[1] These are two appeals brought by the Information Commissioner of Canada (the Commissioner) from two interlocutory decisions rendered by McKeown J. ordering the Commissioner to file, on a confidential basis, transcripts with the Federal Court and with counsel for the respondents: The Attorney General of Canada and Bruce Hartley v. The Information Commissioner of Canada, 2002 FCT 129 (the February Order) and The Attorney General of Canada and Bruce Hartley v. The Information Commissioner, 2002 FCT 624 (the May Order).

Background

[2] At issue are twenty nine applications for judicial review arising from four access requests. The nature of these requests and the applications for judicial review (which have been combined into seven groups to be heard serially) are outlined in the February Order of the Motions Judge.

[3] In his February Order, the Motions Judge, at the request of the respondents' counsel, ordered the transcripts of the Confidentiality Order Applications, the Propriety of Questions Applications, the Compliance with Subpoena Application, and the ss. 37/38 Applications, to be filed by the Commissioner, on a confidential basis, with the Court. When the Commissioner failed to file the transcripts with respondents' counsel, the Motions Judge again ordered the Commissioner to do so: May Order. Since the May Order, the Compliance with Subpoena Application and the ss. 37/38 Applications have been discontinued.

[4] The transcripts were filed with the Court in March 2002. Counsel informed us at the hearing that the transcripts had been delivered to counsel for the respondent in or about June 2002.

Analysis

[5] The appeals should be dismissed as the Motions Judge did not err in ordering the filing and delivery of the transcripts in the February or May Orders.

February Order

[6] The Motions Judge did not err in concluding that Rules 317 and 318 of the Federal Court Rules, 1998, SOR/98-106 do not conflict with the Access to Information Act, R.S.C. 1985, c. A-1. Nor did he err in distinguishing this case from Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.) or Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337 (T.D.) ("Petzinger"). Those cases are distinguishable in two respects. First, the applicants in these proceedings have requested that the material be filed with the Court and with counsel on a confidential basis pursuant to Rule 152 of the Federal Court Rules, 1998. Second, unlike in Rubin and Petzinger, the very matter under review in these applications is the investigatory processes of the Information Commissioner. Without access to the transcripts, it will be difficult, if not impossible, for the applicants to put forward their case.

May Order

[7] Since the Commissioner failed to serve the transcripts pertaining to the Confidentiality Order Applications and the Propriety of Questions Applications, on a confidential basis, to respondents' counsel, the Motions Judge did not err in ordering the Commissioner to file the transcripts with counsel.

[8] Accordingly, both appeals will be dismissed with one set of costs.

[9] These reasons will be filed in Docket A-82-02 and Docket A-374-02.

"J. Richard"

Chief Justice

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEAL FROM AN INTERLOCUTORY ORDER OF THE FEDERAL COURT OF CANADA, TRIAL DIVISION DELIVERED FEBRUARY 1, 2002 IN DOCKET T-582-01

DOCKET: A-82-02

STYLE OF CAUSE: INFORMATION COMMISSIONER OF CANADA v. THE ATTORNEY GENERAL OF CANADA and BRUCE HARTLEY

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: June 25, 2003

REASONS FOR JUDGMENT OF THE COURT : Richard C.J.

Linden J..A..

Rothstein J.A.

DELIVERED FROM THE BENCH BY: Richard C.J.

APPEARANCES:

Mr. Raynold Langlois, Q.C. FOR THE APPELLANT

Ms. Chantal Chatelain

Mr. Danaiel Brunet

Mr. Peter K. Doody FOR THE RESPONDENTS

Ms. Mandy Moore

SOLICITORS OF RECORD:

Information Commissioner FOR THE APPELLANT

Ottawa, Ontario

Langlois Gaudreau

Montréal (Québec)

Borden Ladner Gervais LLP

Ottawa, Ontario FOR THE RESPONDENTS