Philipps v. Librarian and Archivist of Canada

Philipps v. Librarian and Archivist of Canada
Court (s) Database
Federal Court Decisions
Date
2006-11-14
Neutral citation
2006 FC 1378
File numbers
T-1517-05
Notes
Reported Decision
Decision Content
Date: 20061114
Docket: T-1517-05
Citation: 2006 FC 1378
Ottawa, Ontario, the 14th day of November 2006
Present: the Honourable Mr. Justice Simon Noël
BETWEEN:
Maurice Philipps
Applicant
and
LIBRARIAN AND Archivist OF Canada
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review whereby Mr. Maurice Philipps (the applicant) has challenged a decision by the Librarian and Archivist of Canada (the respondent), the deputy head of Library and Archives Canada (LAC), dated August 8, 2005, which maintained restrictions on access to the fund of Louis M. Bloomfield.
I. Facts
[2] The Louis M. Bloomfield fund (the Bloomfield fund) is a collection of private archives placed in LAC (formerly Archives Canada) between 1979 and 1980 by Louis Mortimer Bloomfield (Mr. Bloomfield), an eminent Montréal lawyer who died in 1984.
[3] In a letter dated February 24, 1978, Mr. Bloomfield laid down as a condition for the transfer of his archives that the documents transferred be kept for a period of twenty years after his death before the material (or any part thereof) was made public. Mr. Bloomfield’s letter reads as follows:
February 24, 1978
Archives Canada,
Ottawa, Ontario
Attention : Lawrence Tapper.
Gentlemen :
The documents which you are taking from me to form a Bloomfield section of the archives are to be held for a period of twenty (20) years after my death before any of this material is made public.
My literary executrix will be my wife Mrs. Justine Stern Bloomfield and she will have access at all times to this material as well as the following persons:
1. Myself
2. My brother Bernard M. Bloomfield
3. XXXX
4. XXXX
Kindly confirm the above understanding,
Yours truly,
Louis M. Bloomfield
(applicant’s record, Affidavit of Maurice Philipps, Exhibit 3)
The names appearing in notes 3 and 4 were initially excluded by LAC for right to privacy reasons.
[4] In the letter Mr. Bloomfield directed that his wife Justine Stern Bloomfield (now Justine Stern Cartier – Mrs. Bloomfield), was to be appointed “literary executrix” and would at all times have access to documents in the Bloomfield fund along with certain other members of his family. In a letter dated July 30, 1979 Mr. Bloomfield specified that no other condition would be attached to the transfer of the Bloomfield fund and he again repeated that the documents were not to be accessible until 20 years after his death, except for the persons mentioned in his letter of February 24, 1978 (applicant’s record, Affidavit of Maurice Philipps, Exhibit 12).
[5] Mr. Bloomfield died on July 19, 1984.
[6] On November 7, 1984, following Mr. Bloomfield’s death, LAC contacted Mrs. Bloomfield to tell her about the terms of the agreement reached between LAC and Mr. Bloomfield regarding the Bloomfield fund. On November 19, 1984 Mrs. Bloomfield replied to the letter and confirmed that she accepted the terms of the agreement. The letter of November 19, 1984 reads as follows:
Mr. Lawrence F. Tapper
Staff Archivist
Ethnic Archives
PUBLIC ARCHIVES
395 Wellington St.
Ottawa, Ontario K1A 0N3
Dear Mr. Tapper,
I received your letter dated November 7, 1984 and further to our telephone conversation of November 16, 1984, as executrix for my husband, Louis M. Bloomfield, I agree that access to the collection of his personal papers (MG 31 E25) be restricted to researchers who have obtained my specific written permission.
This is to be in effect for a period of twenty (20) years from the date of his death – July 19, 1984. Of course we will review this matter again at a future date.
In the event of my absence or incapacity, my sister will act in my stead:
Mrs. Stephanie Glaymon
28 Harbour Lane
Margate, New Jersey 08402
U.S.A.
Tel. No. 609-8224205
I hope that I have answered your questions and that all is clear.
Sincerely yours,
Justine S. Bloomfield
(applicant’s record, Affidavit of Maurice Philipps, Exhibit P-1)
[7] Maurice Philipps learned about the existence of the Bloomfield fund in 1996 through the LAC data base. It mentioned that access to the Bloomfield fund was restricted for a period of 20 years beginning as of July 19, 1984 (applicant’s record, Affidavit of Maurice Philipps, Exhibit X - page 25).
