Date: 20010829
Docket: A-43-00
Neutral citation: 2001 FCA 253
CORAM: STRAYER J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF INDUSTRY CANADA
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
and PATRICK MCINTYRE
Respondents
Heard at Ottawa, Ontario, on May 30, 2001.
Judgment delivered at Ottawa, Ontario, on August 29, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STRAYER J.A.
DÉCARY J.A.
Date: 20010829
Docket: A-43-00
Neutral citation: 2001 FCA 253
CORAM: STRAYER J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
THE MINISTER OF INDUSTRY CANADA
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
and PATRICK MCINTYRE
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal by the Minister of Industry Canada from a decision of the Trial Division, now reported as Information Commissioner (Canada) v. Canada (Minister of Industry) (2000), 184 F.T.R. 210, in which the Applications Judge held that the weightings assigned to various criteria used to evaluate an application for a licence were not exempted from disclosure under the Access to Information Act, R.S.C. 1985, c. A-1.
[2] The principal issue raised on appeal is whether documents prepared by officials containing these weightings ceased to be exempt under paragraph 21(1)(a) as "advice and recommendations developed by or for ... a minister of the Crown" when they were approved by the Minister and formed the basis of his decision to award a licence.
[3] The appeal was heard immediately after the consolidated appeals in Canada (Information Commissioner) v. Canada (Minister of Industry) and 3430901 Canada Inc. & Telezone Inc. v. Canada (Minister of Industry), 2001 FCA 254 ("Telezone"). Since the reasons for decision in Telezone, supra, are applicable to the disposition of this appeal, it is not necessary to repeat them in detail here.
[4] In both Telezone, supra, and the case at bar, the information requested concerned decisions by the Minister to award radiocommunication licences. In the present case, the licence was for orbital slots for direct broadcast satellite services.
[5] The decision-making processes from which both cases arose appear to have been similar. The process followed with respect to the Telezone application is described in the reasons for decision in that case at paragraphs 9-13. However, in the instant case since only one application was found to comply with the eligibility criteria for the licence, it was unnecessary for the officials to conduct a comparative evaluation. Their task was simply to determine whether the applicant satisfied Industry Canada's evaluation criteria, and not to rank or to assign specific scores.
[6] After the working group had evaluated the application, it reported its findings and recommendations to the selection panel, which, in turn, reported to the Minister with its recommendations. The Minister announced the award of the licence to the only eligible applicant.
[7] Both parties to this appeal raise as issues the approach to be taken to the interpretation of the Act and the standard of review to be applied by the Court when reviewing under section 41 or 42 a refusal by the head of a government institution to disclose a record. The interpretation of the Act is considered at paragraphs 23-27 of the reasons in Telezone, supra. For the reasons also given in Telezone (at paragraphs 28-41), the Court must, as the Applications Judge in the instant case held (supra, at paragraph 17), determine whether the Minister was correct to conclude that a particular record fell within a statutory exemption.
[8] The Applications Judge also held that the documents initially prepared by officials for the Minister containing the weightings that they had assigned to the criteria constituted "advice and recommendations" within the meaning of paragraph 21(1)(a), and, therefore, that the Minister had correctly refused to disclose them. Although this conclusion was not challenged by the Commissioner in this appeal, the Court concluded in Telezone, supra, at paragraphs 54-64, that similar documents were exempt as "advice and recommendations". Nor was issue taken with the Applications Judge's conclusion that the Minister's discretion to withhold these documents had not been unlawfully exercised.
[9] The remaining issue is whether the documents containing the final weightings lost their exempt character as "advice and recommendations" after the Minister had decided to adopt them as the basis of his decision to award the licence to the applicant. Although the parties elected to make their principal oral submissions on this issue in the context of this appeal, the Court dealt with it in Telezone, supra, at paragraphs 65-76.
[10] The documents in dispute in this case are part of the final version of a slide deck and briefing note prepared for the advice of the Minister by senior officials of Industry Canada setting out the evaluation criteria, and the weightings assigned to them, for use in determining the award of licences. These were discussed with the Minister and approved before licence applications were received. The Minister has disclosed part of the documents in question.
[11] The documents still in dispute are not labelled "Minister's reasons for decision"; they are the documents that the Minister's officials prepared. When created, they were clearly "advice and recommendations" to the Minister within the meaning of paragraph 21(1)(a). For the reasons given in Telezone, supra, the content of the documents did not lose its character as advice with the Minister's apparent adoption of the slide deck as the basis of his decision to award the licence.
[12] Further, paragraph 21(2)(a) only exempts documents otherwise falling within paragraph 21(1)(a) if they contain a statement of reasons for a decision made in the exercise of a discretionary power when the decision affects the rights of a person. Since the decision to award the licence did not affect anyone's legal rights, paragraph 21(2)(a) does not apply. In the absence of a document containing the Minister's decision and reasons, separate from that containing the advice, the fact that the advice that it contained was accepted does not automatically change its nature.
