Statham v. Canadian Broadcasting Corporation

Statham v. Canadian Broadcasting Corporation
Court (s) Database
Federal Court of Appeal Decisions
Date
2010-11-22
Neutral citation
2010 FCA 315
File numbers
A-458-09
Notes
Reported Decision
Decision Content
Date: 20101122
Docket: A-458-09
Citation: 2010 FCA 315
CORAM: DAWSON J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
DAVID J. STATHAM
Appellant
and
PRESIDENT OF THE CANADIAN
BROADCASTING CORPORATION
Respondent
and
THE INFORMATION COMMISSIONER OF CANADA
Intervener
Heard at Ottawa, Ontario, on September 15, 2010.
Judgment delivered at Ottawa, Ontario, on November 22, 2010.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: TRUDEL J.A.
MAINVILLE J.A.
Date: 20101122
Docket: A-458-09
Citation: 2010 FCA 315
CORAM: DAWSON J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
DAVID J. STATHAM
Appellant
and
PRESIDENT OF THE CANADIAN
BROADCASTING CORPORATION
Respondent
and
THE INFORMATION COMMISSIONER OF CANADA
Intervener
REASONS FOR JUDGMENT
DAWSON J.A.
[1] The Access to Information Act, R.S.C. 1985, c. A-1 (Act) provides a right of timely access to information in records under the control of a government institution. The Act has been held to enshrine a quasi-constitutional right of access for the purpose of facilitating democracy. This appeal from a decision of the Federal Court, cited as 2009 FC 1028, 353 F.T.R. 102, raises important issues relating to the exercise of the powers of the Information Commissioner (Commissioner) during an investigation of a government institution’s deemed refusal to disclose records. Also at issue is the availability of recourse to the Federal Court to review a government institution’s deemed refusal to disclose records. Specifically, when the Commissioner receives a complaint, investigates an institution's deemed refusal to disclose records, secures an undertaking from the institution that the access request will be responded to by a specific date, and issues a final report to the access requester:
(a) Has the Commissioner granted a reasonable extension of time to the institution to respond to the access request so as to in effect "cure" the deemed refusal?
(b) Can the access requester apply to the Federal Court to judicially review the institution’s deemed refusal to disclose records?
[2] For the following reasons I would answer no to the first question and yes to the second.
The Facts and Procedural History
[3] The facts are comprehensively set out in the reasons of the Federal Court. The following synopsis of the facts is sufficient for the purpose of this appeal. All sections of the Act referred to in these reasons are set out in the appendix to the reasons.
[4] On September 1, 2007, the Canadian Broadcasting Corporation (CBC) became subject to the provisions of the Act. Between September 1, 2007 and December 12, 2007, the appellant, Mr. Statham, submitted almost 400 access to information requests to the CBC.
[5] The CBC failed to respond to the appellant's requests within 30 days of their receipt as required by section 7 of the Act. As well, the CBC failed to notify the appellant that extensions of time to respond were being claimed pursuant to section 9 of the Act. In consequence, by operation of subsection 10(3) of the Act, the CBC was deemed to have refused to give access to Mr. Statham. For ease of reference, subsection 10(3) of the Act provides:
Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
Le défaut de communication totale ou partielle d’un document dans les délais prévus par la présente loi vaut décision de refus de communication.
[6] Thereafter, the appellant submitted approximately 389 complaints to the Commissioner, alleging that the CBC was deemed to have refused access to requested records. The Commissioner's office then began its investigation.
[7] The Commissioner did not investigate the deemed refusals as if there had been a final refusal to grant access based on exemptions or exclusions under the Act. To have proceeded in that manner would have required the Commissioner to compel production of records, seek representations from the CBC concerning disclosure, and consider the merits of any claimed exemptions or exclusions. Instead, the Commissioner was of the view that the CBC had been inundated and overwhelmed by the volume of access requests so that it would require a reasonable amount of time to respond to them. After discussions with the CBC and Mr. Statham, the Commissioner recommended that the CBC respond to all of the access requests by April 1, 2009. The CBC agreed to respond to all of the requests by that date (commitment date).
[8] On March 31, 2008, the then Commissioner made his report to the appellant, as required by subsection 37(2) of the Act. In material part, the report stated:
“[…] the institution has not responded to your requests, thereby placing itself in a deemed-refusal situation pursuant to subsection 10(3) of the Act.
