Date: 20080715
Docket: A-531-07
Citation: 2008 FCA 239
Present: EVANS
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
TORONTO SUN WAH TRADING INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This
appeal was commenced almost 8 months ago, and has not yet progressed to the
point of the filing of an agreement as to the contents of the appeal book. Almost
six months after the appeal was commenced, the respondent (the Crown) moved for
an order dismissing this appeal for delay. The appellant (Toronto Sun Wah) opposes
that motion and moves for an order extending the time for filing the agreement
as to the contents of the appeal book and the appeal book. The Crown opposes that
motion. The motions were considered together.
[2]
The
underlying facts, as stated by Justice Teitelbaum, relate to a salmonella
outbreak in southern Ontario in November of 2005. That
outbreak apparently was linked to the consumption of bean sprouts. The Canadian
Food Inspection Agency (the CFIA) issued a Health Hazard Alert notifying the
general public that mung bean sprouts supplied by Toronto Sun Wah may contain
salmonella bacteria. Toronto Sun Wah voluntarily recalled its bean sprouts from
the market.
[3]
In
December of 2005, the CFIA received a request under the Access to
Information Act, R.S.C. 1985, c. A-1, seeking information relating to the
bean sprout recall investigation file at the Office of Food Safety and Recall.
By April 14, 2006, the CFIA had identified the information sought and
determined that some of it contained references to Toronto Sun Wah. On that
date the CFIA sent to Toronto Sun Wah the third party notice required by
section 27 of the Access to Information Act, describing the information
relating to Toronto Sun Wah that the CFIA proposed to release. Toronto Sun Wah
responded with a number of objections based on section 19 and section 20 of the
Access to Information Act. The CFIA accepted some but not all of the
objections and, by letter dated April 27, 2006, advised Toronto Sun Wah of its
revised proposal to release information.
[4]
Pursuant
to section 44 of the Access to Information Act, Toronto Sun Wah had 20
days to commence an application in the Federal Court for judicial review of the
decision of the CFIA to release information relating to Toronto Sun Wah.
Toronto Sun Wah filed such an application in the Federal Court on May 16, 2006.
[5]
Toronto
Sun Wah was required to take a number of steps to have its application heard in
the Federal Court. Several of those steps were taken outside the normal
deadlines, with the Crown’s consent. All records were finally filed by November
7, 2006, but the requisition for hearing had not been filed by December 12,
2006. On that date, the Federal Court issued a notice of status review. Toronto
Sun Wah responded to that notice and its application was permitted to continue.
The requisition for hearing was filed on February 23, 2007. The hearing was
scheduled for 9:30 a.m. on October 17, 2007.
[6]
According
to the affidavit filed by the Crown in support of its opposition to the
extension of time now sought by Toronto Sun Wah, counsel for Toronto Sun Wah
did not appear at the time scheduled for the Federal Court hearing. At 9:55
a.m., Justice Teitelbaum indicated orally that he would dismiss the application
on the basis of counsel’s failure to appear. However, counsel for Toronto Sun
Wah did finally appear before Justice Teitelbaum made the threatened order. He heard
argument on the merits and reserved his decision. One week later, on October
24, 2007, Justice Teitelbaum rendered judgment dismissing the application (2007
FC 1091).
[7]
On
November 23, 2007, Toronto Sun Wah filed a notice of appeal, alleging that
Justice Teitelbaum erred in finding that certain information did not meet the
requirements of sections 19 and 20 of the Access to Information Act, and
in “failing to consider the public policy issues with respect to information released
by a person as required by law and that such information shall remain
confidential to the person to whom and for the purpose for which it is
divulged.”
[8]
Toronto
Sun Wah has not sought an order staying the judgment of Justice Teitelbaum.
However, it appears from the material submitted by the Crown that the CFIA has
deferred the release of the disputed information pending the outcome of the
appeal.
[9]
The
motions before me require an understanding of the procedural history of this
appeal. According to Rule 343(1) of the Federal Courts Rules, SOR
98/106, an agreement as to the contents of the appeal book was required to be
filed within 30 days after the filing of the notice of appeal. Taking the
Christmas recess into account, the deadline for that step was Thursday, January
10, 2008. One week before that deadline, counsel for Toronto Sun Wah sent a
letter to counsel for the Crown enclosing a draft agreement as to the contents
of the appeal book. Crown counsel responded promptly, indicating her general
agreement but noting correctly that the appeal book should not include the
memoranda of fact and law, statutes or authorities, and also indicating that
the agreement should list the exhibits to the affidavits included in the appeal
book.
