ARCHIVED - InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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Minister of Environment v. Information Commissioner of Canada and Ethyl Canada Inc
Indexed as: Canada (Information Commissioner) v. Canada (Minister of Environment

File No.:	A-233-01
References:	2003 FCA 68; [2003] F.C.J. No. 197 (QL) (F.C.A.)
Date of decision:	February 7, 2003
Before:	Décary, Noèl and Sharlow JJ.A.
Section(s) of ATIA/PA:	Ss. 25, 69(1) (a), (b), (e), (3)(b) Access to Information Act (ATIA)
Other statute(s):	S. 39(2)(b), (4)(b) Canada Evidence Act (CEA)

Abstract

• Refusal to release "discussion papers" on basis of s. 69(1)(a) and (e) ATIA (Cabinet confidences)
• Certificate issued under s. 39(2)(a) and (e) CEA
• Jurisdiction of Court to review decision whether record is Cabinet confidence and to review issuance of certificate under CEA
• Standard of review
• Meaning of "discussion papers"

Issues

Did the Applications Judge have jurisdiction to review the decision made by the Minister of Environment under paras. 69(1)(a) and (e) ATIA and to review the issuance of the certificate by the Clerk of the Privy Council Office under paras. 39(1)(a) and (e) of the CEA?

If there was jurisdiction, did the Applications Judge err in applying a standard of correctness to the Minister's decision?

Did the Applications Judge err in his interpretation of the words "discussion papers" in s. 69 ATIA and "discussion paper" in s. 39 CEA?

Did the Applications Judge err in ordering that any severable information be disclosed?

Facts

This is an appeal from a decision of the Trial Division ([2001] 3 F.C. 514) granting the application for judicial review filed by the Information Commissioner against the decision of the Minister of Environment, on the advice of the Privy Council Office, denying Ethyl Canada access to four documents which both the Minister and the Privy Council Office determined to be Cabinet confidences pursuant to paras. 69(1)(a) (memoranda to Cabinet) and (e) (briefs to ministers) of the ATIA. In the course of the judicial review proceedings, the Clerk of the Privy Council objected to the disclosure of the documents and issued a certificate under paras. 39(1)(a) and (e) of the Canada Evidence Act (CEA), certifying that the four documents at issue were Cabinet confidences.

Ethyl's request was for "Discussion Papers, the purpose of which is to present background explanations, analyses of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to [MMT]" (a gasoline additive).

Section 69 of the ATIA excludes Cabinet confidences from the operation of the Act. However, an exception is made for "discussion papers" in the case where a Cabinet decision has been made public (subpara. 69(3)(b)(i)) or in the case where four years have passed since the decision was taken (subpara. 69(3)(b)(ii)). At the time of Ethyl's request in 1997, Cabinet's decision with respect to MMT had been made public when the government introduced Bill C‑94 (Manganese-based Fuel Additives Act) in May 1995.

The Applications Judge ruled that he had jurisdiction to review the decision of the Minister made under the ATIA, and to review the issuance of the certificate made under the CEA, but that his review was limited to a consideration of the evidence on the record and to any error appearing on the face of the certificate.

In considering the evolution of the Cabinet paper system, the Applications Judge found that the type of discussion previously reflected in a separate document identified as a "discussion paper" was, during the period in issue, moved to the "Analysis" section of the memorandum to Cabinet. He ordered that the documents at issue be returned to the Clerk of the PCO to determine whether they contained background explanations, analyses of problems or policy options and further ordered that the information be released to the requester if deemed severable by the Clerk.

Decision

The appeal is allowed in part.

Reasons

Issue 1-Jurisdiction of Court
In conducting his review, the Applications Judge considered evidence regarding the evolution of the Cabinet paper system which led him to conclude that the Clerk had misapprehended the law. In so doing, the Applications Judge acted within the confines of the limited scope of review described in Babcock v. Canada (Attorney General), 2002 SCC 57. The judgment in Babcock makes clear that courts can review decisions which "do not flow from statutory authority clearly granted and properly exercised" and may consider "surrounding evidence" to determine whether statutory power has been properly exercised (Babcock, paras. 39-41).

Issue 2-Standard of review
The Court of Appeal affirmed the Applications Judge's conclusion that the appropriate standard of review in this case was correctness. The Applications Judge had characterized the issue as a question of law, namely the proper meaning of "discussion papers".

Issue 3-Meaning of "discussion papers"
The Court of Appeal dismissed the appellants' argument that the Applications Judge erred in construing the words "discussion papers" in para. 69(1)(b) ATIA and "discussion paper" in para. 39(1)(b) of the CEA. While the Court agreed that the words "discussion paper[s]" did not apply to information per se, it found that the Applications Judge's order was intended to compel the disclosure of such discussion to the extent that it continued to be produced, albeit within or appended to other documents. The Court was of the view that the order of the Applications Judge was potentially confusing on this latter point because it did not specifically refer to the purpose contemplated by para. 69(1)(b) ATIA and para. 39(1)(b) CEA ("discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions"). According to the Court, this purpose was essential to the validity of the Applications Judge's order and could not be ascertained with respect to the documents at issue "unless there was, within those documents or appended to them, an organized body or corpus of words which, looked upon its own, comes within the definition of 'discussion paper(s)'". The Court specified that this exercise does not require a line-by-line analysis of the documents. What is required, according to the Court, is that the person reviewing the documents determines whether there is, within or appended to the documents, an organized body or corpus of words which, looked upon its own, meets the definition of "discussion papers".

Issue 4-Exemptions
The Minister should be given an opportunity to claim any exemption that might apply to the severable information. The position of the government officials that the four documents were entirely outside the purview of the ATIA, as well as the fact that third party rights may be affected, led the Court to distinguish the present case from those which "suggest [...] that a government institution ought to claim the relevant exemption at the initial stage, at least insofar as non-mandatory exemptions are concerned".

The order of the Applications Judge was therefore varied to provide that the Clerk of the PCO review the documents at issue (1) to determine whether there exists, within or appended to the documents, a corpus of words falling within the definition of "discussion papers", that can be reasonably severed from the documents pursuant to s. 25 ATIA and (2) in the affirmative, that such corpus be severed and released to the requester subject to any exemption under the ATIA.

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