[8] On August 10, 2004 (that is, over 20 years after Mr. Bloomfield’s death), the applicant approached the LAC reference service by e-mail in order to have access to the Bloomfield fund (applicant’s record, Affidavit of Maurice Philipps, page 26, paragraph 29).
[9] On September 3, 2004 Daniel Somers (Mr. Somers) of the LAC reference service replied to the applicant and advised that authorization to consult the Bloomfield fund was still required (applicant’s record, Affidavit of Maurice Philipps, Exhibit 17).
[10] Lawrence Tapper, LAC archivist (Mr. Tapper), received a letter from Mrs. Bloomfield dated August 31, 2004. In that letter Mrs. Bloomfield asked that a new restriction be imposed on access to the Bloomfield fund for a period ending ten years after her own death, the reasons for this extension request being privacy concerns and safeguarding Mr. Bloomfield’s reputation (applicant’s record, Affidavit of Maurice Philipps, Exhibit 19). A decision was made by LAC on September 8, 2004 to extend the period of restriction on access to the fund by ten years after Mrs. Bloomfield’s death.
[11] On January 6, 2005 the applicant sent an e-mail to Mr. Somers at the LAC asking him to confirm that the Bloomfield fund was now open to the public (applicant’s record, Affidavit of Maurice Philipps, Exhibit 22). Subsequently, on January 17, 2005 the applicant wrote Mr. Tapper by e-mail formally requesting access to the Bloomfield fund (applicant’s record, Affidavit of Maurice Philipps, Exhibit 23).
[12] On January 17, 2005 the applicant, in reply to his e-mails, received an e-mail from Normand Laplante (Mr. Laplante), LAC Director of Social and Cultural Archives, who advised him that a new restriction had been imposed: non-access to the Bloomfield fund would be postponed by ten years after Mrs. Bloomfield’s death, at the latter’s request (applicant’s record, Affidavit of Maurice Philipps, Exhibit 24).
[13] On January 18, 2005, in a second e-mail, Mr. Laplante wrote the applicant that control of restrictions on access to the Bloomfield fund was given to the fund’s literary executrix, Mrs. Bloomfield, on Mr. Bloomfield’s death in 1984. Further, Mr. Laplante indicated in his letter that it had been agreed between Mrs. Bloomfield and LAC in 1984 that Mrs. Bloomfield and LAC might subsequently review restrictions on access to the Bloomfield fund (applicant’s record, Affidavit of Maurice Philipps, Exhibit 25).
[14] On January 28, 2005 the applicant wrote the Chief Archivist, Ian E. Wilson, a five-page letter to ask him to review the decision to impose a new restriction on access to the Bloomfield fund and to release the documentation on which the extension of the period of restriction on access was based (applicant’s record, Affidavit of Maurice Philipps, Exhibit 27).
[15] On February 16, 2005 the respondent sent the applicant a reply in which he advised that he had reviewed the decision-making process relating to access to the Bloomfield fund (applicant’s record, Affidavit of Maurice Philipps, Exhibit 28). The respondent repeated what Mr. Laplante had written regarding control of restrictions on access to the Bloomfield fund and, by way of justification, advised that the new restriction on access to the Bloomfield fund resulted from an agreement concluded with Mrs. Bloomfield.
[16] On April 20, 2005, LAC changed the restriction on access to the Bloomfield fund: it would hold for 25 years after Mrs. Bloomfield’s death (applicant’s record, Affidavit of Maurice Philipps, Exhibit 33). The record contains no documentation explaining why this new extension was being imposed. The applicant learned about it subsequently.
[17] On April 25, 2005 the applicant again asked the respondent to review the decision to impose a restriction on access to the Bloomfield fund and to answer several questions relating to certain documents sent to him, but with several passages removed for reasons of privacy protection (applicant’s record, Affidavit of Maurice Philipps, Exhibit 35).
[18] On May 10, 2005 the respondent replied to the applicant that he was examining the arguments raised by the latter in his communication of April 25, 2005 and was considering the possibility of granting him access to the Bloomfield fund (applicant’s record, Affidavit of Maurice Philipps, Exhibit 36).
