Info Source Bulletin Number 31A - Court Case Summaries

3430901 Canada Inc. and Telezone Inc. v. Canada

(Minister of Industry)

[2002] 1 F.C. 421

Federal Court of Appeal

Date of Decision: August 29, 2001

Sections(s): Sections 21(1), (2), 48 and 49 ATIA

Origin

Appeal from the Federal Court decision dismissing application for judicial review.

Issues

Were the weightings initially assigned to the criteria on which the discretionary award of the licensees was based, properly characterised as "advice or recommendations", or as the factual basis of the conclusions of the officials who assessed the applications?
When the Minister rejected some of those weightings and directed a reassessment in the light of the weightings approved by the Minister, did those final weightings cease to be "advice or recommendations" and become, instead, the basis or reasons for the decision?
If the weightings were properly characterised at all material times as "advice or recommendations", was the burden of establishing that the institutional head lawfully exercised the statutory discretion to disclose them borne by the person seeking disclosure or by the head of the government institution?

Facts

In response to a general invitation, Telezone Inc. and its successor, 3430901 Canada Inc., applied to the Minister of Industry for a licence to provide personal communications services, principally wireless telephone services. Four licences were issued, but not to Telezone.

Telezone made an ATIA request to Industry Canada to disclose information about the above decision-making process. The request was in large part refused, on the ground that the material sought was exempted under section 21 ATIA.

Telezone complained to the Information Commissioner (IC) who investigated and recommended that most of the information and records sought by Telezone should be disclosed.

The Minister then made further disclosures but continued to withhold some of the material requested, particularly that relating to the weight assigned to the various criteria by which licence applications had been assessed.

Both Telezone and the IC applied for judicial review. The Federal Court (Trial Division) dismissed both applications.

Decision

The Federal Court of Appeal also dismissed both appeals.

Reasons

Issue 1: Advice and recommendations

The Court stated that statutory exemptions need to be interpreted in light of both the purpose of the Act and the countervailing values that underlie the exemptions relied on, especially, in regard to para. 21(1)(a), the preservation of a full and frank flow of interchanges among public officials participating in the decision-making process.

In the Court's opinion, the Minister's interpretation of the scope of the statutory exemption to the duty to disclose was reviewable on a standard of correctness. The FCA referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

The question now is: Were the weightings initially assigned to the criteria on which the discretionary award of the licences was based, properly characterised as "advice and recommendations", or as the factual basis of the conclusions of the officials who assessed the applications?

The Court expressed the opinion that by exempting "advice and recommendations" from disclosure, Parliament must have intended the former to have a broader meaning than the latter, otherwise it would be redundant.

The Court offered the following definition of the word "advice":

I would include within the word "advice", an expression of opinion on policy-related matters, but exclude information of a largely factual nature […]

Considering each type of documents in issue, the Court opined that:

Weightings of the working group

The content of the weightings of the working group is predominantly normative rather than factual, bringing them under the rationales underlying para. 21(1)(a). In the Court's view, this conclusion is not affected by the fact that the working group was implicitly, rather then expressly, advising the Minister.r>
The Minister was correct to treat as falling within para. 21(1)(a) any records or parts of records emanating from the working group and selection panel that contain the percentages ascribed by the working group to the various evaluative criteria, the descriptions of the criteria that have not been disclosed by the Minister, and the numerical scoring of Telezone's application.
Uncommunicated advice

A record otherwise falling within the category of "advice", still contains advice even if it was only intended to assist participants in the decision-making process to formulate the advice or recommendations that they would ultimately give to the final decision-maker. The Court found that records containing personal notes made by a member of the working group in preparation for the meeting of the group contained "advice" as they formed an integral part of the process by which policy advice was developed.
Inconclusive advice

By using both words "advice and recommendations" in para. 21(1)(a), Parliament clearly indicated that records that do not contain " recommendations" may still fall within the exemption.r>
Therefore, a document to the Minister stating that something needs to be decided, identifying the most salient aspects of an application, containing policy options, implicitly contains the writer's view of what the Minister should do or how the Minister should view a matter. All are normative in nature and are an integral part of an institutional decision-making process. Paragraph 21(1)(a) could be available.
Final weightings

The final weightings were prepared for the purpose of assisting the Minister to make a decision and this information is undoubtedly "advice" pursuant to para. 21(1)(a).

Issue 2: Interpretation and application of para. 21(2)(a)

When the Minister rejected some of those weightings and directed a reassessment in the light of the weightings approved by the Minister, did those final weightings cease to be "advice and recommendations" and become, instead, the basis or reasons for the decision?

In para. 21(2)(a), Parliament has expressly provided that a record otherwise falling within para. 21(1)(a) must be disclosed if it contains a statement of reasons for a decision that affects the rights of a person. It is not open to the courts to expend the scope of para. 21(2)(a) by applying it to a document that contains a statement of the reasons for a discretionary decision that does not affect the rights of a person.

Telezone had no legal right to be awarded a discretionary licence, it therefore can not be said that it had any rights that were adversely affected by the decision.

The Court added further that para. 21(2)(a) does not remove from the ambit of para. 21(1)(a) a record otherwise exempt from disclosure because it contains "advice".

The information was prepared for the purpose of assisting the Minister to make a decision and was advice pursuant to para. 21(1)(a). The Court confirmed the position of the Trial Division.

Issue 3: Review and remedy of exercise of Minister's discretion

The Court of Appeal, relying on Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, agreed with the Trial Division's conclusion that the burden of proof was on the appellants to establish that the Minister had failed to exercise according to law the statutory discretion to disclose the documents containing advice and recommendations within the meaning of para. 21(1)(a).

Since the ATIA leaves the disclosure of records falling within para. 21(1)(a) to the discretion of the Minister, and imposes no express limitations on its exercise, it is not for the Court to substitute its view for that of the Minister on how the discretion should be exercised. The Court referred to Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.), Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (F.C.T.D.) and Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.

However, the Court relying on Baker (supra) considers the Minister's exercise of discretion under para. 21(1)(a) subject to review for bad faith, breach of natural justice, relevancy of the considerations relied on by the decision-maker as these three criteria are described in the Supreme Court decision in Dagg but as well for unreasonableness simpliciter.

The Court before examining the reasons for the Minister's refusal and the sufficiency of these reasons said the following:

I am willing to assume for the purpose of this appeal, but need not decide, that Industry Canada was obliged to provide reasons for its discretionary refusal to disclose the documents requested by Telezone and the Information Commissioner. The question is whether that duty has been discharged.

In view of the flexibility of the content of the duty to provide reasons that the Court mandated in Baker (supra), the FCA accepted internal documents of Industry Canada as well as documents written by departmental officers to Telezone and the IC as reasons for the refusal.

Finally, the Court is prepared to infer from the materials and from ongoing disclosures that the respondent balanced the competing interests. The reasons for the refusal to disclose the exempt documents were adequate and the appellants had failed to establish that the Minister's discretion has been exercised unlawfully.

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