Canada (Information Commissioner) v. Toronto Port Authority

Canada (Information Commissioner) v. Toronto Port Authority
Court (s) Database
Federal Court Decisions
Date
2016-06-17
Neutral citation
2016 FC 683
File numbers
T-1453-14
Decision Content
Date: 20160808
Docket: T-1453-14
Citation: 2016 FC 683
Ottawa, Ontario, August 8, 2016
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
TORONTO PORT AUTHORITY
Respondent
and
CANADIAN PRESS ENTERPRISES INC.
Added Party
PUBLIC JUDGMENT AND REASONS
I. Introduction A. Nature of the Matter [1] The Information Commissioner of Canada [the Commissioner or OIC] brings this application for judicial review pursuant to paragraph 42(1)(a) of the Access to Information Act, RSC 1985, c A-1 [ATIA] on behalf of Canadian Press Enterprises Inc. for an order directing the Toronto Port Authority, now Ports Toronto [TPA], to disclose the Minutes of a TPA Audit and Finance Committee [the Committee] Meeting.
B. Background [2] TPA is a government business enterprise that owns and operates three pieces of infrastructure in the City of Toronto: Billy Bishop Toronto City Airport, formerly known as the Toronto City Centre Airport [TCCA], the Port of Toronto and the Outer Harbour Marina.
[3] TPA is established under the provisions of the Canada Marine Act, SC 1998, c 10 [Marine Act]. TPA is accountable to the Canadian Government through Transport Canada. It maintains a nine member Board of Directors appointed by all three levels of government [Board], some of who sit as members of the Committee. There is no dispute that for the purpose of paragraph 3(a) of the ATIA, TPA is a “government institution” included in Schedule I of the ATIA.
[4] On December 23, 2008 the Committee met [the Meeting] and minutes of that meeting were generated [the Minutes].
[5] On June 8, 2009, a Canadian Press Reporter [the Requester] filed an access to information request with TPA requesting, among other documentation, the “notes/minutes/recordings” of the Meeting. On September 10, 2009, TPA refused to release any part of the Minutes to the Requester on the basis that they contained commercial and financial information, the release of which would prejudice TPA’s competitive position and were therefore exempt from disclosure under the ATIA.
[6] As a result of the TPA refusal, the Requester filed a complaint with the Commissioner dated September 24, 2009. On October 19, 2009 the OIC notified TPA of the complaint and its intention to carry out an investigation. On November 19, 2010, the OIC contacted TPA and requested the relevant documents from TPA and that they provide the underlying rationale for the exemptions claimed.
[7] On January 31, 2011, TPA responded to the OIC reasserting its position that the Minutes contained commercial information that would prejudice TPA’s competitive position and that TPA was relying on paragraphs 18(a) and 18(b) of the ATIA in refusing to disclose the Minutes to the Requester.
[8] On March 28, 2011 the OIC requested that TPA provide a detailed rationale/justification for each instance where it sought to maintain an exemption under paragraphs 18(a) and 18(b) and that TPA advise whether it had considered severing any of the information and disclosing part of the Minutes as required by section 25 of the ATIA.
[9] The OIC did not receive a formal response to its March 28, 2011 request. On September 16, 2011 the OIC wrote to the President and Chief Executive Officer of TPA [the “Head”] pursuant to paragraph 35(2)(b) of the ATIA inviting TPA to provide representations and evidence by October 5, 2011 demonstrating (1) that the Minutes fall within the scope of the paragraphs 18(a) and 18(b) exemptions; and (2) how TPA had exercised its discretion to withhold the information under those exemptions. The letter further requested that TPA consider whether portions of the Minutes could be reasonably severed under section 25 of the ATIA.
[10] In the September 16, 2011 letter the OIC also expressed the preliminary view that TPA had not discharged its onus of demonstrating that: (1) the Minutes fall within the scope of the exemptions under paragraphs 18(a) or 18(b); (2) it had reasonably exercised its discretion in not disclosing the Minutes to the Requester; and (3) it had given due consideration to whether or not the Minutes could be severed and partly disclosed pursuant to section 25 of the ATIA.