[19] On August 8, 2005 the respondent notified the applicant by letter (the letter of August 8, 2005) that he was maintaining [translation] “the restrictions” on access to the Bloomfield fund and that the decision was final, as he had reviewed the matter in its entirety and consulted legal services. He wrote the following:
[translation]
In this case, I have reviewed the reasons given in support of an extension and am persuaded that it was fully justified. The access restrictions are accordingly maintained for the period mentioned.
(applicant’s record, Affidavit of Maurice Philipps, Exhibit 37)
[20] The applicant sought judicial review of the respondent’s decision of August 8, 2005.
II. Issues
(1) Did Mrs. Bloomfield, the literary executrix of the Bloomfield fund, have the authority to revise the restrictions on access to the Bloomfield fund?
(2) Was the letter of August 8, 2005 a reviewable decision?
(3) In the affirmative, what standard of review is applicable to the decision in question?
(4) Should the applicant have had access to the Bloomfield fund under the Access to Information Act, the Library and Archives Canada Act or the Cultural Property Export and Import Act?
(5) Did the respondent err in denying the applicant’s initial request for access to the Bloomfield fund?
(6) Did the respondent err in deciding to extend the period of restriction on access to the Bloomfield fund?
III. Analysis
(1) Did Mrs. Bloomfield, the literary executrix of the Bloomfield fund, have the authority to revise the restrictions on access to the Bloomfield fund?
[21] Mr. Bloomfield made a gift of his personal documents to Her Majesty the Queen in two stages (1979 and 1980). His personal documents were valued and a value assigned to them, and the said value could be used for tax purposes. The designated institution that became the owner of the personal documents on their receipt in 1979 and 1980 was the Public Archives of Canada, now known as Library and Archives Canada (applicant’s record, Affidavit of Maurice Philipps, Exhibit 5, 9 and 11).
[22] On February 24, 1978 Louis Bloomfield wrote a letter to LAC telling them that his wife, Mrs. Bloomfield, would be the literary executrix of the Bloomfield fund and that she would have access to the documents along with other persons selected by the donor, and that the restriction on access would hold for a period of 20 years, beginning as of his death (applicant’s record, Affidavit of Maurice Philipps, Exhibit 3). On July 30, 1979 Mr. Bloomfield specified that there would be no other conditions except restriction on access for 20 years and that certain persons would have a right of access as advised in the letter of February 24, 1978 (applicant’s record, Affidavit of Maurice Philipps, Exhibit 12). In a letter of November 19, 1984 to Lawrence Tapper, Mrs. Bloomfield confirmed that she was accepting the role of literary executrix for the Bloomfield fund and that the restriction on access was to hold for 20 years, but that it would be reviewable at a later date: “Of course we will review this matter again at a future date” (applicant’s record, Affidavit of Maurice Philipps, Exhibit P-1).
[23] The applicant submitted that Mr. Bloomfield, an eminent lawyer, had stated clearly in his letter dated July 30, 1979 that no other condition was being attached to the transfer of his documents to LAC. Accordingly, the applicant considered that although Mr. Bloomfield appointed Mrs. Bloomfield as the literary executrix of the Bloomfield fund, she did not have the authority to extend the period of restriction on access to the fund as LAC maintained. The applicant submitted that, as literary executrix, Mrs. Bloomfield only had the authority to give a right of access to the Bloomfield fund during the twenty-year period, a power mentioned in Mr. Bloomfield’s letter of February 24, 1978.
[24] In rebuttal, the respondent argued that the role of literary executrix assigned to Mrs. Bloomfield gave her complete authority to manage the Bloomfield fund, a viewpoint shared by Mrs. Bloomfied in her letter of November 19, 1984.
[25] As mentioned above, the ownership of the documents was transferred to Archives Canada in 1979 and 1980. The clearly expressed intention of the donor was that access to the documents was to be limited to certain persons, including his wife, and that said access restriction would be in effect for a period of 20 years after his death. In the letter of July 30, 1979 he took care to state:
There will be no conditions attached to the deposit other than the original conditions that these documents be made available to the Public only twenty years after my death. In the meantime they shall be available to the persons named in my original letter of instructions which I believe Mr. Tapper had received.
