Annual Report: 2003-2004

B. The Commissioner in the Courts

Shawn Bruce Cliche v. Royal Canadian Mounted Police and Information Commissioner, (T-0059-04) Federal Court

The RCMP provided a response to the access requester on November 24, 2003. The RCMP refused to disclose portions of the requested records by relying upon sections 13 and 16 of the Access to Information Act.

The requester subsequently brought an Application for Review against the RCMP and the Information Commissioner pursuant to section 41 of the Act. The Act requires that such a review be undertaken after a complaint against the government institution’s refusal has been filed with the Information Commissioner and the results of the investigation of the complaint by the Information Commissioner have been reported to the complainant. No such complaint has been filed and no investigation was ever conducted by the Information Commissioner regarding the application of these exemptions by the RCMP. Consequently, the Application for Judicial Review could not stand. As a result, the access requester filed a Notice of Discontinuance on February 17, 2003.

Daniel Martin Bellemare v. The Attorney General of Canada and the Information Commissioner of Canada, (T-1073-99) Federal Court, (A-443-03) Federal Court of Appeal

On June 21, 1999, Daniel Martin Bellemare applied for judicial review of two decisions of the Information Commissioner pursuant to section 41 of the Access to Information Act.

Before the application was heard, the Attorney General of Canada brought a motion to have it struck out as it was not filed within the prescribed timeline. The Attorney General’s motion was granted in part by Pinard J., of the Federal Court Trial Division.

The Attorney General successfully appealed Justice Pinard’s decision before the Federal Court of Appeal. The Information Commissioner intervened at this stage and joined the Attorney General in arguing that the Application for Review cannot proceed as it was directed against the decisions of the Information Commissioner, which are not open to judicial review under section 41 of the Access to Information Act. Noël J.A., writing for the court, held that section 41 does not provide a recourse against the Information Commissioner, but against the government institution’s refusal. The application was entirely struck by the Federal Court of Appeal and costs were awarded to the Attorney General before the Trial and Appeal Divisions. In its judgment issued on November 30, 2002, the Federal Court of Appeal further stated that the Information Commissioner shall bear his own costs as well as the disbursements of the respondent, Mr. Bellemare, resulting from his intervention.

On May 16, 2003, Assessment Officer Michelle Lamy issued two cost certificates for the Attorney General, totaling $4,659.60. The applicant sought a review of that assessment before the Trial Division, arguing that the May 9, 2000, order of Mr. Justice Décary, wherein the commissioner’s motion to intervene was granted, should prevail over the direction given by the Federal Court of Appeal in its judgment of November 30, 2002. This order provides that the commissioner is "liable to the respondent, Bellemare, for the costs of the appeal and of this motion in any event of the appeal".

Mr. Bellemare’s review before the Trial Division was unsuccessful. Mr. Justice Blanchard held that Mr. Bellemare’s argument is without merit and that the order of May 9, 2000, and the Federal Court of Appeal’s judgment of November 30, 2002, are not conflicting. The applicant was ordered to pay the Attorney General’s costs at both the trial and appeal levels.

The applicant is now appealing this decision in File A-443-03. The appellant has cited the Information Commissioner as a respondent, but seeks no relief against him. As a result, the Information Commissioner has brought a motion seeking to be removed from the proceeding and to amend the style of cause accordingly and has obtained the parties’ consent to this end. No judgment has been rendered yet on this motion.

Stephen Byer v. The Hon. John M. Reid (The Information Commissioner of Canada) and Others, (T-1221-02) Federal Court (See Annual Report 2002-2003 p. 89 for further details)

These proceedings involved five motions arising out of an Application for Review by Mr. Byer brought pursuant to both section 41 of the Access to Information Act and section 18.1 of the Federal Court Act.

In the applications, Mr. Byer sought a review of a) the Information Commissioner’s "decision" to accept a decision by the Treasury Board Secretariat (TBS) refusing access to portions of requested records and b) seeking an order of mandamus to compel both the TBS and the commissioner to provide access to the impugned records.

In essence, Mr. Byer alleged that, by not recommending that TBS disclose a requested record, the commissioner acted in bad faith and should be required to inter alia produce and/or make available to Mr. Byer those portions of the requested records which TBS refuses to release. The reason bad faith was alleged is that the commissioner had recommended partial disclosure of a similar record in another case.

