Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)

Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)
Court (s) Database
Federal Court Decisions
Date
2006-04-24
Neutral citation
2006 FC 443
File numbers
T-1941-04
Notes
Digest
Decision Content
Date: 20060424
Docket: T-1941-04
Citation: 2006 FC 443
Ottawa, Ontario, April 24, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
Applicant
and
CHIEF COMMISSIONER, CANADIAN
HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR ORDER AND ORDER
(Confidential Reasons for Order and Order issued on April 5, 2006)
1. Introduction
[1] The Applicant, the Canadian Imperial Bank of Commerce (CIBC), seeks judicial review of the October 26, 2004 decision of the Canadian Human Rights Commission (the Commission), wherein the Commission ordered the disclosure of the "CIBC Employment Equity Compliance Report" (the Final Report) under the Access to Information Act, R.S.C. 1985, c. A-1 (the ATIA). The Applicant brings this review under section 44 of the ATIA.
[2] The Applicant seeks the following relief:
a) an order reversing the Commission's October 26, 2004 decision to disclose the Final Report; and
b) an order that the Commission not disclose the Final Report.
[3] In the alternative, the Applicant seeks:
c) an order that the Commission sever and disclose only part of the Final Report; or
d) an order that the matter be referred back to the Commission for reconsideration.
[4] Finally, the Applicant seeks:
e) an order granting the Applicant costs on a solicitor-client basis; and
f) such further and other relief as this Court deems just.
[5] The materials filed by the parties in their respective records before the Court are subject to the protective order of Prothonotary Roger Lafrenière dated January 21, 2005. At the hearing, the Applicant moved to have the hearing conducted in camera. Upon considering the nature of the information dealt with in this application and the submissions of the parties, and upon the Respondent consenting to the motion, I granted the Applicant's motion and ordered that the hearing be conducted in camera.
2. Factual Background
[6] In June 2000, the Commission informed the Applicant that it would be subject to an employment equity compliance review audit pursuant to the Employment Equity Act, S.C. 1995, c. 44 (the EEA). The Applicant co-operated during the audit, which included responding to questionnaires, disseminating workforce surveys to employees, allowing for on-site visits and interviews with employees, and providing documentary information related to its human resources practices, policies and initiatives.
[7] In November 2002, the Commission received a written request under the ATIA for the release of the "CIBC Interim Employment Equity Report" (the Interim Report). The Commission informed the Applicant of the request and the conditions and timelines for response; the Commission referred the Applicant to paragraphs 20(1)(a), (b), (c) and (d) of the ATIA as the grounds under which a third party could oppose disclosure. Under the ATIA, a third party is a party that is neither the access requester nor the government institution from which the information is being sought for disclosure. Here, the Applicant is the third party.
[8] The Applicant stated its opposition to the release of the Interim Report on the basis of the statutory privilege provided by section 34 of the EEA, and that much of the content in the Interim Report was exempt from disclosure pursuant to paragraph 20(1)(b) of the ATIA as confidential commercial information supplied by the Applicant to the Commission. The Applicant also took the position that any non-exempt portions of the Interim Report could not be reasonably severed from the exempted portions and therefore, nothing in the Interim Report should be disclosed. After a further exchange of correspondence, the Commission informed the Applicant, by letter dated February 13, 2003, that it had decided to withhold the Interim Report in its entirety on the basis of paragraph 20(1)(b) of the ATIA.
[9] On July 9, 2004, the Commission advised the Applicant that a request had been made for access to the Final Report and invited the Applicant to make submissions, again making reference to the section 20 exemption provisions in the ATIA. The Applicant responded in a letter dated August 6, 2004, opposing disclosure of the Final Report on virtually the same grounds as it had challenged release of the Interim Report. The Applicant provided the Commission with a copy of the Final Report highlighted to indicate the passages it considered exempt under paragraph 20(1)(b) of the ATIA.
[10] On October 26, 2004, the Commission informed the Applicant that the Commission intended to disclose the Final Report in its entirety to the access requester.
[11] Two days later, the Commission notified the Applicant that its decision not to release the Interim Report had been based on paragraph 16(1)(c) of the ATIA - that its disclosure may injure a lawful investigation - and not paragraph 20(1)(b) as stated in its February 13, 2003 decision letter.
[12] Pursuant to section 44 of the ATIA, the Applicant filed an application for judicial review of the Commission's decision to release the Final Report.
3. Impugned Decision
[13] The Commission did not provide the Applicant with substantial reasons for its decision to release the Final Report, stating only that:
Based upon the material which you have provided in your letter dated August 6, 2004, we do not have sufficient information to justify exempting the requested record from disclosure pursuant to subsection 20(1)(b) of the Access to Information Act. We now intend to disclose the Compliance Report to the requester.
