Annual Report: 2003-2004

B. The Commissioner in the Courts

The Information Commissioner of Canada v. The Attorney General of Canada and Janice Cochrane
(SCC 29892) Supreme Court of Canada
(See 2001-2002 Annual Report p. 80 and Annual Report 2002-2003 p. 86 for details of the proceedings in the Trial and Appeal Divisions)

This was a motion for leave to appeal to the Supreme Court of Canada by the Information Commissioner. The commissioner wished to appeal a decision of the Federal Court of Appeal dismissing the commissioner’s appeal of a decision rendered in the context of applications under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in which two subpoenas duces tecum issued by the commissioner were quashed on the basis that the commissioner lacked jurisdiction.

In reviews brought by the former Deputy Minister of Citizenship and Immigration (CIC) pursuant to section 18.1 of the Federal Court Act, the Trial Judge ruled that the commissioner had exceeded his jurisdiction when, upon concluding that a three-year extension of time claimed by CIC to respond to a number of access requests was unreasonable, the commissioner issued two subpoenas duces tecum as part of an investigation of a "deemed refusal". The Trial Judge reasoned that, no matter how unreasonable an extension of time may be, an extension cannot constitute a deemed refusal to provide access, nor can the Information Commissioner self-initiate a complaint and investigation under subsection 30(3) of the Access to Information Act, until the extension of time elapses.

The Information Commissioner filed a Notice of Appeal of the Trial Judge’s ruling. In advance of the hearing before the Court of Appeal, all the access requests were answered. As a result, the Crown brought a motion at the commencement of the hearing of the appeal requesting that the appeals be dismissed as being moot. The Crown argued that, because the access requests had been processed and responded to at the time of the appeal, there was no longer a live controversy between the parties.

The Information Commissioner disagreed. He argued that the Trial Judge’s determination contained a declaration that unreasonable extensions of time cannot constitute deemed refusals under the Access to Information Act, thereby preventing the commissioner from self-initiating a complaint and investigation and depriving requesters of any effective recourse or remedy for unreasonably long extensions of time to answer access requests. It was argued by the commissioner that this issue of statutory interpretation remains a live controversy regardless of whether in the instant case the requests were processed prior to the hearing of the appeal.

The Court of Appeal concluded that "the underlying issue" involved the validity of the two subpoenas and that this issue was essentially fact driven. Noting that the requests had been answered, the court held that there was no longer any lis between the parties. On this basis, the court granted the Crown’s motion from the bench, dismissing the appeals on the basis of mootness. No order was made as to costs.

On January 29, 2004, the Information Commissioner’s leave application was denied. As is its practice, the court did not give reasons for the refusal.

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-891-01, T-892-01, T-895-01, T-896-01, T-924-01, 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)
(See Annual Report 2001-2002 p. 88 and Annual Report 2002-2003 p. 89 for more
details)

Decisions in these cases have been given by Justice Dawson of the Federal Court Trial Division. A review of her decisions can be found at pages 9 to 13.

The Attorney General of Canada and Mr. Ian Wilson v. The Information Commissioner of Canada, (Court file T-661-04)

In this application, the applicants challenged the validity of the subpoena issued by the Deputy Information Commissioner to Mr. Wilson, the National Archivist. After discussions, the matter was resolved upon the appearance of the National Archivist with his counsel before the Deputy Information Commissioner. A Notice of Discontinuance was filed shortly thereafter.

The Attorney General of Canada and M. Morris v. The Information Commissioner of Canada, (Court file T-887-01) (See 2001-2002 Annual Report p. 88-90 for details of the proceedings in Trial Division)

This was an Application for Review brought pursuant to section 18.1 of the Federal Court Act by a witness asking for a declaration that the Information Commissioner lacks jurisdiction to ask certain questions about the handling of access requests for the agendas of a previous Minister of National Defence.

This was one of 27 Applications for Review filed against the Information Commissioner in investigations concerning records held in the offices of the Prime Minister and/or ministers. This particular application arose out of the commissioner’s investigation of the head of the department of National Defence’s refusal to provide access to records concerning "M-5 meetings".

The principle issue raised in this application was whether the Information Commissioner, or his delegate, has the jurisdiction to ask a witness particular questions in the context of his investigation into an access refusal and to order that the witness answer the same under oath.

The within application for review was discontinued on July 17, 2003.

The Information Commissioner of Canada v. The President of the Business Development Bank of Canada (T-2342-03) Federal Court

This was an application by the Information Commissioner for judicial review under section 42 of the Access to Information Act of a refusal, by the President of the Business Development Bank (BDC), to release records regarding fees and honorariums of legal, financial communications, or other advisors incurred by the BDC and in the conduct of BDC’s legal proceedings against François Beaudoin, the former President of the BDC. In refusing disclosure, the president relied on section 23 of the Act, which authorizes secrecy for information which qualifies for solicitor-client privilege.

In the fall of 1999, the BDC and François Beaudoin finalized a severance package. On November 3, 2000, François Beaudoin filed a "Requête en homologation d’une transaction" seeking to compel the BDC to respect the transaction signed. The judicial saga ended on February 6, 2004, with the judgment of Mr. Justice André Denis of the Quebec Superior Court. From the beginning of the proceedings, the story was publicized and reported in the newspapers. On April 9, 2001, a journalist requested access to records regarding fees or honorariums of legal, financial communications, or other advisors incurred by the BDC in relation to the proceedings against Mr. Beaudoin. Relying on section 23 of the Act (the solicitor-client privilege exemption), the president refused disclosure. After investigating the resulting complaint, the Information Commissioner recommended disclosure of the total amounts paid to lawyers and other advisors. The BDC refused to follow the commissioner’s recommendation. On December 10, 2003, the Information Commissioner filed an Application for Judicial Review of the president’s decision. During the month of February, the commissioner filed his affidavit evidence in support of the application.

On Friday, March 5, 2004, the BDC decided not to defend its refusal in court and released the withheld records, showing that the proceedings against François Beaudoin resulted in a total sum of 4.3 million dollars spent on legal fees, disbursements and fees paid to experts. The application for judicial review was discontinued thereafter.