(applicant’s record, Affidavit of Maurice Philipps, Exhibit 12)
[26] In view of the donor’s clear intention, can Mrs. Bloomfield, the literary executrix of the Bloomfield fund, impose additional access restrictions beyond the period specified by the donor, namely 20 years after his death?
[27] As the donor was domiciled in Montréal, Quebec, at the time of the gift, it goes without saying that the rules on gifts set out in the Civil Code of Québec, S.Q. 1991, c. 64, at articles 1806‑1841, are relevant in this case. The provisions relating to wills or mandates may also be of some assistance.
[28] The donor transferred personal documents to LAC in two stages (1979-1980) and at that point there was a transfer of ownership. A limitation may be placed on a gift (see articles 1806 and 1807 of the Civil Code of Québec). In this case, there was such a limitation: access was denied for a period of 20 years. The donor did not provide for any review of that period.
[29] As to the function of literary executrix specified by the donor, she is responsible for controlling access during the restriction period. She cannot have more powers than those given to her by the donor (see the rules on mandate set out in the Civil Code of Québec, at articles 2130‑2185). Her mandate was to expire at the end of the twenty-year period of non-access. If the donor had wished to give her a power to extend the period of non-access, he would have said so, and he did not. On the contrary, the donor stated twice that the period of non-access was 20 years.
[30] In the view of those facts, Mrs. Bloomfield was not given by the donor a general mandate, but rather a special mandate, meant to serve a specific objective. The mandate terminates with the extinction of the power granted by him. Once the term of 20 years is complete, the power of controlling access ends as the donor specified that the restriction was to hold for 20 years and there was no power to extend that period beyond the term indicated by the donor. In Quebec, the case law is clear: in the context of a gift or mandate, as well as a will, the intention of the donor, mandator or testator, respectively, governs (as to mandate, see M.B. v. F.G., 2006 QCCS 3215, at paragraph 19; for gifts and wills, see Denis v. Denis, [1999] J.Q. No. 6363 (Quebec Superior Court), at paragraph 21; and for wills, see Centre hospitalier Baie-des-Chaleurs v. Hayes, 2006 QCCS 4697, at paragraphs 42, 51; Bélanger v. Michaud (Succession de), 2002 IIJCan 18388 (QCCS), at paragraph 14; and Vout v. Hay, [1995] 2 S.C.R. 876, at paragraph 28).
[31] It appears to the Court that, in view of the rules on gifts and mandate in the Civil Code of Québec, when a donor has clearly imposed a condition in connection with a gift, it must be observed unless it is subject to additional conditions, and that is not the case here. Moreover, the donor did not give his literary executrix any general powers apart from that of controlling access to the personal documents during the twenty-year access restriction period. Accordingly, the literary executrix has the powers given to her by the donor. He did not give her that of extending the access restriction period. Accordingly, she cannot exercise a power the donor did not give her.
(2) Was the letter of August 8, 2005 a reviewable decision?
[32] First, the respondent submitted that the letter of August 8, 2005 was not a reviewable decision, but rather a courtesy letter following the e-mail from Mr. Laplante on January 17, 2007, denying the applicant access to the Bloomfield fund. On this point, this Court has clearly held that a courtesy letter written in reply to an application for review or reconsideration is not a decision or an order within the meaning of the Federal Courts Act, R.S.C. 1985, c. F-7, and thus cannot be challenged by way of a judicial review application (Dhaliwal v. Canada (M.C.I.), [1995] F.C.J. No. 982; Moresby Explorers v. Gwaii Haanas National Park Reserve, [2000] A.C.F. no. 1944; Hughes v. Canada, 2004 FC 1055, para. 6). In fact, in Moresby Mr. Justice Pelletier (as he then was) made the following comment (Moresby Explorers, supra, at paragraph 12):
In Dumbrava v. Canada (Minister of Citizenship and Immigration), (1995), 101 F.T.R. 230, [1995] F.C.J. No. 1238, Noel J. (as he then was) reviewed a series of cases dealing with the effect of correspondence with a decision maker after a decision has been made. In those cases, the Court held that a “courtesy response” does not create a new decision from which judicial review may be taken. As it was put by McKeown J. in Dhaliwal v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 982 “ . . . counsel cannot extend the date of decision by writing a letter with the intention of provoking a reply.” Before there is a new decision, subject to judicial review, there must be a fresh exercise of discretion such as a reconsideration of a prior decision on the basis of new facts.