[13] Unlike the Applications Judge, I can see no material distinction between the facts of the case at bar and those in Telezone, supra. Consequently, I must respectfully disagree with his conclusion that, in the version finally approved, the weightings became decisions of the Minister and thereby ceased to be advice.
[14] Having concluded that the document containing the final weightings is exempt from disclosure by paragraph 21(1)(a), I must now consider whether the Minister's discretion to disclose was unlawfully exercised. In view of the Applications Judge's conclusion that the documents in dispute must be disclosed, he did not consider the legality of the Minister's discretionary refusal to disclose records that he maintained that he did not have to disclose. However, since the relevant materials were before us, and the question was fully argued, the Court can decide for itself whether the exercise of the discretion was lawful, without having to send it back to the Trial Division. Further, for the reasons given in Telezone, supra, at paragraphs 82-99, the reverse onus provision in section 48 of the Act does not apply to the review of the exercise of the discretion to withhold an exempt document.
[15] Counsel for the Commissioner submitted that the exercise of discretion by Mr. Trottier, the Minister's delegate, was legally flawed in several respects. First, he based his decision on an internal directive to officials administering the Access to Information Act that took too narrow a view of the scope of the discretion by providing that a document containing advice and recommendations should be disclosed when there was "no likely possibility of injury or harm resulting from its disclosure." (Appeal Book vol. 3, page 632)
[16] I am not persuaded by this argument. The sentence on which counsel for the Commissioner relied should be read in context. It comes in a section of the directive dealing generally with the paragraph 21(1)(a) exemption. More pertinent is the passage later in the directive that provides a fuller and more specific account of the factors to be taken into consideration before the discretion to disclose a document exempted by this paragraph is exercised: Appeal Book, vol. 3, page 634. In my opinion, when read as a whole, the directive does not mandate an approach that is based on an erroneous view of the scope of the statutory discretion.
[17] Further, Mr. Trottier stated in cross-examination (Appeal Book, vol. 3, page 552) that he had taken the directive into account "among other things", so that it could not be said that he had fettered the exercise of the Minister's discretion by relying exclusively on the directive, without regard to other considerations.
[18] Second, counsel submitted that the decision to withhold the documents containing the final weightings was wrong in law because it was based on an irrelevant consideration. Thus, in a letter to the Commissioner, the Assistant Deputy Minister, Business Law, said (Appeal Book, vol. 3, page 499) that the reason why the final weightings had not been disclosed was to prevent future applicants for licences from "skew[ing] their proposals to reflect what they believe the department would wish to hear rather than what they really want to do." The letter also stated that Industry Canada wanted to use the same criteria and weightings again when it invited applications for other licences. Mr. Trottier confirmed (Appeal Book, vol 3, page 555) that these considerations had, indeed, been a factor in his decision.
[19] I must confess that I have some difficulty with this reasoning. First, future applicants can have no assurance that Industry Canada will use the same criteria, with the same percentage weightings, to evaluate their applications as those used on previous occasions. Second, one might have thought that, in any event, Industry Canada would want applicants to know that it attached particular importance to a given criterion, so that applicants could provide the fullest information on it. After all, examiners commonly inform students of the marks carried by particular questions to enable them to allocate their time according to the importance of the question; indeed, not to provide this information would normally be considered unfair.
[20] However, it is not the Court's function to substitute its view for that of the Minister's delegate on how the statutory discretion should have been exercised. And, since there is a rational relationship between the concern of Industry Canada to receive an accurate picture of applicants' intentions and the reasons for the conferral of the discretion, I cannot conclude that Mr. Trottier took into account a legally irrelevant consideration when he based his refusal on the perception that he and his colleagues had of the likely impact of disclosure on the reliability of future information from applicants and of the consequently adverse effect that this would have on the quality of the ultimate licensing decision.
[21] Nor would I be prepared to accept, even if it had been argued, that the basis on which the discretion was exercised rendered the refusal to disclose unreasonable. In my view, the reasons for non-disclosure contained in the record enable the refusal to survive the "somewhat probing examination" that courts have been instructed to undertake when reviewing administrative action for unreasonableness simpliciter: Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56.
[22] It would be little more than judicial second-guessing for me to take issue with the view of experienced officials that disclosure would be likely to diminish the usefulness of the information that future applicants for licences would submit. In the final analysis, the argument of the Commissioner was that, in exercising his discretion to withhold, the Minister had given less weight to the right to access than he should. However, judicial intervention in the exercise of this administrative discretion on the ground of unreasonableness is not warranted, unless the weight attached to the public interest in non-disclosure was quite disproportionate in view of the nature of the limitation on the right to access that thereby would be involved. In my view, the exercise of the Minister's discretion was not shown to be unreasonable.
[23] For these reasons, I would allow the appeal with costs.
"John M. Evans"
J.A.
"I agree
B.L. Strayer J.A."
"I agree
Robert Décary J.A."
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