Date: 20020911
Docket: A-489-01
Neutral citation: 2002 FCA 320
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant/Intervener
and
CANADA POST CORPORATION
Respondent/Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
Respondent
and
PETER HOWARD
Respondent
Heard at Ottawa, Ontario, on September 11, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on September 11, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020911
Docket: A-489-01
Neutral citation: 2002 FCA 320
CORAM: DÉCARY J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant/Intervener
and
CANADA POST CORPORATION
Respondent/Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
Respondent
and
PETER HOWARD
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on September 11, 2002.)
EVANS J.A.
[1] This is an appeal from a decision, dated August 23, 2000, in which the Motions Judge varied a confidentiality order issued under section 47 of the Access to Information Act, R.S.C. 1985, c. A-1. The variance was sought to allow Anita Lloyd, an official with Public Works and Government Services Canada ("PWGSC"), to comply with a subpoena duces tecum issued by the Deputy Information Commissioner under subsection 36(1) of the Act in the course of an investigation into the propriety of PWGSC's refusal to disclose part of a record sought under the Act.
[2] The Commissioner appeals on the ground that there was no conflict between the terms of the confidentiality order and the subpoena and that, accordingly, the Motions Judge erred in law when she granted the motion and varied the order "by abundance of caution", after she had also decided that there was no conflict.
[3] After the Motions Judge made the order, Ms. Lloyd complied with the subpoena, thus rendering the appeal moot. However, the Commissioner takes the position that the Court should nonetheless hear and determine the appeal in the exercise of its discretion, because it raises a legal question that is likely to recur in other situations, including litigation that is in abeyance pending the outcome of this appeal.
[4] If the question is not resolved, counsel submits, the Commissioner's ability to discharge his statutory functions efficiently will be hampered. In particular, since a confidentiality order cannot prevent him from requiring an official to produce a record, the Commissioner should not have to appear on a motion to vary a confidentiality order after he has issued a subpoena requiring an official to produce a record. Counsel for the Minister of PWGSC raised no objection to our hearing this appeal despite its mootness.
[5] We are not satisfied that the appellant has met the criteria established in Borowski v. Canada, [1989] 1 S.C.R. 342, governing the Court's exercise of its residual discretion to hear and determine a matter that is moot. The fact that a question is liable to recur in subsequent litigation is not in itself sufficient to engage the discretion of the Court, at least when, as here, the issue is not one that of its very nature is evasive of review. Moreover, the future utility of deciding this appeal on its merits is diminished by the fact that, as counsel for the Commissioner demonstrated, the terms of confidentiality orders issued under section 47 vary from case to case.
[6] For these reasons, we will dismiss the appeal for mootness, without costs. We would only observe that, in all the cases to which counsel drew our attention, the deciding Prothonotary or Judge concluded that the terms of the confidentiality orders under consideration did not conflict with the Commissioner's subpoena. Moreover, in none of these cases was it said that a variance was necessary in order to avoid a conflict.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-489-01
STYLE OF CAUSE: The Information commissioner of Canada
-vs-
Canada Post corporation and others
PLACE OF HEARING: Ottawa
DATE OF HEARING: September 11, 2002
REASONS FOR JUDGMENT OF THE COURT:
DÉCARY, J.A.
EVANS, J.A.
PELLETIER J.A.
RENDERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
Mr. Daniel Brunet FOR THE APPELLANT
Mr. Christopher Rupar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Daniel Brunet FOR THE APPELLANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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