[Emphasis added.]
[33] In this case, I do not view the letter of August 8, 2005 as a courtesy letter. Rather, it appears that, by his letter of May 10, 2005, the respondent decided to review the decision to deny the applicant access to the Bloomfield fund. Accordingly, the respondent, by that letter, decided to use his discretion to review the prior decision to deny the applicant access to the Bloomfield fund. The letter of May 10, 2005 stated:
[translation]
Dear Mr. Philipps:
In view of the arguments made by you in your recent e-mail (on April 25), we have considered your request carefully. The situation is complex. We would like to have a little more time to consider the possibility of granting access to this collection. Rest assured that a reply will be sent to you in the near future.
Yours truly,
Ian E. Wilson, CM, D. Litt.
Librarian and Archivist of Canada
(applicant’s record, Affidavit of Maurice Philipps, page 36)
[34] It can be seen from reading this correspondence and the new documents made since January 17, 2005 (see inter alia applicant’s record, Affidavit of Maurice Philipps: LAC form dated April 20, 2005 extending restriction from 10 to 25 years, Exhibit 33; note by ATIP analyst dated April 25, 2005, Exhibit 34; letter from applicant dated April 25, 2005 seeking new decision in light of new information, Exhibit 36) that the respondent undertook a reassessment of the matter in view of the arguments put forward by the applicant. The respondent accordingly exercised his discretion to make a new decision regarding the restriction on access to the Bloomfield fund. This was confirmed by the letter of August 8, 2005 sent to the applicant by the respondent nearly three months after the respondent had indicated that he was carefully considering the applicant’s access request. In that letter the respondent wrote:
[translation]
Our file/Notre dossier
127106/8310
August 8, 2005
Mr. Maurice Philipps
1-1115, rue St-Georges #1
Longueuil, Quebec
J4K3Z5
Dear Mr. Philipps:
I acknowledge receipt of your e-mail of July 28, 2005 regarding access to the Louis M. Bloomfield fund (MG31E25).
As I indicated to you earlier, Library and Archives Canada is unable to provide access to this fund. After having carefully reviewed the matter in its entirety and consulted our legal services, I have come to the conclusion that the period of restriction on access to this fund has been extended in full compliance with the Act, consistent with the powers granted to Library and Archives Canada by its enabling legislation and in accordance with its standard procedures. I understand your disappointment and would like to assure you that neither the management of this file or your request for access to the fund was dealt with in any arbitrary or discriminatory way.
The standard practice here, when a period of restriction expires, is to contact the donor or his literary executor, usually in response to an access application, to inform them about the expiration of the restriction period and to consult them as to possible circumstances that might require its extension or modification. You may be sure that the public interest and the purpose of this institution to give as wide as possible access to Canada’s documentary heritage are always considered in such discussions. Agreements with donors regarding temporary restrictions are in keeping with this purpose and the public interest in that they allow Library and Archives Canada to acquire for immediate processing significant private archive funds that would otherwise risk not being acquired until much later, thereby delaying their distribution, or even remaining indefinitely unavailable to Canadians.
In this case, I have reviewed the reasons given in support of an extension and am persuaded that it is fully justified. The access restrictions are maintained for the period indicated. They constitute a contractual agreement binding on Library and Archives Canada.
Please note that this decision is final and that this letter is the more detailed reply mentioned in my letter of July 20, 2005.
The only person authorized to lift this restriction and give access to the Bloomfield fund is its literary executrix, and if you wish we can make a request to this effect in your own behalf. If so, please contact in writing Robert McIntosh, Director General, Canadian Archives and Special Collections Branch, 344 Wellington Street, Ottawa, K1A 0N4, [email protected].
Yours truly,
Ian E. Wilson
cc.: Hon. Liza Frulla, Minister of Canadian Heritage
Maka Kotto, M.P., Saint-Lambert
[Emphasis added.]
(applicant’s record, Affidavit of Maurice Philipps, Exhibit 37)
[35] In arriving at this [translation] “final” decision the respondent consulted the record, the documents and the legal branch and concluded that the extension of the restriction period (now 25 years from April 20, 2005) was decided on in full compliance with the Act, consistent with the powers granted to the LAC and in accordance with standard regular procedures.