Nonetheless, following our intervention, the institution has provided assurances to our office that, through its best efforts, it will respond to all of the requests itemized in the attached Annex on or before April 1, 2009. The target date is based on a number of factors, most notably the volume of requests and the lack of resources in the [access to information] office. We also received assurances from the CBC that it will provide you with the responses as they are completed over the coming months. Please note that we will regularly monitor the CBC’s progress in this regard. I consider this to be a reasonable commitment on CBC’s part to finalize the processing of all of your listed requests.
While your complaints are valid, I conclude that they are resolved on the basis that CBC has undertaken to respond to each request on or before April 1, 2009. As each response is provided to you by the CBC, in the coming months, you do of course have the right under section 31 of the Act to complain to this office.
In accordance with paragraph 30(1)(a) and subsection 37(5) of the Act, please be advised that having now received our report on the results of our investigation with respect to these deemed-refusals to disclose records requested under the Act, section 41 provides that you have the right to apply to the Federal Court for a review of the Canadian Broadcasting Corporation’s deemed-refusal to deny you access to the records you requested. Such an application should name the President of the Canadian Broadcasting Corporation as respondent and it must be filed with the Court within 45 days of receiving this letter.”
[Emphasis added.]
[9] On May 20, 2008, Mr. Statham commenced an application for judicial review in the Federal Court pursuant to section 41 of the Act. One application was filed in respect of all of the access requests. The relief sought by Mr. Statham was:
1. An order requiring the CBC to disclose the requested documents by a deadline to be agreed by the parties or set by the Court.
2. Costs.
3. Such further orders as the Court might deem just or appropriate.
[10] Thereafter, the Commissioner sought leave to intervene in the application for judicial review in order to respond to allegations made by the appellant against the Commissioner's office and to make representations with respect to the interpretation and administration of the Act. In response to the Commissioner’s motion the appellant agreed to withdraw his allegations against the Commissioner. The Commissioner was given leave to intervene in the application for the purpose of making written and oral submissions to the Court on the issues of the jurisdiction of the Court and the appropriate remedy in the event the application was successful.
[11] Following the Commissioner’s motion, the CBC brought a motion to strike the application on the ground it was bereft of any chance of success. At the same time the Commissioner moved for an order either setting aside the application or giving directions as to the conduct of the proceeding. Prothonotary Tabib found that Mr. Statham had improperly challenged in a single application several hundred refusals by the CBC. In exercising her discretion nonetheless to allow the application to proceed, the Prothonotary observed that:
In the present instance, the Applicant has eventually made it very clear that the issues raised in relation to the requests for information concern only the belated and allegedly unreasonable extension of time imposed by the CBC to respond to the requests; furthermore, these issues arise only in relation to requests for information to which no response has been or is received prior to the hearing of the application on its merits. The Applicant also clearly specified that by “response” to a request for information, he means communication of the information, a refusal or a request for additional fees. In short, the Applicant concedes that for every request for which a response, of any kind, has been or may be received, up to the start of the hearing, the application is or will be moot and will be withdrawn. On that basis, this Court will not be called upon to determine the merits of any actual refusal by the CBC, a task which undoubtedly would have made it impossible to deal with such numerous and diverse requests for information in a single proceeding.
[Emphasis added.]
[12] On this basis, the application was permitted to proceed. The appellant was ordered to pay the costs of both motions to the CBC and to the Commissioner.
[13] As of the commitment date, the CBC had not responded to 38 access requests. Responses to those access requests were delivered on May 29, 2009 - five days before the Federal Court heard the application for judicial review.
[14] Notwithstanding that at the time of the hearing the CBC had delivered responses to all of the access requests, Mr. Statham continued to prosecute the application, seeking a declaration that the CBC had acted unreasonably. This was not relief sought in Mr. Statham’s amended notice of application. The only complaint Mr. Statham had made to the Commissioner was that the CBC was deemed to have refused to give access to the requested records.
The Decision of the Federal Court
[15] The Judge of the Federal Court who heard the application for judicial review dismissed the application for disclosure and declined to grant declaratory relief. He awarded costs in favour of the CBC and the Commissioner; those costs were to be assessed at the mid-range of column V of the table to Tariff B of the Federal Courts Rules.