[10]
In late
January of 2008, Crown counsel contacted counsel for Toronto Sun Wah to inquire
about the status of the agreement. He indicated that he would follow up, but he
apparently did not do so and he did not contact her again. She reached the
conclusion that Toronto Sun Was no longer interested in pursuing the appeal
and, on May 8, 2008, she filed the Crown’s motion to dismiss the appeal for
delay.
[11]
On May 9,
2008 after the Crown’s motion record was served on Toronto Sun Wah, counsel for
Toronto Sun Wah told Crown counsel that after their correspondence in early
January of 2008 he had expected to receive her consent to the contents. He does
not explain why he expected her to consent to an agreement that she thought was
incorrect. Nor does he explain why he did not contact her, or follow up with
her after she had contacted him in late January. In any event, he enclosed a
revised agreement making the changes she had suggested at the outset. Crown
counsel confirmed her agreement in principle with the revised agreement, but
declined to sign it because she had already filed a motion to dismiss the
appeal.
[12]
On May 20,
2008, counsel for Toronto Sun Wah filed a motion record opposing the Crown’s motion
to dismiss the appeal, and also filed a motion record seeking an extension of
time for filing the agreement as to the contents of the appeal book and the
appeal book. By that date, over 4 months had passed since the date on which the
agreement as to the contents of the appeal book should have been filed. The
Crown opposes the motion for an extension of time.
Discussion
[13]
It is
convenient to deal first with the motion of Toronto Sun Wah to extend the time
for filing the agreement as to the contents of the appeal book and the appeal
book.
[14]
An order
granting or refusing an extension of time is discretionary. The applicable
principles are summarized in the leading case, Canada (Attorney General) v. Hennelly (1999), 244 N.R. 299, [1999]
F.C.J. No. 846 (QL) (F.C.A.). The underlying consideration is that justice must
be done between the parties. The factors to be considered are:
(a)
whether
there has been a continuing intention to pursue the appeal;
(b)
whether the
appeal has some merit;
(c)
whether
any prejudice arises from the delay; and
(d)
whether there
is a reasonable explanation for the delay.
[15]
In this
case it is convenient to consider the first and fourth factors together. The
filing of the notice of appeal and the initial attempt by Toronto Sun Wah to
obtain the Crown’s agreement as to the contents of the appeal book indicate an
intention to pursue the appeal up to the early part of January 2008. However,
no action was taken by Toronto Sun Wah after that time, until it was faced with
the Crown’s motion to dismiss in early May. The only explanation offered for
the four months of inaction is that the Toronto Sun Wah was expecting the
Crown’s consent to the initial incorrect version of the agreement as to the
contents of the appeal book. In my view that is not a satisfactory explanation,
particularly in light of the Crown’s unanswered attempt to follow the matter up
in late January. I conclude that Toronto Sun Wah has established neither a
continuing intention to appeal nor a reasonable explanation for the delay.
[16]
As to the
second factor, there is very little on the record from which I can determine
whether there is merit to the appeal. It would appear that the key point of
interest to Toronto Sun Wah is that the disputed information was provided to
the CFIA pursuant to an investigation. However, the material filed by Toronto
Sun Wah refers to no legal principles or authorities from which I can discern
how Toronto Sun Wah proposes to use that general notion as the basis for a
challenge to the correctness of Justice Teitelbaum’s decision.
[17]
As to the
third factor, there is no allegation of prejudice to the Crown. However, the
Crown argues that the party who requested the information has already waited
for some years for a final response, and may well be prejudiced by further
delay. There is no evidence to support that argument, no doubt because the
identity of the requester and the reasons for the request are not legally
relevant in litigation involving a dispute about the disclosure of information
under the Access to Information Act. However, I accept that it is normally
reasonable to presume that undue delay in the disclosure of information under
the Access to Information Act may be prejudicial to the requester. Toronto
Sun Wah argues that the disclosure of the disputed information will be
prejudicial to it, but that argument assumes that the appeal has merit and, for
the reasons explained above, that assumption does not appear to be well
founded. On balance, it appears to me that the factor of prejudice favours the
position of the Crown.
[18]
For these
reasons, I would dismiss the motion of Toronto Sun Wah for an extension of
time. As that will preclude Toronto Sun Wah from proceeding with this appeal,
it follows that I would also allow the Crown’s motion to dismiss the appeal,
and dismiss the appeal with costs.
“K.
Sharlow”
“I
agree.
John M. Evans J.A.”
“I agree.
Johanne Trudel J.A.”
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