[36] Based on these facts, I find that the decision of August 8, 2005 by the respondent is reviewable by this Court, in accordance with the principles set out in Moresby, supra. There was a new exercise of discretion based on new facts and it was [translation] “final”.
(3) If so, what standard of review is applicable to the decision in question?
[37] According to the pragmatic and functional test, which was accepted without qualification by the Supreme Court of Canada for determining the standard of judicial review applicable to administrative decisions, the Court must consider four factors: the mechanism of review provided for by the Act; the relative expertise of the decision-making body; the purpose of the Act; the nature of the problem (Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226). In the following paragraphs, I will analyse this case in the light of the factors mentioned in this paragraph.
a. Mechanism of review provided for by the Act
[38] In this case, the Library and Archives of Canada Act, S.C. 2004, c. 11 (the Act), that gives the respondent a discretion to take any action to protect documents in possession of the LAC and to provide all services necessary to give access to Canada’s documentary heritage, is silent as to mechanism of review. This factor is thus inoperative herein.
b. Relative expertise of decision-maker
[39] In this case, the respondent has expertise regarding questions of fact that relate to actions taken to carry out the LAC’s mission. On questions of pure law and mixed questions of law and fact, this Court has greater expertise than the respondent. Therefore, the respondent should be accorded a degree of deference on all questions of fact relating to LAC administration.
c. Purpose of the Act
[40] The Library and Archives of Canada Act and the Guidelines issued pursuant to that Act give the respondent broad discretion to ensure that LAC is able to preserve Canada’s heritage. In accordance with Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 56, a less stringent standard of review is called for and hence, as to this factor, the respondent should be given a higher degree of deference.
d. Nature of the problem
[41] This application for judicial review has two separate aspects: first, it must be determined whether, in her capacity as literary executrix, Mrs. Bloomfield had the authority to restrict access to the Bloomfield fund, and that is a question of law; second, it must be determined whether the respondent erred in denying the applicant access to the Bloomfield fund, and that is a mixed question of fact and law. Therefore, on this factor the respondent should be accorded a lower level of deference.
e. Conclusion
[42] In this case, a pragmatic and functional analysis reveals that the standard of review applicable to the respondent’s decision is that of reasonableness, as the factors in the pragmatic and functional test provide for different degrees of deference. However, the standard of correctness applies to questions of law. Therefore, with respect to 1, 4 and 5, the correctness standard applies and, as to the other questions, the standard of reasonableness.
(4) Should the applicant have had access to the Bloomfield fund under the Access to Information Act, the Library and Archives Canada Act or the Cultural Property Export and Import Act?
(a) Access to fund under Access to Information Act
[43] The Access to Information Act, R.S.C. 1985, c. A-1 (amended in 2004 by sections 22-24 of the Library and Archives of Canada Act) is a complete code of procedure the purpose of which is to safeguard the right of access to documents in the possession of federal institutions (St-Onge v. Canada, (1995) 62 C.P.R. (3d) 303 (F.C.A.), at paragraph 3). Further, the Access to Information Act expressly provides in subsection 68(c) that certain materials placed in the LAC are not subject to the legal provisions set out in the said Act:
68. This Act does not apply to
(c) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature or the National Museum of Science and Technology by or on behalf of persons or organizations other than government institutions.
[Emphasis added]
68. La présente loi ne s’applique pas aux documents suivants :
c) les documents déposés à Bibliothèque et Archives du Canada, au Musée des beaux-arts du Canada, au Musée canadien des civilisations, au Musée canadien de la nature ou au Musée national des sciences et de la technologie par des personnes ou organisations extérieures aux institutions fédérales ou pour ces personnes ou organisations.
[Je souligne]
[44] In enacting subsection 68(c), Parliament intended to treat differently, in the context of access to information, documents that are in the possession of several institutions such as the LAC, if such documents have been placed there by a person or organization other than a government institution.
[45] The Bloomfield fund material is covered by subsection 68(c) of the Access to Information Act. Therefore, the applicant cannot have access to the Bloomfield fund documents under that Act.