[16] In coming to this decision the Judge identified three issues to be determined. They were described by the Judge to be:
a) Is the application moot, in light of the fact that all [access] requests have been responded to by the CBC at the time of the hearing?
b) If the issue is found not to be moot, does the Act allow a deemed refusal to be cured by the Information Commissioner setting out a new time limit within which the notice required under sections 7 and 10 must be given? And does this Court have jurisdiction under section 41 of the Act to judicially review the determination of a delay for answering [access] requests approved by the [Commissioner] in the exercise of his power under the Act?
c) Was the conduct of either one of the parties throughout these proceedings unreasonable, outrageous, vexatious and reprehensible so as to justify costs on a solicitor-client basis?
The Judge then went on to consider each issue.
a. Mootness
[17] The Judge reviewed the order of Prothonotary Tabib, quoted in material part at paragraph 11 above. After a discussion of the relevant case law he concluded, at paragraph 30 of his reasons, that the application for judicial review was moot because "all the records requested by the applicant had been disclosed at the time of the hearing." This notwithstanding, the Judge viewed the application to raise important issues. For that reason he exercised his discretion to hear the application.
b. The concept of curing deemed refusals and the jurisdiction of the Federal Court
[18] The Judge began his discussion of these issues by acknowledging that, under subsection 10(3) of the Act, the CBC was deemed to have refused access to all of the records requested by the appellant. This deemed refusal placed Mr. Statham, the Commissioner and the CBC in the same position as if there had been an explicit refusal within the meaning of section 7 of the Act. It followed in the Judge’s view that the appellant had the right to complain to the Commissioner under paragraph 30(1)(a) of the Act.
[19] The Judge found that once an institution is deemed to have refused access it cannot “unilaterally relieve itself of that deemed refusal and is proscribed from remedying it by simply granting itself a further time extension.” He went on to state that this did not mean “that the deemed refusal cannot be cured. It is then for the Information Commissioner, having received a complaint from the person who has been refused access, to investigate the matter and to make a report.”
[20] The Judge explained that following the investigation of the complaint, the Commissioner had the power to issue recommendations under subsection 37(1) of the Act. In the Judge’s view, expressed at paragraph 36 of his reasons, the power to issue recommendations:
36. […] encompasses the right to set a time frame within which an institution has to respond to a request for documents and to follow up with the institution on the action plan undertaken by the institution to comply with that time frame. At that stage, the requirements found in s. 9 of the Act are no longer applicable, contrary to the applicant's submissions. It is for the Commissioner to assess the circumstances and to determine a reasonable extension of time to comply with its recommendations.
[21] The Judge then considered whether the Commissioner’s actions affected Mr. Statham's right to apply to the Court under section 41 of the Act. At paragraphs 37 and 38 of his reasons he wrote:
37. Could the applicant come to the Court, within 45 days after he received the letter from the Commissioner reporting the results of his investigation of his complaints, to review the matter pursuant to section 41 of the Act? As previously mentioned, the relief sought by the applicant is twofold: first, he requested the CBC disclose those documents that had not yet been disclosed at the time of his amended application, and second, he asked that the CBC be found to have acted unreasonably in failing to respond to his access requests in accordance with the provisions of the Act.
38. As previously mentioned, the first relief has been overtaken by events. At the time of the hearing, the applicant had been provided with a response to all of his requests. Despite the ambiguity of his application, this is clearly what he was seeking; he made it clear before the Prothonotary that what he meant by a response was either the communication of the information or a refusal (total or partial) of the communication. As a result, the issue is not only moot but this Court has no jurisdiction to entertain the application since he has not been refused what he was seeking from the CBC.
[Emphasis added.]
[22] During oral argument of this appeal, counsel for Mr. Statham agreed that the ratio decidendi of the Judge’s decision is found in the last sentence of paragraph 38.
[23] The Judge then went on, in obiter dicta, to more fully explain the effect at law of the Commissioner's actions. At paragraphs 39 to 43 of his reasons, the Judge expressed his view that once the Commissioner and the CBC agreed that the CBC would respond to all of the access requests by the commitment date, no application could be brought by the appellant under section 41 of the Act. In the Judge's words:
39. But I would go even further. It seems to me the applicant could not apply to the Court while the CBC was still within the time frame set by the Commissioner. The Commissioner could have chosen to initiate his investigation, upon the complaint of the applicant, as if there had been a true refusal. Just as in the case of Canada Information Commissioner v. Minister of National Defence, supra, he chose instead to split his investigation and to try to get a response from the institution, leaving for a second stage the examination of the merits of whatever response might be provided. As a result, the applicant could not apply to the Court until April 1, 2009, as it could not yet be said until the expiry of that delay period granted by the Commissioner that the CBC had refused access to the records.
