Date: 20071214
Docket: A-502-06
Citation: 2007 FCA 404
CORAM: RICHARD
C.J.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
THE MINISTER OF ENVIRONMENT CANADA
Appellant
and
THE INFORMATION COMMISSIONER
OF CANADA
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1]
This
appeal is the latest chapter of a lengthy saga surrounding the release of
information related to a Cabinet decision made public on May 19, 1995 when the
government introduced C-94, the Manganese-based Fuel Additives Act which
was later adopted by Parliament on April 25, 1997.
[2]
Perhaps
Homer had in mind this prolonged proceeding for the disclosure of information
dating back over 12 years when he penned this famous line in The Iliad,
“The fates have given mankind a patient soul”.
Relevant Facts
[3]
The
following is an abridged description of the proceedings, the details of which can
be found in paragraphs 1-35 of the Federal Court judge's decision.
[4]
The request for disclosure was made to the
Minister under section 6 of the Access to Information Act, R.S.C. 1985 [Access
Act] by Ethyl Canada Inc. on September 16, 1997 for discussion papers with
respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT) that had been
presented by the Minister of the Environment to Cabinet in 1995.
[5]
The Minister refused Ethyl Canada Inc. access to
four records which the Minister claimed were excluded from the scope of the Access
Act under paragraphs 69(1)(a) and (e) because they constituted “confidences
of the Queen’s Privy Council for Canada”.
[6]
Following the Minister’s refusal, the
Commissioner conducted an investigation and concluded that a portion of the
Memorandum, namely the Analysis Section, fell within the scope of “discussion
paper” material and therefore recommended that the Minister disclose portions
of the requested records.
[7]
The Minister rejected the Commissioner’s
recommendation. The Commissioner then applied to the Federal Court for a review
of the Minister’s refusal to disclose the requested records.
[8]
On April 2, 2001, the Federal Court allowed the
Commissioner’s application for review and issued an Order requiring the Clerk
of the Privy Council (the Clerk) to sever and release portions of the requested
records containing background explanations or analyses of problems of policy
options (Canada (Information Commissioner) v. Canada (Minister of
Environment), [2001] 3 F.C. 514.
[9]
This order was appealed to the Federal Court of
Appeal in February 7, 2003. It upheld the Federal Court’s decision (Canada
(Information Commissioner) v. Canada (Minister of Environment), [2003]
F.C.J. 197, 2003 FCA 68, but varied the order to allow the Minister of the
Environment the opportunity to consider and claim any exemption that might
apply to the analysis section of the Memorandum to Cabinet.
[10]
The Clerk then reviewed the documents pursuant
to paragraph 39(2) (a) of the Canada Evidence Act [the CEA] and
found that one particular document, the Memorandum, contained “a corpus of
works the purpose of which is to present background explanations, analyses of
problems or policy options to Council for consideration by Council in making decisions.”
The Clerk then referred the documents to the Minister for review and to claim
any remaining grounds for exempting disclosure under the Access Act.
[11]
The Commissioner initiated another complaint
under the Access Act in respect of the Minister’s failure to process the
Analysis Section of this Memorandum on June 2, 2003.
[12]
The Minister then informed the Commissioner and
Ethyl of his decision to invoke the exemptions provided in the Access Act
in respect of portions of a document. Some portions of the Analysis Section
that were not subject to the exemptions were provided by the Minister to Ethyl
Canada Inc. at that time.
[13]
On
February 20, 2004, the Minister maintained her reliance on the exemptions under
subsection 21(1)(a) and (b) and 23 of the Access Act, despite another
investigation by the Commissioner.
[14]
On September 30, 2004, the Commissioner
completed his investigation of the complaint, concluding that the portions of
the Analysis Section withheld under paragraphs 21(1)(a) and (b) of the Access
Act were not exempt and recommended that the Minister disclose the
corresponding portions of the Analysis Section. The Minister rejected the
Commissioner’s recommendation to disclose additional information.
[15]
The Commissioner again applied to the Federal
Court for a review of the Minister’s refusal to disclose the disputed passages on
March 25, 2005. Justice Kelen of the Federal Court allowed the application for
review. It is this decisions that is now before us on appeal by the Minister.
[16]
Kelen J. found that the Minister did not have
the authority to refuse disclosure of the information and, according to section
49 of the Access Act, ordered the Minister to disclose to Ethyl portions
of the disputed passages which are not subject to section 21
discretionary exemptions. He
also returned to the remaining portions of the disputed
passages to the Minister to re-determine with reasons whether disclosure to
Ethyl is warranted.
