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Info Source Bulletin Number 28

Stephen M. Byer v. The Hon. John M. Reid, J.G.D. (Dan) Dupuis, Donna Billard, the Hon. Lucienne Robillard, Joyce Sabourin, Thierry Terracol, the Hon. Martin Cauchon, and Robert L. Byer

Indexed as: Byer v. Canada (Information Commissioner)

File No.:	T-1221-02
Reference:	2004 FC 119
Date of decision:	January 26, 2004
Before:	Tabib Prothonotary.
Sections of ATIA / PA:	*Ss. 41, 69(1)(a), (e), (g), (3)(b) Access to Information Act* (ATIA)**
Other statutes:	S. 18.1, Federal Court Act; Rules 317 and 318, Federal Court Rules, 1998

Abstract

No authority under s. 41 ATIA to review Commissioner's findings and recommendations
Mandamus cannot be issued against Commissioner
Federal Court Rule 317 not applicable to permit Court to order Commissioner to disclose information sought
Confidential affidavit justified

Issues

the Court review the findings and recommendations of the Commissioner in a s. 41 ATIA review?
the Court order the Commissioner to disclose to the applicant the information he sought from the government institution?
Should the government institution be permitted to file a confidential affidavit in these circumstances?

Facts

The applicant commenced an application against various representatives of the Treasury Board Secretariat ("TBS") and of the Office of the Information Commissioner ("Commissioner") seeking the review of their decisions in relation to the partial refusal of the applicant's request for access to TBS minutes #816967 and 816968 concerning Treasury Board's Policy on Claims and Ex gratia Payments, and all discussion papers, including background explanations, analysis of problems or policy options, presented for consideration in adopting this policy. TBS refused to provide access to all but 6 of the 96 pages of relevant material on the basis that they fell within subs. 69(1) ATIA. The applicant complained to the Commissioner, who investigated the complaint and concluded that it was not well founded because the applicant had been provided with all of the records to which he was entitled. The applicant claimed that neither TBS nor the Commissioner had taken into account the principles set out in Canada (Information Commissioner) v. Canada (Minister of Environment), [2001] 3 F.C. 514 (T.D.) ("Ethyl") and thus had acted in bad faith. The claim of bad faith with respect to the Commissioner was based largely on a letter of the Commissioner to the applicant in which the Commissioner seemed to acknowledge a failure to apply the principles in Ethyl in the conduct of his investigation of the applicant's complaint.

The applicant, the Commissioner and TBS each brought motions before the prothonotary. The applicant sought to amend his notice of application to include references to a number of documents and records pertaining to the Commissioner's alleged bad faith to consider the principles outlined in Ethyl in arriving at his decision. The applicant also sought a ruling on the Commissioner's objections to the applicant's request for production pursuant to Rules 317 and 318 of the Federal Court Rules, 1998. The Commissioner brought a motion for an order striking out the notice of application or ordering that it proceed as two separate applications. TBS sought leave to file a confidential affidavit and to amend the designation of the responding parties to include only the "President of the Treasury Board".

Decision

The applicant's motions were denied. The motions of the Commissioner and TBS were allowed.

Reasons

Issue 1

The sole relief sought as against the Commissioner was a review of its "decision" and an order that the Commissioner disclose to the applicant the information requested. It is abundantly clear from the ATIA and from the jurisprudence of the Federal Court that the Court does not have jurisdiction to review the Commissioner's findings and recommendations pursuant to s. 41 ATIA, and that a motion to strike an application seeking such a review must be granted: Canada (Attorney General) v. Bellemare (2000), 270 N.R. 269 (F.C.A.) at para. 13.

The case law does recognize that the conduct of the Commissioner's investigation remains, in appropriate cases, subject to judicial review under s. 18.1 Federal Court Act. However, in this case, notwithstanding the allegation that the Commissioner acted in bad faith in conducting its investigation, the application seeks only to review the decision of the Commissioner and to obtain communication of the information. Indeed, as the application is also clearly framed as a review of the TBS decision to refuse access pursuant to s. 41 ATIA, judicial review of the Commissioner's investigation or report would serve no useful purpose.

Issue 2

Applying the principles expressed in Karavos v. Toronto (City), [1948] 3 D.L.R. 294 (Ont. C.A.) and Rubin v. Canada (Privy Council), [1994] 2 F.C. 707 (C.A.), a mandamus cannot be issued against the Commissioner to give access to or disclose a document which is the object of a request for access, since there is no "clear, legal right" to have the information disclosed to the applicant by the Commissioner. Any duty of disclosure or of providing access to information under the ATIA is clearly a duty owed by the head of the government institution concerned, not by the Commissioner.

Rule 317 of the Federal Court Rules, 1998 contemplates only the communication of material in the possession of the tribunal "whose order is the subject of the application". Since the application, as it relates to a judicial review of the Commissioner's "decision", is to be struck, it follows that there can be no valid request for communication of any material from the Commissioner under Rule 317.

Issue 3

The sole argument advanced by the applicant was that any right to privacy or non-disclosure established by the ATIA is lost when the party seeking to rely on the right of privacy was acting in bad faith. Without even considering whether the argument is founded in law, it is clear that to order production of material that would otherwise be protected before the alleged bad faith has been proved would be to rob the protection of any practical effect. TBS' request meets the criteria developed in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522. As the TBS has further undertaken to provide access to the confidential material to counsel for the parties upon a proper undertaking by them being signed, the TBS motion should be granted.

Comments

This decision is under appeal.