Annual Report: 2002-2003

B. The Commissioner in the Courts

II. Cases in Progress

Babcock v. Canada (Attorney General) [2002] S.C.J. No. 58 (S.C.C.) Supreme Court of Canada (on Appeal from the Court of Appeal for British Columbia)

McLachlin C.J. and Justices L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel. The majority's reasons were provided by McLachlin C.J. L'Heureux-Dubé J., July 11, 2002.

(See Annual Report 2001-2002, p. 90 for further details.)

Nature of Proceedings

This was an appeal from a decision rendered by the British Columbia Court of Appeal, reversing the decision of the Motions Judge which dismissed an Application for production brought pursuant to B.C.'s Rules of Civil Procedure.

Factual Background/Issues/Outcome

(See pages 13 to 15 for details.)

Rubin v. Canada (Minister of Health) 2003 FCA 37, Court File No. A-575-01, Federal Court of Appeal

Justices Rothstein, Sexton and Evans, January 23, 2003

Nature of Proceedings

An appeal of an order dismissing an application pursuant to section 41 Access to Information Act.

Factual Background

The requester sought access to a review conducted by Health Canada on the safety of calcium channel blockers. He was provided with severed version of a report on the safety of these drugs. The requester complained to the Information Commissioner who proceeded to investigate. Initially, Health Canada relied on paragraphs 13(1)(a) and 20(1)(b) and (c) of the Act; however, during the investigation, Health Canada withdrew its reliance on paragraph 13(1)(a). In his letter of finding, the Information Commissioner concluded that Health Canada's reliance on subsection 20(1) was justified. A copy of this letter was provided to both the requester and Health Canada. Upon receipt of the commissioner's finding, the requester brought an application for judicial review of the decision of the Minister of Health pursuant to section 41 of the Act.

After the application for judicial review was filed, the requester was informed by Health Canada that it intended to rely on subsection 13(1) to exclude a portion of the record.

The Applications Judge concluded that paragraph 20(1)(b) had been properly relied on to exempt the severed portions of the requested record. He also found that there was no evidence that Health Canada had exercised its discretion to release documents concerning issues of public interest improperly. Finally, the Applications Judge concluded that Health Canada was precluded from relying on subsection 13(1) to justify non-disclosure because that section had been withdrawn during the investigation of the Information Commissioner.

The requester appealed the decision of the Applications Judge.

Issues Before the Court

The appellant raised four main issues:

1. The Applications Judge erred in not ordering the release of the record to which the government had applied paragraph 13(1)(a) once he had determined that the government was barred from relying on that section;
2. The judge erred in finding that paragraph 20(1)(b) was applicable given the failure of a third party to respond to a second inquiry about the confidentiality of a portion of the record;
3. The judge erred in finding paragraph 20(1)(b) was applicable in the absence of any attempt by the government institution to independently verify if information over which a third party asserts confidentiality is in the public domain; and
4. The judge erred in his interpretation of subsection 20(6) of the Act, more specifically, he erred by failing to require the government institution to apply a transparent and objective standard.

The respondent, in his memorandum, asked the Court of Appeal to decide that Health Canada was not barred from relying on paragraph 13(1)(a) of the Act even though it had withdrawn its reliance on that section before the Information Commissioner during his investigation.

Action Taken by the Information Commissioner

Upon reviewing the respondent's memorandum, the Information Commissioner sought and was granted leave to intervene on the following issue which in his opinion had broad implications for the administration of the Act as a whole:

Did the Applications Judge err in law in holding that a government institution could not invoke a mandatory exemption following the completion of the commissioner's investigation of a complaint with respect to the refusal of access to records?

Findings

The Federal Court of Appeal delivered its reasons from the bench. It held that a third party need not respond to subsequent inquiries about confidentiality from a government institution to maintain its initial claim of confidentiality. The court said "nothing in the Act specifies how, or how many times, a third party must assert confidentiality in order that it be maintained. "

The court agreed with the appellant that the burden is on a government institution to provide proof that there has not been public disclosure of the information. However, the court concluded that the determination that a government institution has satisfied the burden placed on it is a question of mixed fact and law and that an Applications Judge is entitled to considerable judicial deference on this point. The court held: "barring a palpable and overriding error, this court will not interfere with a finding of mixed fact and law by a Trial Division Judge under the Access to Information Act".

In answer to the appellant's argument that the exercise of discretion to disclose confidential information in the public interest under subsection 20(6) must be done objectively, the court found that "there is no authority for such an interpretation of subsection 20(6)". The court continued: "subsection 20(6) confers on the head of the government institution the authority to exercise his or her discretion to disclose, inter alia, otherwise confidential information if such disclosure would be in the public interest as it relates to public health. Nothing in subsection 20(6) expresses or implies specific conditions or requirements that attach to or fetter that exercise of discretion". Thus, the courts should not interfere with the exercise of such a discretion unless there is evidence that the head of the government institution took irrelevant considerations into account or failed to comply with the principles of natural justice.

Finally, the court concluded that Health Canada had never ceased to rely on paragraph 20(1)(b) despite its attempt to apply subsection 13(1) to certain information. The issue surrounding the application of section 13 was, consequently, not commented on.

Judicial Outcome

The appeal was dismissed without costs.

Canada Tobacco Manufacturer's Council A and B (Confidential). v. The Minister of National Revenue, the Information Commissioner of Canada and Robert Cunningham (T-877-00) Federal Court Trial Division

(See Annual Report 2001-2002, p. 9 and 2000-2001 Annual Report, p. 119 for further details.)

The within application was scheduled to be heard on February 4, 2003. However, at the commencement of the hearing, the Applications Judge, Mr. Justice O'Keefe, advised the parties of his long-time friendship with one of the applicant's supporting affiants. Recognizing that the same could give rise to the appearance of his having a conflict of interest in the proceedings, Mr. Justice O'Keefe then invited the parties to request that he decline to hear the matter.

Given the parties' reliance upon conflicting evidence, the credibility of the affiants would clearly be an issue. In these circumstances, despite that nearly two years had passed since the date of the requisition for the hearing, the potential appearance of the judge's conflict of interest was too significant to be ignored. Accordingly, the Information Commissioner was required to ask that Mr. Justice O'Keefe excuse himself from the proceedings. Accordingly, the hearing was adjourned sine die and has, subsequently, been scheduled to be heard over the period of a day-and-a half commencing June 2, 2003.