[14] The Commission informed the Applicant of its right to apply to the Federal Court for review of the Commission's decision, pursuant to section 44 of the ATIA. The Commission stated that if no notice of application for judicial review was filed, then the Commission would release the Final Report to the access requester on November 15, 2004.
4. Legislative Framework
[15] The relevant statutory provisions of the ATIA, the EEA and the Privacy Act, R.S.C. 1985, c. P-21 are appended to these reasons as Schedule "A". Specific statutory provisions will be included where required for ease of reference and clarity. Below, I set out briefly the legislative framework of the ATIA and of the EEA as it pertains to this case.
Access to Information Act
[16] The ATIA codifies the public's right to access information.
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
[17] Subsection 4(1) provides that every Canadian citizen or permanent resident has the right to request access to any record under the control of a government institution. Subsection 2(1) prescribes that exceptions to the right of access be available only in limited and specific circumstances. Section 24 requires the head of a government institution not to disclose any record that contains information the disclosure of which is restricted by a provision of a statute listed in Schedule II of the ATIA.
[18] The ATIA also provides for other mandatory and discretionary exemptions to disclosure. For the purpose of this application, the following mandatory provisions are in play: section 19 and paragraphs 20(1)(b) and 20(1)(c). Section 19 exempts personal information. Paragraph 20(1)(b) exempts confidential commercial, financial, scientific or technical information supplied by a third party to a government institution that has been consistently treated in a confidential manner. Paragraph 20(1)(c) exempts information that could reasonably cause material financial loss to a third party or reasonably harm its competitive position. The only discretionary provision at issue in the present case is paragraph 16(1)(c), which can be invoked by the head of a government institution in order to safeguard the conduct of lawful investigations.
[19] In affirming that exceptions to the right of access must be limited and specific, the Court has held that that right should not be frustrated except in the clearest of circumstances: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.). A heavy burden of persuasion rests upon the party resisting disclosure: Rubin v. Canada(Minister of Transport), [1998] 2 F.C. 430 (C.A.). The standard of proof to be applied in determining whether information falls within one of the mandatory exemptions under section 20 of the ATIA is the civil standard; that is, proof on a balance of probabilities: Pricewaterhouse Cooper, LLP. v. Canada(Minister of Canadian Heritage), 2002 FCA 406. The same standard of proof is applicable to exemptions under section 19 of the ATIA.
[20] Even if some information in a record is found to be exempt, the remainder of the record may still be disclosed. Section 25 of the ATIA requires the head of a government institution to disclose the non-exempted information in a record if that information "can reasonably be severed" from the exempted information.
Employment Equity Act
[21] The purpose of the EEA is to ensure equal representation in the workplace of persons who fall within the four designated groups - women, Aboriginal peoples, persons with disabilities, and visible minorities. The EEA is applicable to certain private sector employers such as the Applicant, which is a federally regulated bank. Section 5 requires an employer subject to the EEA to complete an analysis of its workforce in order to identify areas where designated group members are under-represented and to identify barriers that contribute to these representation gaps. As well, the EEA requires employers to implement an employment equity plan to remove these barriers and ensure reasonable progress towards full representation.
[22] Pursuant to its mandate under section 22, the Commission may initiate an employment equity compliance review audit on any employer subject to the EEA. Subsection 34(1) provides that information obtained by the Commission from employers during an audit is privileged and shall not knowingly be communicated, disclosed or made available without the written consent of the person from whom it was obtained. Subsection 9(3) also requires an employer to keep confidential any information provided to it by employees; the employer can only use the information for the purpose of implementing its obligations under the EEA.
[23] Aside from making reasonable efforts to comply with the compliance review audit, section 18 of the EEA requires a private sector employer to report annually to the Minister of Human Resources and Skills Development (the Minister) on its progress in achieving employment equity. In so doing, the employer must file information in the following prescribed manner and form:
18. (1) Every private sector employer shall, on or before June 1 in each year, file with the Minister a report in respect of the immediately preceding calendar year containing information in accordance with prescribed instructions, indicating, in the prescribed manner and form,
(a) the industrial sector in which its employees are employed, the location of the employer and its employees, the number of its employees and the number of those employees who are members of designated groups;
(b) the occupational groups in which its employees are employed and the degree of representation of persons who are members of designated groups in each occupational group;
(c) the salary ranges of its employees and the degree of representation of persons who are members of designated groups in each range and in each prescribed subdivision of the range; and
(d) the number of its employees hired, promoted and terminated and the degree of representation in those numbers of persons who are members of designated groups.