(b) Access to the fund under the Library and Archives of Canada Act
[46] The Library and Archives of Canada Act does not address directly private documents placed in the LAC or the terms of access to documents in the LAC’s possession. However, the objective of making documentary heritage available is clearly stated by Parliament in the preamble to the Act:
WHEREAS it is necessary that
(a) the documentary heritage of Canada be preserved for the benefit of present and future generations;
(b) Canada be served by an institution that is a source of enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada as a free and democratic society;
(c) that institution facilitate in Canada cooperation among the communities involved in the acquisition, preservation and diffusion of knowledge; and
(d) that institution serve as the continuing memory of the government of Canada and its institutions . . .
[Emphasis added]
Attendu qu'il est nécessaire :
a) que le patrimoine documentaire du Canada soit préservé pour les générations présentes et futures;
b) que le Canada se dote d'une institution qui soit une source de savoir permanent accessible à tous et qui contribue à l'épanouissement culturel, social et économique de la société libre et démocratique que constitue le Canada;
c) que cette institution puisse faciliter au Canada la concertation des divers milieux intéressés à l'acquisition, à la préservation et à la diffusion du savoir;
d) que cette institution soit la mémoire permanente de l'administration fédérale et de ses institutions . . .
[Je souligne]
[47] In addition, the Library and Archives of Canada Act defines “documentary heritage” in section 2 as follows:
2. The definitions in this section apply in this Act
“documentary heritage” means publications and records of interest to Canada . . .
2. Les définitions qui suivent s'appliquent à la présente loi.
. . .
« patrimoine documentaire » Les publications et les documents qui présentent un intérêt pour le Canada . . .
The documents in the Bloomfield fund may therefore be regarded as part of Canada’s documentary heritage.
[48] Section 5 of the Act provides that the Governor in Council appoints a deputy head of the LAC to hold office during pleasure :
5. (1) The Governor in Council shall appoint an officer, to be called the Librarian and Archivist of Canada, to hold office during pleasure and to have the rank and powers of a deputy head of a department.
5. (1) L'administrateur général, dont le titre est « bibliothécaire et archiviste du Canada » , est nommé, à titre amovible, par le gouverneur en conseil et a rang et pouvoirs d'administrateur général de ministère.
[49] Section 7 of the Act states the objects of the LAC. That section provides inter alia that:
7. The objects of the Library and Archives of Canada are
(a) to acquire and preserve the documentary heritage;
(b) to make that heritage known to Canadians and to anyone with an interest in Canada and to facilitate access to it . . .
[Emphasis added]
7. Bibliothèque et Archives du Canada a pour mission :
a) de constituer et de préserver le patrimoine documentaire;
b) de faire connaître ce patrimoine aux Canadiens et à quiconque s'intéresse au Canada, et de le rendre accessible . . .
[Je souligne]
[50] Section 7 does not specify what means the LAC may use to carry out its objects. Rather, those means are specified in section 8, that defines precisely the powers of the LAC Librarian and Archivist:
8. (1) The Librarian and Archivist may do anything that is conducive to the attainment of the objects of the Library and Archives of Canada, including
(a) acquire publications and records or obtain the care, custody or control of them;
(b) take measures to catalogue, classify, identify, preserve and restore publications and records;
(c) compile and maintain information resources such as a national bibliography and a national union catalogue;
(d) provide information, consultation, research or lending services, as well as any other services for the purpose of facilitating access to the documentary heritage;
(e) establish programs and encourage or organize any activities, including exhibitions, publications and performances, to make known and interpret the documentary heritage;
(f) enter into agreements with other libraries, archives or institutions in and outside Canada;
(g) advise government institutions concerning the management of information produced or used by them and provide services for that purpose;
(h) provide leadership and direction for library services of government institutions;
(i) provide professional, technical and financial support to those involved in the preservation and promotion of the documentary heritage and in providing access to it; and
(j) carry out such other functions as the Governor in Council may specify.