40. Section 41 of the Act states that an applicant may apply to the Court if he or she has been refused access to a record and has complained to the Commissioner in respect of that refusal. It is clear from the context of the Act read as a whole and from the wording of that section that the Court was granted jurisdiction in cases where access to the record had been denied, in whole or in part. This is consistent with section 37 of the Act, focused as it is on the actual content of the response provided by a government institution and its conformity with the Act.
41. Of course, the Commissioner could have initiated his investigation as if there had been a true refusal, without giving the CBC any further delay to respond. In such a scenario, the applicant could have come to the Court and sought a review if the CBC had not complied with the findings and recommendations of the Commissioner. But this was not the course of action chosen by the Commissioner. Accordingly, it was premature to come to the Court before April 1, 2009. In other words, I do not think this Court has jurisdiction to judicially review the determination of a delay for answering ATI requests approved by the OIC in the exercise of its power under the Act.
42. While I have been unable to find any precedent dealing specifically with this issue, there have been cases where an applicant brought an application to the Court after a government institution, despite having sought a time extension, had failed to respond before the expiry of the extended deadline. In the first decision, the Court concluded that it had jurisdiction to entertain a judicial review even if the response was provided before the hearing: Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514. This interpretation, however, was rejected in two subsequent decisions: see X v. Canada (Minister of National Defence), (1990) 41 F.T.R.16 and X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (F.C.T.D.). In that last decision, Justice Strayer explicitly endorsed the approach taken by Dubé, J. in the preceding case and wrote that "...unless there is a genuine and continuing refusal to disclose and thus an occasion for making an order for disclosure or its equivalent, no remedy can be granted by this Court".
43. I am therefore reinforced in my view that this Court does not have jurisdiction to entertain the application filed by the applicant. Even if the CBC was initially in a deemed refusal situation, it could not be said at the time of the hearing that the applicant had a genuine and continuing claim of refusal of access. Further, it is not much of a stretch to add that the applicant did not have a genuine and continuing claim of refusal of access either during the extension period given to the CBC to respond to his requests.
[Emphasis added.]
[24] The Judge went on to conclude that the Court lacked jurisdiction to make any declaration reprimanding the CBC for its behavior. The Judge adopted the remarks of the Court in X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (T.D.) to the effect that sections 49 and 50 of the Act, which empower the Court to make appropriate orders, only apply where the Court finds a refusal to disclose a record. Refusal of access is a condition precedent to the granting of an order. Thus, orders issued under sections 49 or 50 must be pertinent to providing access or its equivalent where there is first a finding that access has been refused.
c. Costs
[25] The appellant sought costs on a solicitor-client basis on the ground that the CBC had been adversarial and defensive in dealing with his access requests. The Judge relied on Rule 400 of the Federal Courts Rules, which confers full discretion on the Court when awarding costs. The Judge decided that the CBC’s behavior had not amounted to the type of reprehensible conduct that will ground an order for solicitor-client costs. Instead, the Judge found that it was Mr. Statham's behavior that had been objectionable. The Judge pointed to the Prothonotary’s criticism of Mr. Statham’s conduct in commencing one application which challenged many decisions of the CBC, his failure to properly amend his affidavit and amended application, and what the Judge characterized to be gratuitous allegations made by Mr. Statham against the Commissioner and, to a lesser extent, against the CBC.
[26] The Judge, relying on the factors outlined in Rule 400(3)(c), (g), (i) and (k), awarded costs against Mr. Statham under the highest column of the table to Tariff B of the Federal Courts Rules. The Judge did not refer to subsection 53(2) of the Act.
The Issues
[27] The parties and the intervener raise a number of issues. In my view, the issues to be decided may properly be framed as follows:
1. Did the Judge err in his primary finding that the application was moot because at the time of the hearing Mr. Statham had been provided with a response to all of his access requests?
2. What is the effect at law of a deemed refusal of access?
3. When the Commissioner receives a complaint alleging a deemed refusal of access, may the Commissioner limit her investigation to establishing a time frame in which the government institution is to respond to the access request?
4. If the Commissioner is entitled to so limit her investigation, did the Judge err by stating that it is for the Commissioner to assess the circumstances and determine what is a reasonable deadline for complying with the access request, thus in effect curing the deemed refusal?
5. Did the Judge err by stating that Mr. Statham could not apply to the Federal Court to judicially review the CBC’s deemed refusal of access prior to the expiration of the commitment date?