[11] On November 16, 2011, the Head of TPA responded to the OIC, stating that the exemptions claimed under paragraphs 18(a) and 18(b) need to be considered in the context of TPA’s commercial mandate as set out at section 4 of the Marine Act. The Head’s reply advises that efforts were made to sever information pursuant to section 25 of the ATIA and advances TPA’s rationale for not being in a position to sever any of the information in the Minutes. In this letter TPA also invokes the mandatory exemptions relating to third party information set out at paragraphs 20(1)(b) and 20(1)(d) of the ATIA.
[12] On December 21, 2011 the OIC wrote to the Head of TPA pursuant to paragraph 35(2)(b) of the ATIA inviting further representations on the subsection 20(1) exemptions. The OIC also advised that it remained unconvinced that TPA had properly applied the section 18 exemptions again inviting further representations. On January 13, 2012, the Head of TPA provided further representations reiterating TPA’s position in relation to the claimed exemptions.
[13] In February, March and April of 2013 the OIC and TPA wrote to the private sector third party whose information formed the basis for TPA’s subsection 20(1) exemptions. The OIC advised the third party that it was not convinced that the subsection 20(1) exemptions applied to the information in issue and was therefore seeking submissions from the third party. The third party did not reply to the OIC correspondence.
[14] On September 12, 2013, the Commissioner wrote to the Head of TPA, pursuant to subsection 37(1) of the ATIA advising that based on the representations provided by TPA and the evidence gathered in the course of the OIC investigation, the claimed exemptions were generally not justified and the Requester’s complaint was well-founded. The Commissioner recommended that the Minutes be released in their entirety [the Subsection 37(1) Recommendation] and requested that TPA inform her of whether it intends to implement the recommendation or provide reasons for not taking the recommended action. The Commissioner further stated that upon being advised of TPA’s position on the recommendation the results of the investigation would be reported to the Requester.
[15] Subsequent to the subsection 37(1) Recommendation there were further discussions between the OIC and TPA. The Head of TPA wrote to the Commissioner on October 28, 2013 [the October 28, 2013 Letter] consenting to the disclosure of a redacted version of the Minutes although TPA maintained its position that the whole of the Minutes were exempt based on the exemptions claimed under paragraphs 18(a) and 18(b) and subsection 20(1). In this Letter the Head of TPA also states “further that the Minutes represent an account of consultations and deliberations of directors, officers and employees of the TPA, which may be exempted under s. 21(1)(b) of the Act.”
[16] For the purpose of this application, paragraph 21(1)(b) is a discretionary exemption that allows for the non-disclosure of accounts of consultations or deliberations of directors, officers or employees of a government institution. TPA had not previously identified or relied on the paragraph 21(1)(b) exemption. TPA subsequently delivered a severed or redacted version of the Minutes to the Requester again asserting paragraph 21(1)(b) as a basis for non-disclosure of the redacted portions of the Minutes [the Redacted Minutes].
[17] As a result of TPA’s position the OIC entered into an email exchange with the Requester to determine if the Requester was satisfied with the TPA disclosure of the Redacted Minutes. The OIC expressed the view that the disclosure fell well short of what had been recommended. In response, the Requester advised the OIC that he remained interested in pursuing the file and would like as much information as possible to be released. The OIC advised the Requester that there remained an opportunity to further negotiate with TPA and asked whether there was something specific in the Minutes being sought. The Requester confirmed that “I wouldn’t say there’s anything specific. My concern is more around the fact that a significant amount of the information is still redacted.”
[18] The OIC informed TPA via email that the Requester was not satisfied with the disclosure and indicated that as a result the OIC would proceed with its process. TPA inquired as to the basis of the dissatisfaction to determine if there was something more that might be provided to resolve the situation. The OIC subsequently advised TPA that the Requester wants access to the Minutes in their entirety.