In response, on August 21, 2002, the Information Commissioner filed an objection to Mr. Byer’s request for materials in the Information Commissioner’s possession and a motion to strike the Notice of Application or ordering that it proceed as two separate applications or in the further alternative that the court direct that the matter proceed to mediation. In response, Mr. Byer brought a motion to rule on the commissioner’s objection to his request for production. Thereafter, TBS brought two motions, namely: seeking leave to file a confidential affidavit of one of the respondents, and amending the designation of the responding parties.

The case was sent to mediation, which failed to resolve the matter. Accordingly, five main motions were heard by Prothonotary Tabib.

1. Should the Application for Review as against the Information Commissioner be struck on the basis that it is bereft of any chance of success and/or seeks more than one form of relief?
2. Should the court dismiss Mr. Byer’s motion to reject the commissioner’s objection to Mr. Byer’s request for production thereby ordering the commissioner to disclose records subject to a government refusal under the access regime?
3. Should TBS be entitled to file a confidential affidavit?
4. Should the style of cause be amended to reflect the only proper respondent being the president of TBS?

Should the Application for Review as against the Information Commissioner be struck on the basis that it is bereft of any chance of success and/or seeks more than one form of relief?

Prothonotary Tabib noted that Mr. Byer did not seek an order which would allow the Information Commissioner to reinvestigate his complaint against the TBS’s refusal and concluded that the original application against the Information Commissioner should be struck on the basis that it was bereft of any chance at success.

In reaching this decision, Prothonotary Tabib pointed out that there is no jurisdiction to review the commissioner’s findings and recommendations under section 41 of the ATIA. Further, while the commissioner’s investigations may be subject to judicial review under section 18.1, in the present case, the sole relief sought by Mr. Byer against the commissioner was a review of his "decision" and an order directing, inter alia, that the commissioner release information requested from the TBS. Prothonotary Tabib determined that a review of the commissioner’s recommendations would serve no useful purpose and that the relief of mandamus as against the commissioner must fail because the Information Commissioner has no authority to disclose or provide access under the Act.

Should the court dismiss Mr. Byer’s motion to reject the commissioner’s objection to Mr. Byer’s request for production thereby ordering the commissioner to disclose records subject to a government refusal under the access regime?

Having already determined that the application as against the commissioner is struck, Prothonotary Tabib rejected the motion opposing the commissioner’s objection to producing records subject to TBS’s access refusal.

Should TBS be entitled to file a confidential affidavit?

Mr. Byer did not file any written representations in response to TBS’s motion for leave to file a confidential affidavit of communications between the commissioner and TBS concerning the processing of Mr. Byer’s access request. Accordingly, she allowed TBS’s motion.

Should the style of cause be amended to reflect the only proper respondent being the President of TBS?

After again noting that Mr. Byer had not filed a responding record and/or made arguments at the hearing with respect to TBS’s motion to amend the style of cause, Prothonotary Tabib determined that the only proper respondent to the application was the President of the Treasury Board. She therefore ordered that the style of cause be amended so as to name him as the sole respondent.

Subsequently, Mr. Byer has appealed the decisions rendered by Prothonotary Tabib, on the basis inter alia that she lacked jurisdiction to order the relief. The hearing of this application has been set for June 23, 2004. The outcome will be reported next year.

Sheldon Blank v. The Information Commissioner of Canada, (T-2324-03) Federal Court

The applicant, Sheldon Blank, brought an application for a mandamus order on December 9, 2003, requiring the Information Commissioner to issue his report to the applicant pursuant to section 37 of the Access to Information Act. The applicant submits that his complaint has not been investigated and reported on in a timely manner.

The Information Commissioner has filed a Notice of Appearance in this proceeding. By letter dated February 20, 2004, Mr. Blank was informed that the Information Commissioner of Canada had reported the results of his investigation and his recommendations to the head of Justice Canada and that a report will be issued to him forthwith as soon as the head of Justice Canada advises whether it will follow, or not, the Information Commissioner’s recommendations.

The Information Commissioner issued his report to Mr. Blank in March 2004, and will argue before the court that the application for mandamus is now moot.