Annual Report: 2002-2003

B. The Commissioner in the Courts

II. Cases in Progress

The Information Commissioner of Canada v. The Attorney General of Canada and Brigadier General Ross, (T-656-01, T-814-01 and T-1714-01)

As a result of the Anti-Terrorism Act, S.C. 2001, c.41, proclaimed in force on December 18, 2001, the respondents fully complied with the Information Commissioner's subpoenas duces tecum, dated August 9, 2001, and August 11, 2000, and order for production of documents, dated April 26, 2001, relating to all pages being the subject of objections made under sections 37 and 38 of the Canada Evidence Act. Accordingly, these applications for review were discontinued on May 29, 2002.

The Attorney General of Canada and A. Eggleton v. Information Commissioner of Canada, (T-924-01) Federal Court Trial Division

The Information Commissioner advised the applicants on November 8, 2001, that he was satisfied that the Honourable Art C. Eggleton had complied with the subpoena duces tecum dated April 6, 2001. As a result, this application for judicial review in respect of the subpoena duces tecum was discontinued on February 28, 2002.

The Attorney General of Canada et al. v. The Information Commissioner of Canada

(T-582-01, T-606-01, T-684-01, T-763-01, T-792-01, T-801-01, T-877-01, T-878-01, T-880-01, T-883-01, T-887-01, T-891-01, T-892-01, T-895-01, T-896-01, T-1047-01, T-1049-01, T-1083-01, T-1448-01, T-1909-01, T-1910-01, T-1254-01, T-1255-01, T-1640-00, T-1641-00, T-2070-01) Federal Court Trial Division

(See Annual Report 2001-2002, p. 88 for further details.)

Stephen Byers v. The Hon. John M. Reid (The Information Commissioner of Canada) and Others, Court file T-1221-02 Federal Court Trial Division

Nature of Proceedings

This matter involves an application for review pursuant to section 41 of the Access to Information Act and section 18.1 of the Federal Court Act in relation to: a) the Treasury Board Secretariat's refusal to provide access to portions of requested records based on sub-paragraphs 69(3)(b)(i) and (ii) and, b) the Information Commissioner's "decision" to accept the Treasury Board Secretariat's refusal.

Factual Background

On July 30, 2002, Mr. Byer commenced an application pursuant to section 41 of the Access to Information Act and section 18.1 of the Federal Court Act for judicial review: a) of the Information Commissioner's "decision" to accept the decision of the Treasury Board Secretariat (TBS) to refuse him access to portions of requested records; and b) an order in mandamus compelling both TBS and the Information Commissioner to provide him with the impugned records. The Notice of Application contained a request, pursuant to Rule 317 of the Federal Court Rules, for materials in the possession of the Information Commissioner.

On August 21, 2002, the Information Commissioner filed an objection to the applicant's request for material. Likewise, the Information Commissioner brought a motion to strike the application, pursuant to Rule 221, on the basis that it disclosed no reasonable cause of action. Alternatively, pursuant to Rule 302, the Information Commissioner sought to have the application struck, on the basis that an application for judicial review ought to be limited to a single order in respect of which relief is sought. In the further alternative, the Information Commissioner requested an order directing that the matter as against the Information Commissioner, proceed to mediation.

Issues Before the Court

1. Was the application for review as against the Information Commissioner bereft of any chance of success?
2. Was the application in breach of Rule 302 in respect of the number of orders sought
3. Was the application as against the Information Commissioner an appropriate case to proceed to dispute resolution conference?

Findings

The Information Commissioner maintained that the Notice of Application was bereft of any chance of success, as the jurisprudence makes clear that section 41 of the Access to Information Act does not provide for a review of the Information Commissioner's recommendations as contained in a report provided to a complainant in accordance with subsection 37(2) of the Access Act. Insofar as the application was brought pursuant to section 18.1 of the Federal Court Act, the Information Commissioner maintained that there was, likewise, no chance of success in obtaining the requested relief as:

(1)	section 64 prohibits the Information Commissioner from disclosing information for which a government institution would be authorized to refuse to disclose; and
(2)	the Information Commissioner is not the head of a government institution with control of the impugned records, such that the applicant has no clear legal right to compel him to provide the same and the prerequisites for mandamus could not be met.

Finally, the Information Commissioner took the position that the applicant's allegations of bad faith could not improve a claim for mandamus.

The applicant was in agreement with the Information Commissioner's interpretation of the foregoing provisions of the Access to Information Act and Federal Court Act. However, he argued that such an interpretation was only applicable or appropriate in "normal" circumstances, that is, where there were no allegations of bad faith.

The applicant argued that given the position taken by the Information Commissioner in Canada (Information Commissioner) v. Canada (Minister of Environment), 2001 FCT 277 (Fed. T.D.), as compared to that adopted in the Information Commissioner's subsection 37(2) report in the within case, bad faith was established on the face of the record. He argued that the Information Commissioner has provided an insufficient explanation, if not, no explanation, which would justify the diametrically opposed positions adopted.

The applicant, further, alluded to the fact that the Office of the Information Commissioner falls within the purview of the Ministry of Justice, and that this compromises the integrity and independence of the Information Commissioner's investigations. Finally, he maintained that the Office of the Information Commissioner's bias stems from the fact that he is involved in concurrent litigation with the Attorney General wherein he requires the impugned records to "prove his case" regarding ex gratia payments.

Judicial Outcome

By order dated October 15, 2002, the matter has been referred to a dispute resolution conference. The outcome will be reported in next year's report.

Mertie Anne Beatty et al., v. The Chief Statistician et al., Court File No. T-178-02 Federal Court Trial Division

(See Annual Report 2001-2002 for further details.)

Nature of Proceedings

This was an application for judicial review pursuant to section 18.1 of the Federal Court Act, in respect of the Chief Statistician to transfer possession and control of the Nominal Returns and Schedules of the 1906 Census of the Provinces of Manitoba, Saskatchewan and Alberta, and a microfilm thereof, to the National Archivist forthwith without condition; in the alternative, the failure of the National Archivist to make this information available to the public for research purposes.

Factual Background

The applicants were a group of historians and genealogists who applied to the Federal Court for an order compelling the Chief Statistician to transfer the nominal returns and schedules of the 1906 Census of the Provinces of Manitoba, Saskatchewan and Alberta to the National Archivist, and further and in the alternative, for an order directing, or alternatively permitting, the National Archivist to make this information available to the public for research purposes.

The 1906 Census was conducted in the provinces of Manitoba, Saskatchewan and Alberta. The census contained personal questions about the respondent, including age, religion, country of birth, location and types and amount of livestock. The National Archivist of Canada determined that the Nominal Returns and Schedules of the 1906 Census of Manitoba, Saskatchewan and Alberta were documents of historical importance to the nation and, by letter dated November 16, 1999, formally requested that the Chief Statistician transfer the individual census records for the 1906 Census to the National Archives of Canada. By letter dated December 22, 1999, the Chief Statistician of Canada refused the National Archivist's request on the basis that there were legal impediments to such a transfer.

On February 5, 2002, the applicants filed a Notice of Application naming as respondents the Chief Statistician, the Attorney General of Canada, the National Archivist, the Privacy Commissioner and the Information Commissioner of Canada.

On May 13, 2002, the Information Commissioner brought a motion to be removed as party from the proceeding. On May 21, 2002, considering the consent of all parties, the court ordered that the Information Commissioner be struck out as a party respondent.

On January 24, 2003, Allan Rock and Sheila Copps announced that the 1906 Census records were now publicly available at the National Archives of Canada. (See pages 19 to 21 for related details.)