[19] On May 12, 2014, the OIC’s report and recommendation was issued to the Requester pursuant to subsection 37(2) of the ATIA [the Final Report]. The Final Report concludes that the complaint was well-founded, that the Commissioner’s recommendation to TPA was that the latter release the Minutes in their entirety, and that the OIC had recorded the complaint as unresolved on the basis that TPA’s action taken was inadequate. The Final Report notes that TPA raised the paragraph 21(1)(b) exemption for the first time on October 28, 2013 after the Commissioner reported her findings to TPA. In this regard the Final Report concludes that TPA failed to meet its burden in justifying the application of the paragraph 21(1)(b) exemption and had also failed to provide any evidence to demonstrate a weighing of the factors for and against disclosure and the exercise of discretion in applying the exemption.
[20] On May 13, 2014, the Requester consented to the Commissioner applying to the Federal Court, pursuant to paragraph 42(1)(a) of the ATIA, for a review of TPA’s refusal to disclose the Minutes in their entirety.
C. The Redacted Minutes [21] As mentioned above, TPA provided the Redacted Minutes to the Requester. Those Redacted Minutes are in the applicant’s Public Application Record. The Redacted Minutes detail several topics and issues, including discussions relating to the purchase and financing of a new ferry to service the TCCA. The Redacted Minutes set out the following in this regard:
3. Ferry
The Committee had before it a report from the Acting President & CEO outlining New Ferry Financing Options – BMO Term Sheet with a recommendation that the Committee approve the $5 million Credit Facility made available by the Bank of Montreal (“BMO”) for the purchase of a second Ferry, to provide service to the TCCA. The report also set out BMO Term Loan Conditions for the new credit facility.
The Acting President & CEO reported that Management was seeking approval of the New Ferry and that the total cost including engineering, project management and soft costs totalled $4.85 million.
The Acting President & CEO advised that Management had gone through the Request for Proposals (“RFP”) process and had received bids from three ship builders.
The Acting President & CEO reported that there was a substantial difference between bidders from lowest to highest and Management was pleased with the results and were currently negotiating with the lowest bidder to refine the amount.
[22] On the following page of the Redacted Minutes it states “The Director of TCCA reported that in terms of budget price and the bid/ask range Hike Metals (‘Hike’), the lowest bidder, was satisfied they could meet the price.”
[23] Later in the Redacted Minutes it states:
It was moved by Mr. Mark McQueen that the Audit & Finance Committee recommend to the Board of Directors construction of a New Ferry to TCCA and the project cost not to exceed $4,850,000.00. Motion carried.
Approved. Mr. Henley voted against the motion.
[24] On the next page it states:
The Acting President & CEO indicated that it was his recommendation that the Committee approve the credit facility of $5 million made available by BMO and forward the Committee’s recommendation to the Board of Directors for approval.
It was moved by Mr. Mark McQueen and seconded by Mr. Colin Watson that the Committee approve the $5 million Credit Facility made available by the Bank of Montreal for the purchase of a second ferry to provide service to the TCAA. Motion carried.
Approved. Mr. Henley voted against the motion.
D. The Watson Report [25] On June 25, 2009 the Office of the Conflict of Interest and Ethics Commissioner released a report titled the Watson Report. The Watson Report, which is publicly available, responds to an allegation by Christopher Henley, a member of the Board, that Colin Watson, another Board member was in a potential conflict of interest in participating in matters before the Board relating to a proposal to acquire a new ferry. That participation included the Meeting of which the Minutes are the subject. The Ethics Commissioner concludes that no conflict existed. In reaching this conclusion the Watson Report details many of the issues and circumstances that have been redacted from the Minutes.
[26] A primary issue in this dispute pertains to whether the Watson Report negates the applicability of any of the exemptions to the Minutes, as well as the effect of the Watson Report on the exercise of discretion in the Head of TPA’s refusal to disclose the Minutes in their entirety.
[27] I find that the Watson Report is a credible and detailed document that is focused on the ferry acquisition, and reports on the acquisition process including the December 23, 2008 Meeting. For the reasons provided below, I conclude that the Watson Report does indeed negate the application of some of the ATIA exemptions to portions of the Minutes, and that the nature of the Watson Report was a relevant factor for the purpose of the exercise of discretion pursuant to paragraph 21(1)(b) of the ATIA.