6. Did the Judge err by failing to grant the requested declaration?
7. Did the Judge err by awarding costs against Mr. Statham?
Consideration of the Issues
1. Did the Judge err in his primary finding that the application was moot because at the time of the hearing Mr. Statham had been provided with a response to all of his access requests?
[28] As explained above at paragraph 22, during oral argument of the appeal counsel for Mr. Statham agreed that the ratio decidendi of the decision of the Federal Court is that the application for judicial review was moot and the Court lacked jurisdiction because Mr. Statham had received responses from the CBC. It follows that the Judge's later statements about the effect of the Commissioner’s agreement with the CBC concerning the commitment date and Mr. Statham's right of access to the Federal Court were obiter dicta because they were unnecessary for the Judge’s decision on the determinative question.
[29] In that circumstance, it is important that this Court affirm that, as a matter of law, the Judge possessed complete discretion to dismiss the application for judicial review on the ground of mootness. See, for example, Canada (Information Commissioner of Canada) v. Canada (Minister of National Defence) (1999), 240 N.R. 244 (F.C.A.) (hereafter Minister of National Defence).
[30] Further, on the facts before the Judge I am satisfied that he committed no reviewable error in the exercise of that discretion. Mr. Statham had conceded before the Prothonotary that if every request for access was responded to the application would become moot and would be withdrawn. Given that Mr. Statham's complaint to the Commissioner only concerned the CBC’s deemed refusal of access, and given the clarifications Mr. Statham gave to the Prothonotary, referred to in the quotation at paragraph 11 above, Mr. Statham's concession was correct in law. Once all of the access requests were responded to, the rights of the parties in relation to those responses could not be affected by any decision in the pending application for judicial review. With respect to the Judge’s reference to the Court lacking “jurisdiction to entertain the application”, there was no issue of jurisdiction in the sense the Court was forbidden from speaking on the issues before it. After the access requests were responded to the Court could still consider issues such as costs.
[31] Leaving aside the question of costs, the consequence of this is that I would dismiss the appeal on the ground that no error has been demonstrated with respect to the Judge’s conclusion that the application for judicial review should be dismissed on the ground of mootness.
[32] That said, this Court heard full argument on the Judge’s obiter statements and was advised that a number of cases are being held in abeyance pending a decision on this appeal. As well, the Court has heard another appeal from a decision of the Federal Court which followed the decision here under appeal. On that basis, I am satisfied that it is consistent with the principle of judicial economy to address the following issues.
2. What is the effect at law of a deemed refusal of access?
[33] The appellant argues that the Judge's analysis is premised on the idea that the Federal Court has jurisdiction under section 41 of the Act only with respect to a "true refusal" of access. A "true refusal" is said to arise when a government institution has responded to an access request by invoking one of the provisions of the Act that exempts or excepts a record from access. The appellant submits that this conclusion renders meaningless the deeming provision found in subsection 10(3) of the Act.
[34] I have not been persuaded that the Judge drew a distinction between deemed and actual refusals. At paragraph 34 of his reasons, the Judge wrote:
34. When an institution runs afoul of the timelines prescribed by the Act, subsection 10(3) deems the institution to have refused access to the requested documents with the result that the government institution, the complainant and the [Commissioner] are placed in the same position as if there had been an explicit refusal within the meaning of section 7 of the Act. By incorporating subsection 10(3) into the access regime, Parliament ensured that government institutions could not avoid access obligations by way of delay or non-response and provided a mechanism through which requesting parties are able to file a complaint and eventually seek review from the Court.
[Underlining added.]
[35] In any event, I believe it is settled law that no distinction exists between a “true refusal" and a deemed refusal of access. As this Court wrote in Minister of National Defence at paragraph 19:
19. Under the terms of subsection 10(3) of the Act, where a government institution fails to give access to a record within the time limits set out in the Act, there is a deemed refusal to give access, with the result that the government institution, the complainant and the Commissioner are placed in the same position as if there had been a refusal within the meaning of section 7 and subsection 10(1) of the Act.
3. When the Commissioner receives a complaint alleging a deemed refusal of access, may the Commissioner limit her investigation to establishing a time frame in which the government institution is to respond to the access request?
[36] The Commissioner submits that this issue is essential to the determination of whether a commitment date effectively cures a deemed refusal with the consequence that a complainant's right to apply to the Federal Court under section 41 of the Act for review of the refusal is suspended.
