Annual Report: 2002-2003

B. The Commissioner in the Courts

The Information Commissioner of Canada v. The Attorney General of Canada and Janice Cochrane (Court files A-126-02 and A-127-02)

(See 2001-2002 Annual Report, p. 80 for more details in the proceedings in Trial Division.)

Nature of Proceedings

This matter involved two applications for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, by which the Attorney General asked that two subpoenas duces tecum, issued by the Information Commissioner and directed to the Deputy Minister of Citizenship and Immigration Canada (CIC), be set aside.

Factual Background

This matter arises from a complaint in relation to CIC's decision to extend the period for responding to a series of access requests to three years. The Information Commissioner reported the results of his investigation, concluding that the three-year period of extension claimed by CIC was unreasonable such that the complaint was well founded.

After categorizing the requested records into two annexes, the Information Commissioner ordered that documents listed in one annex be produced by November 6, 2000, and those listed in the second be produced one month later. The Information Commissioner likewise stated his intention to issue a subpoena duces tecum which would compel production of the records in the event that CIC refused to comply.

Thereafter, upon being advised of CIC's intention not to comply, the Information Commissioner proceeded to subpoena the records in the form of an "Order with Respect to Production of Records". In turn, CIC stated that it would commence an application to have this subpoena set aside on the basis that the Information Commissioner lacked jurisdiction to issue it.

In response, the Information Commissioner self-initiated a complaint on the basis that that CIC's three-year extension of time constituted a deemed refusal. He then issued a second subpoena (Order with respect to Production of Records) on the deputy minister in relation to the records in dispute.

In the within application for judicial review, the Attorney General sought to have the two subpoenas issued by the Information Commissioner set aside on the basis that the Information Commissioner had exceeded his jurisdiction.

Issues Before the Court

What is the appropriate standard of review with respect to the Information Commissioner's decision to proceed with an investigation?

Did the Information Commissioner exceed his jurisdiction when issuing a subpoena duces tecum subsequent to having reported the results of his investigation to the head of the institution but not to the complainant?

Does an "unreasonable extension" of time constitute a "deemed refusal" thereby entitling the Information Commissioner to self-initiate a new complaint by which he may issue a second subpoena duces tecum?

Are the subpoenas to produce documents, as issued by the Information Commissioner in the circumstances of this case, an abuse of process?

Findings

The Applications Judge, Kelen J., held that the appropriate standard of review applicable to the Information Commissioner's decision to investigate a complaint is that of "correctness" (paragraph 17). He went on to decide that the Information Commissioner is without jurisdiction to issue an order of production after the issuance of a report of the results of his investigation to the head of the institution.

With respect to the commissioner's decision to initiate an investigation on the basis that an unreasonable extension could constitute a "deemed refusal" of access, Kelen J. concluded that, even if the response period is extended for an unreasonable period of time, the Act does not deem the extension to be a "refusal". It is only if and when an extended period lapses with no response given to the requester, according to Justice Kelen, that a "deemed refusal" arises:

"A 'deemed refusal' is when the department fails to give access to the record within the time limits set out in the Act, i.e. either 30 days as provided in section 7 or an extended time limit under section 9. In my opinion, in this case, the extended time limit has not expired so that there can be no 'deemed refusal' to give access. Under the Act, there is no provision for the respondent to deem an unreasonable extension of time as a refusal." (paragraph 25)

Consequently, the court held that it was not proper for the Information Commissioner to:

• initiate a new complaint and launch a new investigation in relation to a matter in which he had already concluded an investigation;
• use his subpoena power to summon documents which CIC stated it could not process on an immediate basis.

Judicial Outcome

The Trial Judge allowed the Attorney General's two applications for judicial review and ordered that the two subpoenas duces tecum issued by the Information Commissioner be set aside.

Action Taken

Subsequently, the Information Commissioner filed a Notice of Appeal on March 6, 2002. This appeal will be heard on May 14, 2003, and the result will be reported in next year's annual report.

The Information Commissioner of Canada v. The Attorney General of Canada and Bruce Hartley (Court files A-82-02 and A-174-02)

Nature of Proceedings

Appeal of a motion

Factual Background

(See 2001-2002 Annual Report, p. 88-90 and 2000-2001 Annual Report, p. 116-117 for more details.)

In this case, the Information Commissioner has appealed the decision of Mr. Justice McKeown dated February 1, 2002, in which he found that the Federal Court has the jurisdiction to order that transcripts of evidence given to the Information Commissioner during his confidential investigations be filed with the court on a confidential basis. The transcripts were ordered to be filed in four of the seven consolidated applications for judicial review.

Issues Before the Court

In his Notice of Appeal, the Information Commissioner raises the following issues :

1. Did the Motions Judge err in fact and in law when he ordered that the confidential transcripts be filed in court pursuant to rule 318 of the Federal Court Rules, 1998?
2. If not, did the Motions Judge err in fact and in law in ordering copies of the entire confidential transcripts, and not portions thereof, to be filed in court?

Findings

The appeal has not yet been heard. The result will be reported next year.

The Information Commissioner of Canada v. The Executive Director of the Canadian Transportation Accident Investigation and Safety Board, (T-465-01, T-650-02, T-888-02 and T-889-02) Federal Court Trial Division

(See Annual Report 2001-2002, p. 87 and Annual Report 2000-2001, p. 116 for more details.)

During the reporting year, following the issuance of recommendations in three unrelated investigations, the Information Commissioner filed three additional applications for review on the same issue, i.e. the disclosure of audiotapes and transcripts of conversations between a pilot and air traffic controllers.

On November 15, 2002, the Information Commissioner filed a notice of constitutional question and a motion for leave to amend the Notices of Application. The constitutional issue relates to the validity of a section of the Radio Communications Act purporting to limit the disclosure of air traffic control communications. The Attorney General of Canada confirmed his participation on the constitutional issue.

The case will continue before the Trial Division and results will be reported in next year's annual report.