II. Preliminary Matters A. Confidentiality Order [28] Prior to the hearing of this application, Prothonotary Mireille Tabib, acting pursuant to Rules 151 and 152 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] and subsection 47(1) of the ATIA, issued a confidentiality order on July 29, 2014 [the Confidentiality Order] to protect the substance of the information at issue in this matter.
[29] At the outset of the hearing, counsel for the respondent made submissions on the need to proceed in camera for a portion of the hearing. After discussion with the parties, and with the intent of minimally infringing on the open Court principle, the Court heard those submissions requiring an examination of the Minutes themselves and relating to the application of the ATIA exemptions claimed in camera. The Court also heard some argument relating to the respondent’s consideration of the discretionary exemptions and remedy in camera. The Court heard the majority of the oral submissions in public.
B. Further Submissions Received from the Parties [30] At the hearing of this matter, counsel for the applicant raised the issue of the availability of the paragraph 21(1)(b) exemption to the respondent. Counsel for the respondent objected to the applicant raising this issue, arguing that it was not raised in the Notice of Application or the Memorandum of Fact and Law. The respondent was of the view that in the circumstances it could not properly respond. The applicant was of the view that the issue was directly tied to the respondent’s prematurity argument and as such was a matter that was properly before the Court.
[31] Counsel for the respondent agreed that an opportunity to provide post-hearing submissions may address the concern. I therefore heard the applicant’s oral arguments on the issue, and the respondent’s brief oral response. The Court received additional written submissions from the respondent on October 30, 2015 and a reply from the applicant on November 6, 2015.
[32] In the further written submissions the respondent maintains its objection to the Commissioner pursuing the argument that TPA is barred from relying on the 21(1)(b) exemption. The respondent submits that the opportunity to provide further submissions does not correct the evidentiary prejudice it has suffered as a result of not having the opportunity to introduce evidence relating to the exchanges between the OIC and TPA in the period before and after TPA made the paragraph 21(1)(b) refusal. Those submissions also argue that even if the applicant could raise this new argument in oral submissions, the argument is of little effect as the applicant never raised this issue at any time during the OIC’s process including in the Final Report when the Commissioner concluded TPA did not meet its burden of justifying its refusal under paragraph 21(1)(b) of the ATIA.
[33] I am satisfied that the 21(1)(b) exemption was available to TPA for the reasons set out below.
C. Minutes and Relevant Legislation [34] The Minutes are reproduced in full at Appendix A. Relevant extracts from the ATIA, the Marine Act, and the Port Authorities Management Regulations, SOR/99-101 are reproduced at Appendix B.
III. Issues [35] The Commissioner argues that TPA has failed to prove that the information redacted from the Minutes is exempt under the ATIA and that the Head of the TPA did not reasonably exercise his discretion in October, 2013 when determining that the Minutes would not be released in their entirety. The Commissioner further argues that TPA cannot rely on the exemption under paragraph 21(1)(b) of the ATIA because TPA failed to claim it prior to the issuance of the Commissioner’s Subsection 37(1) Recommendation on September 12, 2013.
[36] TPA argues the entirety of the Minutes is exempt from disclosure based on the exemptions identified, individually or in combination, and that the Head of TPA reasonably exercised his discretion in disclosing the Redacted Minutes to the Requester. TPA further argues that the Commissioner prematurely brought this application for judicial review as the Commissioner did not pursue any investigation of TPA’s reliance on the paragraph 21(1)(b) exemption.
[37] In order to determine whether or not the Minutes should be made available to the Requester in their entirety, it is necessary that the Court consider and determine the following issues:
(1) What is the applicable standard of review?
(2) Is the application for judicial review premature? This requires consideration of two sub-issues:
i) Was TPA in a position to claim an additional basis for exemption under paragraph 21(1)(b) after receiving the Commissioner’s Subsection 37(1) Recommendation on September 12, 2013; and
ii) Was the OIC obligated to further investigate or engage with the Requester as a result of TPA’s claim of the paragraph 21(1)(b) exemption after receiving the Subsection 37(1) Recommendation?
(3) Do the exemptions TPA has claimed under paragraphs 18(a), 18(b), 20(1)(b), 20(1)(d) and/or 21(1)(b) apply to the Minutes?