[37] Neither party challenges the right of the Commissioner to so limit her investigation. The CBC points out that Prothonotary Tabib’s order reflected the understanding of the parties that the Federal Court would not be called upon to adjudicate upon the merits of the CBC's responses to the access requests. The Court could not consider the merits of the responses because the Commissioner had chosen not to investigate the merits of any refusal of access by the CBC.
[38] The Judge also accepted that the Commissioner was entitled to limit her investigation to requiring the CBC to respond to each access request so that Mr. Statham could then consider the merits of whatever response was provided. If not satisfied with any response, Mr. Statham could make a further complaint to the Commissioner, who would then consider the merits of any exemption or exclusion under the Act claimed by the CBC.
[39] In my view, the Judge was correct in his view that the Commissioner was entitled in her discretion to limit her investigation. Section 34 of the Act confers upon the Commissioner the power to "determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act." While this power is expressed to be "[s]ubject to this Act," there is nothing in the Act that suggests the Commissioner is required in every case to investigate and assess a government institution’s claimed exemptions or exclusions before the Commissioner can report that in her view the government institution is deemed to have refused access. As the Commissioner points out, such a requirement would have significant resource implications for her office.
[40] Support for the view that the Commissioner may limit her investigation is found in the reasons of this Court in Minister of National Defence. There, the Commissioner had received a complaint with respect to a deemed refusal of access and proceeded to investigate the complaint in the same manner as in the present case. At paragraph 21 of its reasons, the Court wrote:
21. In the instant case, as soon as the institution failed to comply with the time limit, the Commissioner could have initiated his investigation as if there had been a true refusal. He does have powers to investigate including, at the beginning of an investigation, the power to compel the institution to explain the reasons for its refusal. The Commissioner, who is master of his procedure pursuant to section 34 of the Act, chose another approach. He hoped to persuade the institution to voluntarily give the notice required under sections 7 and 10. He tried to transform, as it were, what was then a deemed refusal into a true refusal. For all practical purposes, he split his investigation into two parts, initially trying to get an answer from the institution, so he could then consider the merits of whatever answer might be provided.
[Emphasis added.]
[41] Implicit in this passage, and in the reasons of the Court in their entirety, is the affirmation of the right of the Commissioner to limit her investigation of a deemed refusal. The Commissioner may confine her investigation to recommending a time frame in which a government institution is to respond to the access request. Such an approach will result, at the end of the day, in the government institution giving the notice required under sections 7 and 10 of the Act. If at that time access is not provided, the institution’s response will enable the access requester to consider whether to lodge a further complaint with the Commissioner.
4. If the Commissioner is entitled to so limit her investigation, did the Judge err by stating that it is for the Commissioner to assess the circumstances and determine what is a reasonable deadline for complying with the access request, thus in effect curing the deemed refusal?
[42] The appellant submits that the Judge erred in law by construing the Act to give the Commissioner power to "cure" deemed refusals by permitting a government institution to respond to an access request outside of the statutory time frame.
[43] The position of the Commissioner is that this "is not a power that the Commissioner had understood to have been granted" to her. Nor, in the Commissioner's view, "is this a power expressly or implicitly conferred" upon the Commissioner under the Act.
[44] The CBC argues that the appellant's interpretation of the Act does not acknowledge the right of the Commissioner to determine the procedure to be followed when investigating a complaint that there has been a deemed refusal of access. In its submission, it is the nature of the procedure followed by the Commissioner that will be determinative of whether a deemed refusal can be judicially reviewed.
[45] In my respectful view, the Judge erred in law when he interpreted the Act to empower the Commissioner to "cure" deemed refusals by establishing, with the agreement of the institution, a commitment date. The Judge’s interpretation in effect allows the Commissioner, by agreeing to a commitment date, to transform the deemed refusal into a valid and binding extension of time for responding to the access request. I reach the conclusion that the Judge erred for the following reasons.
[46] First, contrary to the submission of the CBC, the discretion to determine the procedure to be followed in an investigation is a distinct and separate issue from the powers granted to the Commissioner when investigating a complaint. The Commissioner’s powers are set out in section 36 of the Act. Neither section 36 nor any other provision of the Act confers power on the Commissioner to extend the time frames set out in the Act.