[17]
It is this latter question which is at issue in
the Respondent’s cross-appeal before this Court.
Analysis
[18]
As the
matter stands before us, the sections of text which are the subject of the
request for access are comprised of nine brief paragraphs. The original
document is 106 pages long. Of this, seven complete sentences and 51 words
forming parts of sentences remain to be disclosed. It is these passages which
have been returned to the Minister.
[19]
The
Appellant argues that the portions of the passages ordered to be disclosed by
Kelen J. must be returned to the Minister to give him or her a chance to invoke
further exemptions under the Access Act.
[20]
On the
cross-appeal the Respondent argues that the discretion given to the courts by
section 49 of the Access Act should be exercised and the totality of the
undisclosed portions of the documents at issue should be disclosed to Ethyl
Canada Inc. given the unreasonable manner by which the Minister of Environment
has approached this particular request for disclosure.
[21]
I agree
with the Respondent’s arguments on the cross-appeal.
[22]
The jurisdiction
of the Court to return portions of the undisclosed document to the Minister
does not preclude the Court from exercising the discretion granted to it
pursuant to s. 49 of the Access to Information Act.
|
Order of Court where no authorization to refuse
disclosure found
49. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on the basis of
a provision of this Act not referred to in section 50, the Court shall, if it
determines that the head of the institution is not authorized to refuse to
disclose the record or part thereof, order the head of the institution to
disclose the record or part thereof, subject to such conditions as the Court
deems appropriate, to the person who requested access to the record, or
shall make such other order as the Court deems appropriate.
|
Ordonnance de la Cour dans les cas où le refus
n’est pas autorisé
49. La Cour, dans les cas où elle
conclut au bon droit de la personne qui a exercé un recours en révision d’une
décision de refus de communication totale ou partielle d’un document fondée
sur des dispositions de la présente loi autres que celles mentionnées à
l’article 50, ordonne, aux conditions qu’elle juge indiquées, au responsable
de l’institution fédérale dont relève le document en litige d’en donner à
cette personne communication totale ou partielle; la Cour rend une autre
ordonnance si elle l’estime indiqué.
|
[23]
This
section allows the Court to order the disclosure of the requested record in
either of two circumstances. First, disclosure is ordered by the Court when it determines
that the head of the government institution was not authorized to refuse its
disclosure, which is not the case in the present situation. Second, the Court can
also make any other order as it deems appropriate.
[24]
This
statutory language is clearly broad enough to permit the Court to order
disclosure of a record rather than sending the matter back to be determined
once again by the head of the government institution.
[25]
I believe
that the particular circumstances of this case warrant an order for disclosure
of these remaining sentences and fragments.
[26]
First, the
records have already been returned to the head of the institution for
re-determination of applicable exemptions under the Access Act following
the decision of the Federal Court of Appeal in (Canada
(Information Commissioner) v. Canada (Minister of Environment), [2003] F.C.J. 197, 2003 FCA 68.
[27]
Furthermore,
the Appellant has failed to demonstrate any reasons that would justify another
opportunity to make a determination of whether a portion of the records is
exempt from disclosure under the Access Act. I am convinced that the
integrity of the Government’s decision-making process would not be compromised
by the release of these sentences and words.
[28]
I have reviewed the remaining sentences, and
sentence fragments, and find it difficult to believe that any of the enclosed
material would warrant an additional return to the Minister.
[29]
In these
circumstances, the Minister should not be entitled a further opportunity to
claim that portions of the record at issue are exempt from disclosure.
[30]
Kelen J.,
in refusing to exercise his discretion to order the disclosure of the totality
of the material, did not give sufficient weight to these significant circumstances.
In Elders Grain Co. v. M/V Ralph Misener (The), [2005] F.C.J. No. 612, 2005
FCA 139, this Court reiterated at paragraph 13 that “[…] if the appellate court
reaches the clear conclusion that there has been a wrongful exercise of
discretion in that no weight, or no sufficient weight, has been given to
relevant considerations or that the trial judge considered irrelevant factors
or failed to consider relevant factors, then an appellate court is entitled to
exercise its own discretion”.
[31]
In
exercising this discretion, I order disclosure of the remaining sentences and
fragments in the record.
[32]
Concerning
the issue of costs raised in the cross-appeal and based on the application of
subsection 53(2) of the Access Act, I cannot agree with the Appellant that
Kelen J. erred in law in refusing costs to the Commissioner.