(4) If the discretionary exemptions under paragraphs 18(a), 18(b) and/or 21(1)(b) apply to any part of the Minutes:
i) Which party has the burden of demonstrating whether the Head of TPA reasonably exercised his discretion in deciding not to disclose redacted portions of the Minutes; and
ii) Did such a reasonable exercise of discretion occur in this case?
(5) If the Court determines that the application should be allowed in full or in part, what is the appropriate remedy?
IV. Overview of the ATIA [38] Prior to addressing the issues raised, an overview of the ATIA’s purpose and the jurisprudence interpreting the right to access records, the role of exemptions and the option to sever a record will be helpful.
[39] In Merck Frosst Canada Ltd v Canada (Health), [2012] 1 SCR 23 at paras 21-22 [Merck], Justice Cromwell for the majority of the Supreme Court of Canada set out that Court’s jurisprudence on the purpose of the ATIA:
[21] The purpose of the Act is to provide a right of access to information in records under the control of a government institution. The Act has three guiding principles: first, that government information should be available to the public; second, that necessary exceptions to the right of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewed independently of government (s. 2(1)).
[22] In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 61, La Forest J. (dissenting but not on this point) underlined that the overarching purpose of the Act is to facilitate democracy and that it does this in two related ways: by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and officials may be held meaningfully to account to the public. This purpose was reiterated by the Court very recently, in the context of Ontario's access to information legislation, in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815. The Court noted, at para. 1, that access to information legislation "can increase transparency in government, contribute to an informed public, and enhance an open and democratic society". Thus, access to information legislation is intended to facilitate one of the foundations of our society, democracy. The legislation must be given a broad and purposive interpretation, and due account must be taken of s. 4(1), that the Act is to apply notwithstanding the provision of any other Act of Parliament.
[40] The Court adopts a broad interpretation of the right of access under subsection 4(1) of the ATIA because it “may be considered quasi-constitutional in nature” (Canada (Information Commissioner) v Canada (Minister of National Defence), [2011] 2 SCR 306 at para 40). The Supreme Court of Canada has held that while paragraph 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to information, “Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government” (Ontario (Public Safety and Security) v Criminal Lawyers’ Association, [2010] 1 SCR 815 at para 30 [Criminal Lawyers’ Association]).
A. Right of Access, Exemptions & Severance [41] The ATIA, specifically subsection 4(1) provides a broad “right of timely access” (Statham v Canadian Broadcasting Corp, 2010 FCA 315 at para 1, 326 DLR (4th) 228, [Statham]) to any record under the control of a government institution, subject to “a number of exemptions from the general rule of disclosure” (Merck at paras 24, 96). Hence “The interpretation of a statutory exception in the Act must respect the purpose of the Act as stated in subsection 2(1) while at the same time give effect to the purpose of the exception. The right of the public to know the workings of government is not absolute. It must yield to the values sought to be protected by the statutory exceptions” (3430901 Canada Inc v Canada (Minister of Industry), [1999] FCJ No 1859 at para 44, 177 FTR 161 (TD) [Telezone FC]).
[42] Yet “When it is remembered that subs. 4(1) of the Act confers upon every Canadian citizen and permanent resident of Canada a general right to access and that the exemptions to that general rule must be limited and specific, I think it clear that Parliament intended the exemptions to be interpreted strictly” (Rubin v Canada (Canada Mortgage and Housing Corp), [1988] FCJ No 610 at para 25, 52 DLR (4th) 671 (CA), [Rubin]). Those exemptions exist from sections 13 to 24 of the ATIA, and as determined by the Supreme Court of Canada in Merck at paragraph 97:
[97] They may be categorized according to whether they are class- or harm-based exemptions and according to whether they are mandatory or discretionary. Where there is a class exemption, the exemption applies to all records determined to fall into that class of record. However, a harm-based exemption applies only if the specified harm or risk of harm is present. Some exemptions are mandatory: once the record has been shown to fall within the exemption, the head of the institution has no discretion and must refuse to disclose it, subject only to any applicable override, such as the one found in s. 20(6), a topic not in issue here. Other exemptions are discretionary: once there has been an initial determination that the record falls within the statutory exemption, the head has discretion as to whether or not disclosure will be refused or granted.