[Emphasis added]
8. (1) L'administrateur général peut prendre toute mesure qui concourt à la réalisation de la mission de Bibliothèque et Archives du Canada et, notamment :
a) acquérir des publications et des documents ou en obtenir la possession, la garde ou la responsabilité;
b) prendre toute mesure de catalogage, de classement, de description, de protection et de restauration des publications et documents;
c) compiler et maintenir des sources d'information et notamment une bibliographie et un catalogue collectif nationaux;
d) fournir des services d'information, de consultation, de recherche et de prêt, ainsi que tous autres services permettant d'avoir accès au patrimoine documentaire;
e) mettre en place des programmes visant à faire connaître et comprendre le patrimoine documentaire et encourager ou organiser des activités - notamment des expositions, des publications et des spectacles - à cette fin;
f) conclure des accords avec d'autres bibliothèques, archives ou institutions au Canada ou à l'étranger;
g) conseiller les institutions fédérales sur la gestion de l'information qu'elles produisent et utilisent et leur fournir des services à cette fin;
h) déterminer les orientations des services bibliothécaires des institutions fédérales et, à cette fin, fixer des lignes directrices;
i) apporter un appui professionnel, technique et financier aux milieux chargés de promouvoir et de préserver le patrimoine documentaire et d'assurer l'accès à celui-ci;
j) s'acquitter de toute autre fonction que lui confie le gouverneur en conseil.
[Je souligne]
[51] As per paragraph 8(1)(h) of the Act, LAC has drawn up guidelines. They are entitled “Guidelines and Procedures for the Establishment and Management of Access Conditions relating to Funds held by Manuscript Division” (the Guidelines); they were issued in 1995. Their purpose is to explain the management of access conditions. Once again, they reflect Parliament’s intent of “facilitating access to” the documentary heritage. It is even stated that access to documents is one of the primary responsibilities of the Public Archives of Canada (now the LAC). However, there is also a very legitimate concern to ensure that the access objective does not prevent the collection of private documents; therefore, donors are consulted in view of establishing access restrictions while taking the needs of researchers into account. Therefore, a balancing process is required in such circumstances. I quote certain passages from the Guidelines:
BASIC PRINCIPLES
The basic principles relating to access conditions in Manuscript Division can be outlined as follows:
1. The Manuscript Division accepts the necessity of access restrictions relating to sensitive private records and recognizes that in many instances our willingness to apply restrictions facilitates the acquisition of private records of national significance.
2. While the Division recognizes the need for access restrictions and its own responsibilities in this area, its ultimate goal is to increase and broaden access whenever possible. For this reason, every effort is made to avoid indefinite restrictions and to make provision for the regular review of restrictions.
3. The identification of access requirements is viewed as an important part of the acquisition and control functions; while the subsequent management of access is an integral part of public service.
4. Archivists are expected to develop access restrictions in consultation with donors, while at the same time meeting the needs of our researchers and fulfilling the Division's responsibilities as defined by the authority/reference documents noted above.
5. Access to private-sector records owned by the Crown and placed in a public institution is viewed as a public service that should to the extent practicable be available equally to all clients (including staff members). Restrictions which apply to one group of researchers, but not to others, should, if possible, be avoided. While donors or their designates may control access for a specific period of time, archivists should work with donors to try and ensure an even-handed approach in the making of access decisions.
[Emphasis added.]
2. ANALYSIS FOLLOWING ARRANGEMENT
More detailed analysis of sensitive material to determine the specific categories involved and the recommended access restrictions. Staff engaged in such an analysis of Cabinet documents and classified information originating with government must be cleared to the appropriate security level.
It is also at this stage that archivists should consult the SNAP file relating to the fonds and review any correspondence or prior agreements that might touch on the issue of access.
[Emphasis added.]
REVIEW, REVISION, AND REMOVAL OF ACCESS RESTRICTIONS
In most instances, material closed or restricted for a specific period of time should be made available to researchers on 1 January of the appropriate anniversary year. For example, files dating from 1965 that are closed for 30 years, should be opened on the first day of 1995. If the material scheduled for opening requires some screening or review, this process should be completed before the anniversary date.
Material closed for an indefinite period (usually as a result of departmental advice) should be reviewed (usually by access-review officers) in a regular 10-year cycle.
Trakker will eventually include a BF system that should be utilized by the Division to ensure that access restrictions are brought forward for updating or revision on a regular basis. When supplying a Trakker access code for a volume of restricted material, archivists should, at the same time, indicate a BF date, when the Custody of Holdings Division will notify Section chiefs that the restrictions applying to a volume should be reviewed. (For material closed or restricted for a specific period, the review date should be a full year before the expiration of the restriction.) Section chiefs will, in turn, assign material for review to archivists.
When access restrictions require revision (but are not entirely removed), the archivist must notify the Custody of Holdings Division of any changes relating to Trakker codes according to the provisions outlined above. The archivist must also create a new, revised RAF following the steps outlined above (see "Creating a Restr