[33]
The
decision to award costs to an applicant who has raised an important new
principle is clearly a discretionary decision made “where the Court is of the
opinion” that such an award is warranted. This Court will interfere with such a
decision only where the judge is clearly misdirected in law, considered
non-relevant elements or did not justify a decision that is clearly contrary to
the practice generally followed.
[34]
I cannot
find any circumstances in the case at bar that would allow the Court to
interfere with Kelen J.’s decision on this issue.
[35]
The
questions in the main appeal are now moot and the appeal will be dismissed. The
cross-appeal will be allowed in part and the Appellant will be ordered to divulge
all remaining portions of the records for which the Appellant claims an
exemption from disclosure. That part of the cross-appeal, in which the
Respondent claims costs, will be dismissed and the parties will bear their own
costs in these proceedings.
"J.
Richard"
“I
agree
M. Nadon J.A.”
PELLETIER J.A. (Concurring)
[36]
I agree with the disposition of this appeal and cross-appeal proposed by
the Chief Justice but I arrive at that conclusion by a slightly different
route.
[37]
The essential steps which bring us to present
file can be very summarily described as follows:
In Canada (Information Commissioner) v.
Canada (Minister of the Environment), 2001 FCT 277, [2001] 3 F.C. 514 (MMT
No. 1), Blanchard J. decided that discussion papers, as defined in paragraph
69(1)(b) of the Act were subject to the Act. The learned judge sent the
matter back to the Clerk to determine if any part of the records in issue fell
within the statutory definition and if so, to sever them from the balance of
the record and to disclose them.
[38]
In Canada (Information Commissioner) v.
Canada (Minister of the Environment), 2003 FCA 68, (2003), 224 D.L.R. (4th)
498 (MMT No. 2), this Court decided that the Clerk or the Minister were
entitled to claim the benefit of the exemptions set out at sections 13 to 25 of
the Act in relation to the portions of the disputed records which fell within
the definition of discussion papers.
[39]
In Canada (Information Commissioner) v.
Canada (Minister of the Environment), 2006 FC 1235, [2007] 3 F.C.R. 125
(MMT No. 3), Kelen J. decided that the Minister was entitled to invoke the
exemption in favour of Ministerial advice found at section 21 of the Act in
relation to the portions of the disputed record which fell within the
definition of discussion papers. In the course of his decision, the learned
applications judge disallowed certain instances of the exemption claimed by the
Minister and sent some portions of the record back for redetermination.
[40]
The Minister appeals from the manner in which the
applications judge applied the section 21 exemption. The Commissioner
cross-appeals from the finding that the Minister was entitled to claim the
section 21 exemption in relation to material which was found to constitute
discussion papers. If the Commissioner's cross-appeal succeeds, the Minister's
appeal becomes moot.
[41]
I would allow the Commissioner's cross-appeal.
The starting point for this entire exercise was Blanchard J.'s finding in MMT
No.1 that the Act applied to discussion papers, followed by the Clerk's
acknowledgement that record which is in issue here fell within the statutory
definition of discussion papers. As a result, the Minister's claim that the
material is exempt from disclosure pursuant to paragraphs 21(1)(a) or (b)
is made in relation to a record which is subject to the Act only by reason of
having been found to be discussions
papers.
[42]
The basis of the Minister's claim is that,
before the material contained in the discussion papers was brought forward to
Cabinet, it was raised and discussed in his office as part of the process
leading to the preparation of a Memorandum to Cabinet. With respect, this
amounts to an argument that for purposes of the exclusion in section 69, the
records were prepared for Cabinet but for purposes of the exemption in section
21, the records were prepared for the Minister. Such a double-barreled plea is
contrary to logic and to the spirit of the Act.
[43]
The decision to claim the benefit of section 69
is inconsistent with a claim for an exemption under section 21 of the Act
because the two grounds are mutually exclusive. The fact that, as a matter of
process, the material which finds its way into a discussion paper was marshaled
in the Minster's office does not change the identity of the intended consumer
of that information. If it was the Cabinet, then the exclusion in section 69
applies, subject to the exception in favour of discussion papers and the effect
of this Court's decision in MMT No. 2. If it was the Minister, then the Act
applies in all respects and the Minister can claim the benefit of section 21.
It cannot be both. Having chosen to rely on the exclusion set out at section 69
of the Act, the Minister cannot, as a back up position, claim the benefit of
section 21 of the Act.
[44]
For those reasons, I would dispose of the
cross-appeal and the appeal as proposed by the Chief Justice.
"J.D. Denis
Pelletier"
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