[43] The subsection 20(1) exemption for third party confidential information is mandatory, in that “if the record falls within the exemption, the head must refuse to disclose it (putting aside the s. 20(6) public interest override)” (Merck at paras 24, 98). By contrast the exemptions under paragraphs 18(a) and 18(b) and 21(1)(b) are discretionary.
[44] However, regarding subsection 20(1) “The duty not to disclose these sorts of third party information must be read with s. 25 of the Act, which may be called the severance provision. It requires the institution to disclose any part of a record that does not contain material which the institution is authorized not to disclose and which can reasonably be severed from any part that does contain exempted material” (Merck at para 25). Therefore, “the general right of access is subject to a duty on government institutions not to disclose these types of third party information, including information that would normally be subject to disclosure, but cannot reasonably be severed from the exempted third party information” (Merck at para 26). The severance provision under section 25 applies to all exemptions, mandatory and discretionary (Canadian Council of Christian Charities v Canada (Minister of Finance), [1999] FCJ No 771 at para 20, 168 FTR 49 (TD) [Canadian Council of Christian Charities]).
V. Standard of Review [45] The parties do not dispute the applicable standard of review: “The question whether the claimed exemptions apply is reviewed on the basis of correctness. The question of whether the discretion was properly exercised is reviewed on the basis of reasonableness” (Canada (Information Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104 at para 18, 360 DLR (4th) 176 [Minister of Public Safety and Emergency Preparedness]). When the Court reviews whether the information falls within an exemption under the ATIA, it does so de novo; but a de novo review does not apply to the exercise of discretion question (Canada (Information Commissioner) v Canada (Minister of Industry), 2001 FCA 254 at para 85, 45 Admin LR (3d) 182 [Telezone FCA], Ucanu Manufacturing Corp v Defence Construction Canada, 2015 FC 1001 at para 45 [Ucanu]).
VI. Prematurity [46] The jurisprudence relating to the complaint process and the steps that must be exhausted prior to seeking judicial review are discussed below. In this case however, the question of prematurity is bound up with the question of whether TPA failed to invoke the paragraph 21(1)(b) exemption in a timely manner and, if it did not, does the exemption remain available to TPA.
A. The Complaint and Investigation Process under the ATIA [47] Based on the general right of access, an individual can make a request to a government institution for access to any record under its control (Subsection 4(1)). Where such a request is made, the government institution is obligated to; (1) make every reasonable effort to assist the requester; (2) respond to the request accurately and completely; and (3) provide timely access to the record in the format requested subject to the regulations (Subsection 4(2.1)). Furthermore, the government institution must also give written notice to the requester as to whether or not it will give access to the record or a part thereof (Paragraph 7(a)). If the government institution determines that the record requested is exempt under a provision in the ATIA and refuses access on that basis it must state the specific provision on which it based the refusal (Paragraph 10(1)(b)). Upon receiving a refusal, a requester can, within sixty days of receiving the notice of refusal, complain to the Commissioner in writing (Section 31). Once the Commissioner receives the complaint she must, subject to the ATIA, investigate (Paragraph 30(1)(a)).
[48] In the context of discussing a deemed refusal, not the issue in this case, to give access to a record under subsection 10(3) of the ATIA, Justice Desjardins in Canada (Information Commissioner) v Canada (Minister of National Defence), [1999] FCJ No 522 at para 20, 240 NR 244 (CA) [National Defence] explained the investigation process under the ATIA:
[20] The Commissioner may then initiate a complaint under section 30 of the Act. He notifies the head of the institution (section 32). He conducts the investigation, in the course of which the institution is given a reasonable opportunity to make representations (subsection 35(2)) and for the purposes of which the Commissioner has extraordinary powers (section 36), including the power to summon and enforce the appearance of persons in the same manner and to the same extent as a superior court of record (paragraph 36(1)(a)), to enter any premises occupied by the government institution (paragraph 36(1)(d)) and to examine any record, as no record may be withheld from him on any grounds (subsection 36(2)). He provides the head of the institution with a report containing his findings and recommendations (paragraph 37(1)(a)). He may specify the time within which the head is to give him notice of any action taken or proposed to be taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (paragraph 37(1)(b)); and reports the findings of his investigation to the complainant (subsection 37(2)), but where a notice has been requested under paragraph 37(1)(b)) no report shall be made until the expiration of the time within which the notice is to be given to the Commissioner.