[47] Second, the role of the Commissioner is to make non-binding recommendations to the relevant government institution. The Commissioner has no authority to order the disclosure of any record. See, for example, Minister of National Defence at paragraph 27, Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 at paragraph 12 (T.D.), and Canada (Attorney General) v. Canada (Information Commissioner), [2004] 4 F.C.R. 181 at paragraph 32 (T.D.) (rev’d on other grounds). It is inconsistent with the role and mandate of the Commissioner to clothe her with authority to grant to a government institution a binding extension of time for the purpose of responding to an access request.
[48] Finally, the Judge appears to have relied upon the decision of this Court in Minister of National Defence to conclude that Mr. Statham could not apply to the Court until after the expiration of the commitment date. In that case, the Court affirmed the decision of the Federal Court that an application for judicial review of a deemed refusal of access was rendered moot because the institution had finally provided a response to the access request. To the extent the application for judicial review was directed towards the merits of the exemptions claimed in the response, the application was premature because the Commissioner had not investigated those claimed exemptions. This decision does not support the Judge’s interpretation of the Act.
[49] To conclude on this point, the Act confers no authority on the Commissioner to "cure" a deemed refusal of access by granting any extension of time to a government institution to respond to an access request.
5. Did the Judge err by stating that Mr. Statham could not apply to the Federal Court to judicially review the CBC’s deemed refusal of access prior to the expiration of the commitment date?
[50] As explained above at paragraph 23, the Judge found that Mr. Statham could not seek judicial review prior to the expiration of the commitment date. The Judge reached this conclusion notwithstanding that one year prior to the commitment date the then Commissioner had completed his investigation of the complaint and made his final report to Mr. Statham under subsection 37(2) of the Act. In that report, the Commissioner advised Mr. Statham that he could apply under section 41 of the Act to the Federal Court for a review of the CBC’s deemed refusal to deny him access to the requested records.
[51] Mr. Statham asserts that the Judge’s analysis is premised on the idea that the Federal Court only has jurisdiction under section 41 of the Act with respect to “true refusals” of access. Mr. Statham also argues that the Judge's conclusion that he had no right of access to the Federal Court is not supported by the language or purpose of the Act.
[52] The Commissioner submits that section 41 of the Act does not specify that the right of judicial review is confined to actual or true or continued refusals and the Judge's interpretation of the Act unnecessarily restricts the Federal Court's jurisdiction under the Act.
[53] The CBC asserts that section 41 of the Act confers on the Federal Court a limited power to entertain an application for judicial review were a person has been "refused" access to a record by an institution. The term "refused" is said to refer exclusively to an "actual" refusal. Reliance is placed upon the Judge's comment at paragraph 43 of his reasons that there was no "genuine and continuing" refusal of access "during the extension given to the CBC to respond." The CBC further says that the purpose of the deemed refusal provision in subsection 10(3) of the Act is simply to allow an access requester to file a complaint with the Commissioner when an institution fails to respond to an access request within the time frame prescribed by the Act.
[54] As explained at paragraph 34 above, I do not believe the Judge concluded that deemed refusals are insufficient to found an application under section 41 of the Act. Rather, what the Judge considered to be determinative was how the Commissioner decides to conduct her investigation. This is reflected at paragraph 41 of his reasons where the Judge stated that a deemed refusal could be judicially reviewed where the Commissioner does not allow any further time for the institution to respond to the access request, but instead investigates "as if there had been a true refusal."
[55] That said, in my respectful view the Judge erred when he found that, as a matter of law, there was no right to judicially review the deemed refusal to provide access in the circumstances before the Court. Where there is a complaint of a deemed refusal to provide access, the complainant may apply for judicial review within 45 days of receiving the Commissioner's report made under subsection 37(2) of the Act. The relevance of the procedure chosen by the Commissioner is that in an application under section 41 of the Act the Court cannot rule upon the application of any exemption or exclusion claimed under the Act if the Commissioner has not investigated and reported upon the claim to the exemption or exclusion. I reach this conclusion for the following reasons.
[56] First, as is apparent from paragraph 41 of the Judge’s reasons, the Judge’s conclusion that Mr. Statham could not apply for judicial review was based upon his conclusion that the Commissioner had, by agreeing to the commitment date, in effect granted an extension of time to the CBC, thus "curing" its deemed refusal. As explained above, the Commissioner had no power to grant an extension of the time limits set out in the Act.
[57] Second, there is nothing in the wording of section 41 of the Act which limits the right of access to the Court to an actual refusal of access. For ease of reference, section 41 is reproduced here:
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information