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Info Source Bulletin Number 29
Thomas Jusdanis and Minister of National Revenue
Indexed as: Jusdanis v. Canada
(Minister of National Revenue)
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File No.: |
T-1600-04 |
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Reference: |
2005 FC 541 |
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Date of decision: |
Nadon, Desjardins, Pelletier JJ.A. |
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Before: |
Beaudry J. |
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Sections of ATIA / PA: |
Ss. 16(1)(c), 19(1), 24(1) and 41 Access to Information Act (ATIA) |
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Other statutes: |
S. 18.1 Federal Courts Act; Rule 120, Federal Courts Rules |
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Abstract
- Only party who has been refused access under ATIA can bring an application for judicial review of the matter
- Officer of company not party to whom access was refused therefore without standing to file application for judicial review
Issue
Was the applicant the appropriate party to file the application for judicial review brought under s. 18.1 of the Federal Courts Act against a refusal to disclose certain records under the ATIA
Facts
The preliminary question at issue which relates to the standing of the applicant is raised in the context of an application for judicial review brought under s. 18.1 of the Federal Courts Act against a refusal by the Minister of National Revenue (MNR) to disclose certain records.
Mr. Jusdanis (the applicant) submitted several access to information requests to Canada Customs and Revenue Agency (CCRA) on behalf of Found Money Inc. CCRA provided some information but exempted other pursuant to subss. 19(1) and 24(1) and para. 16(1)(c) of the ATIA. The applicant, on behalf of Found Money Inc., complained to the Office of the Information Commissioner of Canada. As a result, CCRA provided additional information but removed other information and replaced it with certain notations referring to the same exemptions.
The applicant and Found Money Inc. subsequently filed a joint notice of application for judicial review pursuant to s. 18.1 of the Federal Courts Act against the refusal of CCRA to disclose the records sought. Found Money Inc. then brought a motion for leave to be represented by its corporate officer, Mr. Jusdanis, in this proceeding, rather than by a solicitor. Prothonotary Milczynski dismissed the motion by order dated September 13, 2004 on the grounds that the case did not represent special circumstances that would warrant divergence from the fundamental principle set out in Rule 120 of the Federal Courts Rules which provides that a corporation must be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member.
On December 22, 2204, the applicant served and filed an application record in his name solely. On January 10, 2005, the MNR filed a motion to strike Mr. Jusdanis as a party to the proceeding. Prothonotary Lafrenière noted that the affidavit filed by Mr. Jusdanis was ambiguous when referring to the request made pursuant to the Access to Information Act in April 2003 because he did not identify who made the request.
Prothonotary Lafrenière stated that it was open to Mr. Jusdanis to argue that he had standing to file the complaints with the Information Commissioner and to bring the application for judicial review. In his decision, he declined the MNR's motion to strike Mr. Jusdanis as a party but left the possibility for the MNR to take the position at the hearing of the application for judicial review that Found Money Inc. had in fact made the request, and that Mr. Jusdanis therefore did not have standing to bring the application for review. However, since Found Money Inc. had failed to appoint a solicitor and file its record within the time limits, Prothonotary Lafrenière decided to strike Found Money Inc. as a party to the proceeding.
Decision
The applicant was not entitled under s. 41 ATIA to file an application for judicial review. The application was therefore dismissed.
Reasons
Section 41 of the ATIA provides that "any person who has been refused access to a record requested under this Act or a part thereof may [...] apply to the Court for a review of the matter [...]". The French version provides that « La personne qui s'est vu refuser communication totale ou partielle d'un document [...].».In the present case, the request to access was sent by Mr. Jusdanis on behalf of Found Money Inc.
Thus, as the "requester" is Found Money Inc., the person who has been refused access to information is also Found Money Inc. Although Mr. Jusdanis was considered the appropriate official to receive the information on behalf of Found Money Inc. because of his status of director of the company, it does not mean that he possessed the appropriate standing to file an application for judicial review. Thus, the Court concluded that Mr. Jusdanis was not entitled, pursuant to s. 41 of the ATIA, to file an application for judicial review in his own behalf.
The application for judicial review under s. 18.1 Federal Courts Act was therefore dismissed.