[49] Justice Desjardins also noted that the Commissioner “is the master of his procedure pursuant to section 34 of the Act” (National Defence at para 21).
B. How & When Can an Application for Judicial Review be Brought under the ATIA? [50] Sections 41 and 42 allow for the bringing of applications for judicial review against a government institution that has refused access to a record.
[51] At paragraphs 31 to 32 in Lukacs v Natural Sciences and Engineering Research Council of Canada, 2015 FC 267, 472 FTR 157 [Lukacs], Justice Anne Mactavish explained the Federal Court of Appeal’s jurisprudence on the conditions an applicant under section 41 of the ATIA must meet before applying to the Federal Court for judicial review:
[31] In Statham v. Canadian Broadcasting Corp., 2010 FCA 315 at para. 64, [2012] 2 F.C.R. 421, the Federal Court of Appeal identified three prerequisites that an individual seeking access to information must satisfy before applying to the Federal Court under section 41 of the Act. These are:
1. The applicant must have been "refused access" to a requested record;
2. The applicant must have complained to the OIC about the refusal; and
3. The applicant must have received a report of the OIC under subsection 37(2) of the Act.
[32] As Justice Stratas observed in Whitty v. Canada (Minister of the Environment), 2014 FCA 30, at para. 8, 460 N.R. 372, section 41 of the Act "is a statutory expression of the common law doctrine that, absent exceptional circumstances, all adequate and alternative remedies must be pursued before resorting to an application for judicial review".
[52] An application brought under section 41 not meeting these conditions would be premature.
[53] Paragraph 42(1)(a) allows the Commissioner to apply for judicial review of any refusal to disclose a record under the ATIA or part thereof in respect of an investigation carried out if the Commissioner has the consent of the requester. The Commissioner brought this judicial review application pursuant to that provision.
C. Is the Application Premature? [54] The respondent submits that the application is premature: TPA did not refuse to disclose further redacted portions of the Minutes as the Requester asked in his November, 2013 correspondence with the OIC, rather the OIC failed to ask TPA to disclose further redacted portions of the Minutes. The Requester took the position, after the release of the Redacted Minutes by TPA, that too much of the information had been redacted; the Requester did not, as the OIC presumed, take the position that the entirety of the Minutes needed to be disclosed. TPA submits that the OIC did not provide TPA with the opportunity to address the Requester’s concern with redacted portions of the Minutes, but instead prematurely proceeded with this application on the mistaken belief that the Requester was seeking disclosure of the Minutes in their entirety.
[55] As a result, TPA argues that there was no refusal to release further information and that the OIC did not seek submissions from TPA in relation to the paragraph 21(1)(b) exemption prior to providing its Final Report to the Requester. Instead the Commissioner simply concluded that the paragraph 21(1)(b) exemption was not justified and the entire Minutes should be disclosed. TPA argues that in doing so the Commissioner failed to exhaust the informal methods of resolving the dispute arising from the Requester’s concern. I respectfully disagree.
[56] In Luckacs, Justice Mactavish considered the propriety of a government institution amending its grounds for refusing access to a document once a complaint has been filed with the OIC. Justice Mactavish considered Tolmie v Canada (Attorney General), [1997] FCJ No 1417 (TD) where Justice McGillis concluded that on the facts of the case the government institution was entitled to raise an additional ground during the course of the OIC investigation. Justice Mactavish goes on to then state at paragraph 51 of Lukacs that:
[51] It is thus clear that there is no blanket prohibition on the ability of government institutions to amend the grounds relied upon to justify the refusal of access to documents once a complaint has been filed with the OIC, and that they can amend the grounds of exemptions during the OIC investigative process.