[...]
(6) An employer shall include in a report a description of
(a) the measures taken by the employer during the reporting period to implement employment equity and the results achieved; and
(b) the consultations between the employer and its employees' representatives during the reporting period concerning the implementation of employment equity.
18. (1) Au plus tard le 1er juin de chaque année, l'employeur du secteur privé dépose auprès du ministre, pour l'année civile précédente, un rapport comportant les renseignements conformes aux instructions réglementaires, et établi en la forme et selon les modalités réglementaires, qui donne les renseignements suivants :
a) les branches d'activité de ses salariés, le lieu de son établissement et le lieu de travail de ses salariés, le nombre de ceux-ci et celui des membres des groupes désignés qui en font partie;
b) les catégories professionnelles qui composent son personnel et la représentation des membres de ces groupes dans chacune d'elles;
c) les échelles de rémunération de ses salariés et la représentation des membres de ces groupes figurant à chacune d'elles ou à chacun de leurs échelons réglementaires;
d) le nombre des recrutements, des avancements et des cessations de fonctions ainsi que, dans chaque cas, la représentation des membres des mêmes groupes.
[...]
(6) L'employeur ajoute dans son rapport les éléments suivants :
a) l'énoncé des mesures prises en vue de réaliser l'équité en matière d'emploi et les résultats obtenus;
b) le compte rendu des consultations tenues avec les représentants en vue de réaliser l'équité en matière d'emploi.
Section 19 of the EEA provides that the employment equity annual reports submitted by private sector employers shall be made available for public inspection at a designated place by any person for a prescribed fee.
5. Issues
[24] After having reviewed the submissions of the parties, I would state the issues raised in this application as follows:
1) Is the Commission's decision void because no written request was made for access to the Final Report?
2) Is the Final Report "under the control" of the Commission and thus subject to the ATIA?
3) Did the Commission breach procedural fairness by failing to provide the Applicant with a meaningful opportunity to participate in the proceeding?
4) Is the information in the Final Report exempt from disclosure under paragraph 16(1)(c) of the ATIA?
5) Is information in the Final Report exempt from disclosure under paragraph 20(1)(b) of the ATIA?
6) Is information in the Final Report exempt from disclosure under paragraph 20(1)(c) of the ATIA?
7) Is information in the Final Report exempt from disclosure under section 19 of the ATIA?
8) If any part of the Final Report is exempted, can the non-exempt information be reasonably severed and disclosed?
9) Is the Applicant entitled to costs on a solicitor-client basis?
6. Standard of Review
[25] The Applicant submits, and the Respondent agrees, that reviews initiated under section 44 of the ATIA are to be conducted de novo. The Applicant refers to Blood Band v. Canada(Minister of Indian Affairs and Northern Development), 2003 FC 1397, wherein at paragraph 46, Justice François Lemieux describes the role of the Court in conducting a hearing de novo:
When conducting a review de novo, the task of the Court is not to satisfy itself that the tribunal, here the respondent, through its Access Coordinator, committed an error but rather to arrive at its own conclusions based on the evidence adduced (see Canadian National Railways Co. and Canadian Pacific Ltd. v. Canada (1993), 62 F.T.R. 150 (F.C.T.D.), in connection with an appeal de novo [...]. If it is appropriate to talk about the standard of review in these circumstances, that standard would be the standard of correctness. (Citations omitted.) (Emphasis in original.)
[26] In stating that an application under section 44 involves a new and independent review of the question of access to the requested information, Justice Lemieux drew from Air Atonabee Ltd. v. Canada(Minister of Transport), [1989] 37 Admin. L.R. 245 (F.C.T.D.). In that case, Justice Andrew MacKay stated at pages 265 to 266:
That the Court should undertake a review of the records in issue and determine what is exempt from disclosure and what is not, and further what information should be severed from exempt information and then released, may well be an onerous task in some cases. Nevertheless, it is consistent with the role which implicitly Parliament has established for the Court under the Act. [...]
The role of the Court, to conduct a "review of the matter" de novo, including examination document by document of the records proposed to be disclosed which the applicant third party seeks to have prohibited from disclosure, does not seem to have been thoroughly discussed previously, perhaps because it has been seen to be so obvious in previous cases that no issue was raised about it. [...] In light of the jurisprudence evolving in relation to the Act there can no longer be doubt that upon application for review, the Court's function is to consider the matter de novo including, if necessary, a detailed review of the records in issue document by document.
