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Info Source Bulletin Number 28

Canada Post Corporation v. Minister of Public Works and Government Services Canada and Peter Howard

Indexed as: Canada Post Corp. v. Canada (Minister of Public Works and Government Services)

File No.:	T-2117-00^[16]
Reference:	2004 FC 1
Date of decision:	January 6, 2004
Before:	Lemieux J
Sections of ATIA / PA:	Ss. 3, 4, 5, 20(1)(b), 44, 73 Access to Information Act (ATIA)

Abstract

Record "under the control" of a government institution
Minister's dual responsibility as head of department and Minister responsible for Crown corporation not removing record from scope of ATIA
Record in possession of department thereby under its control
Reasons justifying disclosure not required

Issues

Was the document requested under the control of Public Works and Government Services Canada?
Was the Access Coordinator obligated to give reasons for rejecting Canada Post's objections to release?

Facts

A request for access to a report prepared by TD Securities and Dresden-Kleinworth Benson on the Canada Post Mandate Review was made to the Access to Information and Privacy (ATIP) Office of Public Works and Government Services Canada (PWGSC). At the time, the Corporate Implementation Group (CIG), a branch of PWGSC, had physical possession of the document in question and proceeded to transmit it to the ATIP office. The ATIP office gave third party notice to the applicant, Canada Post Corporation (CPC), pursuant to s. 27 of the Access to Information Act. Submissions were made but the ATIP office determined nevertheless that the document should be disclosed with appropriate severances.

CPC argues that the report sought is under the control of Office of the Minister responsible for CPC, which office is not subject to the ATIA. In support of this argument, CPC contends (1) that the Canada Post Corporation Act creates an Office of the Minister responsible for the CPC; (2) notwithstanding the fact that at the time of the request for access the Minister responsible for CPC was also the Minister responsible for PWGSC and thereby exercised dual responsibility, historically that was not always the case; (3) the CIG was assigned by the Minister responsible for CPC to administer all matters relating to CPC and other Crown Corporations; (4) while the CIG is made up of public servants employed by PWGSC, the CIG does not perform any duties relating to the departmental responsibilities of PWGSC; (5) the document is a secret report addressed to the Minister responsible for CPC and (6) documents provided by CPC to the Minister were kept separate from documents relating to the departmental activities of PWGSC.

The respondent, PWGSC, argues that the CIG is a departmental branch of PWGSC responsible for supporting the Deputy Minister in his role as principal policy advisor to the Minister of PWGSC, and that the support provided by the CIG to the Deputy Minister and the Minister of PWGSC forms part of the departmental responsibilities of PWGSC.

Decision

The application for judicial review was dismissed.

Reasons

Issue 1

Justice Lemieux comes to the conclusion that the applicant has failed to establish the existence of an Office of the Minister responsible for Canada Post for the following five reasons:

the applicant failed to establish that such an office was created by legislation or regulation, unlike other offices found in Schedule I of the ATIA;
officials and personnel in CIG were appointed to their positions by the Public Service Commission to postings approved in the Department of Public Works by Treasury Board and whose staff relations under the Public Service Staff Relations Act are within the departmental structure of PWGSC. The CIG could therefore not be said to be exclusively dedicated to the Minister responsible for Canada Post. Justice Lemieux reiterated that it was a fundamental principle that Ministers need to be supported by responsible officials in order to carry out their statutory duties and functions;
the Minister operated through PWGSC's ATIP Office to whom the request was directed, and that office identified CIG as the appropriate branch within PWGSC holding the requested document. CIG is part of this institutional structure for processing access request; it therefore cannot be carved out of the departmental structure of PWGSC;
a deputy ministers in addition to his/her role as manager of the department acts as the principal policy advisor to the Minister by giving advice to the Minister on matters within the Minister's responsibility and authority. That includes advice with respect to a Minister's portfolio which, in the case at bar, includes advice with respect to the CPC;
the Minister is constitutionally responsible for his department as well as for his portfolio for Agencies and Crown Corporations. In terms of the ATIA, this means that he must rely on the support of his departmental officials to discharge his responsibilities under that Act.

Justice Lemieux concludes by relying on the decision of the Federal Court Trial Division in Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.) (aff'd (1995), 60 C.P.R. (3d) 441 (F.C.A.)), that stands for the proposition that control normally means possession. CIG was in possession of the report when the request was made and the document was therefore under the control of PWGSC.

Issue 2

The applicant argues that the ATIP office's decision to disclose should be quashed due to a lack of issuance of reasons, as required in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Justice Lemieux, however, agreed with the respondent's propositions that:

the Baker decision does not stand for the proposition that reasons for decisions are invariably required. Lemieux J. referred to Justice L'Heureux-Dubé's reasons to the effect that "where the decision has important significance for the individual, or where there is a statutory right of appeal, or in other circumstances, some form of reasons should be required". Lemieux J. noted that s. 44 review is a review de novo;
based on Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.), a distinction must be made between a decision to disclose and a decision not to disclose. Since the ATIA requires disclosure, no reasons need be specified in such a case;
3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421 (C.A.) (the Telezone decision) was also distinguished as, unlike the case at bar, the Federal Court of Appeal had dealt, in the Telezone case, with a refusal to disclose and had concluded that Industry Canada had, in fact, provided reasons;
in Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403, the Court determined that generally, if reasons are not required by statute, administrative decision makers have no duty to issue them.

Comments

The appeal filed by Canada Post Corp. against this decision was dismissed (2004 FCA 286). The records at issue were clearly under the control of the Corporate Implementation Group, a departmental branch of the Department of Public Works and Government Services and thus, under the control of that Department.

CPC's leave to appeal to the Supreme Court of Canada was dismissed March 17, 2005.