[57] The availability for a respondent to amend the grounds for exemptions claimed during the OIC’s investigative process therefore engages a consideration of the question of whether the investigation is complete at the point the government institution claims a new exemption. The OIC argues that the investigation was complete upon delivery of the Subsection 37(1) Recommendation on September 12, 2013. TPA argues that the investigation was not complete until the Requester was notified of the results of the investigation under subsection 37(2) of the ATIA in the Final Report dated May 12, 2014.
[58] Section 34 of the ATIA vests in the Commissioner the discretion and authority to “determine the procedure to be followed in the performance of any duty or function of the Commissioner under the Act.” The ATIA prescribes requirements for the Commissioner to give notice before commencing an investigation and a reasonable opportunity for representations in the course of an investigation of a complaint to the head of the government institution (Section 32 and paragraph 35(2)(b)) respectively. It also extends certain powers to the Commissioner (Section 36), requires that the Commissioner notify the head of a government institution where it finds a complaint well-founded, and allows the Commissioner to request that the head of the government institution provide reasons where a recommendation will not be implemented (Subsection 37(1)). However, the ATIA does not prescribe when an investigation is complete.
[59] Nowhere in the ATIA does it state that an investigation is complete upon providing the head of the government institution the Commissioner’s recommendations under subsection 37(1) but before providing the requester the final report under subsection 37(2). As discussed earlier, sections 41 and 42 contain the conditions precedent to be met before the requester or the Commissioner can bring an application for judicial review. Section 41 requires the requester receive a report under subsection 37(2) that constitutes the results of the Commissioner’s investigation and paragraph 42(1)(a) requires that the Commissioner have carried out the investigation. However, neither provision specifies whether the investigation was carried out or complete after the Commissioner provides a report to the head of the government institution pursuant to subsection 37(1) but before providing the investigation report to the requester under subsection 37(2).
[60] The case-law also supports the proposition that the ATIA lacks a firm rule on when a government institution can no longer claim a new discretionary exemption and by implication when the OIC’s investigation into a complaint is complete. Justice Mactavish held in Lukacs at paragraph 46 that “The jurisprudence has, moreover, established that a government institution can indeed amend the grounds asserted for denying access if it does so before the OIC has reported in relation to an access complaint.”
[61] Justice Richard Southcott in Ucanu at paragraph 85 referred to this principle: “The Court’s recent decision in Lukacs v Natural Sciences and Engineering Research Council of Canada, 2015 FC 267 has clarified that a government institution is permitted to amend its grounds for refusal after a complaint has been filed with the Information Commissioner and while it remains under investigation by the Information Commissioner.”
[62] Some might call this a loophole, but in my view the ATIA does not create a specific timeline for when an investigation is complete because of the preference to leave the decision regarding timelines in the hands of the Commissioner provided that the Commissioner complies with the mandatory requirements in the ATIA such as giving the head of the government institution a reasonable opportunity to make representations during the investigation: “The investigation the Commissioner must conduct is the cornerstone of the access to information system. It represents an informal method of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power to make recommendations to the institution involved” (National Defence at para 27).
[63] Therefore, subject to meeting the mandatory requirements of the ATIA, Parliament has vested in the Commissioner the discretion to determine the procedure to follow when investigating a complaint under the ATIA, including the completion of the investigation. When there is a dispute, as is the case here, the Court will consider all of the circumstances of the particular case both subjective and objective. As such, while I am not prepared to conclude that an investigation will never be complete prior to reporting to the complainant under subsection 37(2), the circumstances in this case, including the conduct of the OIC, lead me to conclude that the Commissioner did not view or treat the investigation as complete when delivering the Subsection 37(1) Recommendation to TPA on September 12, 2013.
[64] In reporting to TPA, the Commissioner outlined the results of the investigation and then chose to provide TPA with a period of time to: (1) consider the recommendations made; and (2) in the event TPA did not agree asked that TPA “please provide me with reasons why you will not be taking the recommended action.” The Commissioner did not specify whether TPA could claim new exemptions at that time. Furthermore, the OIC, in communications with the Requester after the delivery of the subsect