiced the Applicant and did not
address its rights as prescribed by the Act.
[63]
Any
delays in the release of the information to the requestor have arisen from TC’s
election to issue new decisions after issuing the First Decision. TC was in a
position to release the First Decision as of October 28, 2010, until the First
Application was filed. It was again in a position to do so when the First Application
was withdrawn and remained and remains in a position to do so as only the Third
Decision was challenged by the current section 44 application. The Applicant also
confirmed at the hearing before me that it accepted the First Decision. Thus,
only the release of the Disputed Information, which is limited in scope, is at
issue and may potentially be at risk of further delay.
[64]
It
is also important to note that the requestor is not without remedy. If the requestor
takes issue with the First Decision it may avail itself of subsection 30(1)(a)
of the Act which clearly establishes a mechanism for a requestor to file a
complaint with the ICC if it has been refused access to a record or part
thereof.
[65]
For
the above reasons, this application is granted. The Third Decision is of no
force or effect and is quashed. As I advised the parties at the hearing, the
Confidentiality Order dated September 14, 2012 remains in effect and the in
camera portion of the hearing before me shall also be considered to be part
of the Confidential Information defined and governed by that Order.
JUDGMENT
THIS
COURT’S JUDGMENT is that the decision of Transport Canada made
pursuant to the Access to Information Act, RSC 1985, c A-1 and dated
October 18, 2011 is void and of no effect and is quashed. The Confidentiality Order
dated September 14, 2012 remains in effect and the in camera portion
of the hearing held on May 30, 2013 shall be considered to be part of the
Confidential Information defined and governed by that Order. The Applicant
shall have its costs.
“Cecily Y. Strickland”
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