[27] Section 44 of the ATIA does not expressly prescribe that a review be conducted as a de novo hearing or on the basis of a particular standard. Subsection 44(1) provides that:
44. (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.
44. (1) Le tiers que le responsable d'une institution fédérale est tenu, en vertu de l'alinéa 28(1)b) ou du paragraphe 29(1), d'avise de la communication totale ou partielle d'un document peut, dans le vingt jours suivant la transmission de l'avis, exercer un recours en révision devant la Cour.
However, subsection 2(1) of the ATIA makes clear that decisions regarding the disclosure of government information are to be reviewed independently of government. That prescription connotes a review by the Court more in line with a de novo hearing or at least a less deferential standard of review.
[28] The jurisprudence has established the different questions to be considered by the Court in reviewing decisions made in respect of the mandatory and the discretionary exemption provisions of the ATIA: Canadian Jewish Congress v. Canada(Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.). With respect to mandatory exemptions, there is but one question to be considered; namely, the factual determination as to whether the material comes within the description of the exempting provision. If the contested information or record is found to fall within the description set out in the mandatory exemption provision, then the head of the government institution is obligated to refuse disclosure. In the case of discretionary exemptions, there are two decisions to be reviewed by the Court. First, as with mandatory exemptions, the Court must review the record to determine if the head of the government institution erred in making the factual decision as to whether or not the requested information falls within the exempting provision. If the information meets the criteria, the Court must then determine whether the head of the government institution exercised his or her discretion properly.
[29] In Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 ("RCMP") and Wyeth-Ayerst Canada Inc. v. Canada(Attorney General), [2003] F.C.J. No. 916 (QL), the Supreme Court of Canada and the Federal Court of Appeal, respectively, had occasion to consider the applicable standard for reviewing decisions respecting disclosure of government information where a mandatory exemption provision was in play. In RCMP, the RCMP Commissioner had found that some of the information requested was exempt from disclosure by virtue of section 19 of the ATIA. In Wyeth-Ayerst, Health Canadahad determined that information of the third party, Wyeth-Ayerst, did not fall within the exemptions provided under subsection 20(1) of the ATIA. In both cases, the Courts applied the pragmatic and functional approach to determine the appropriate standard of review, and held that it was correctness.
[30] In 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, Justice John Evans conducted a pragmatic and functional analysis in determining the appropriate standard for reviewing decisions made pursuant to a discretionary exemption provision under the ATIA. As the Courts in RCMP and Wyeth-Ayerst held, Justice Evans stated that reviewing whether the information falls within the description of the exempting provision is to be considered on a correctness standard. With respect to the second question as to whether the head of the government institution properly exercised discretion, the learned judge held that the applicable standard of review is reasonableness simpliciter. At paragraph 47, Justice Evans summarized the applicable standards of review as follows:
In reviewing the refusal of a head of a government institution to disclose a record, the Court must determine on a standard of correctness whether the record requested falls within an exemption. However, when the Act confers on the head of a government institution a discretion to refuse to disclose an exempted record, the lawfulness of its exercise is reviewed on the grounds normally available in administrative law for the review of administrative discretion, including unreasonableness. I would only note that these conclusions are identical to those of La Forest J. in Dagg [v. Canada(Minister of Finance), [1997] 2 S.C.R. 403], without conducting a functional or pragmatic analysis.
[31] With respect to the Commission's decision in this case to disclose the Final Report despite the objection of the Applicant under paragraph 20(1)(b) of the ATIA, I will apply the standard of correctness as I see no reasons to vary from the pronouncements of the Supreme Court of Canada and the Federal Court of Appeal.
[32] I note that in this application for judicial review, the Applicant has raised additional grounds for objecting to disclosure of the Final Report which it had not addressed in its submissions to the Commission; namely, paragraph 16(1)(c), section 19 and paragraph 20(1)(c) of the ATIA. The Respondent did not take issue with the Court considering these grounds. Both parties have also adduced new evidence in support of their respective positions in this application, and have not objected to the opposing party's evidence. In these circumstances, in respect of these additional grounds for objecting to disclosure, I will conduct a hearing de novo. I will therefore consider the new evidence adduced and the arguments advanced by the parties.
7. The Final Report
[33] The record in question in this case - the Final Report dated April 19, 2004 - was written by a Compliance Review Officer (the CRO) with the Commission and comprises 39 pages and four appendices. The Final Report is the end result of the employment equity compliance review audit conducted by the Commission in relation to the Applicant.
[34] In his affidavit sworn February 25, 2005, Rhys Phillips, Director of Policy and Legislation in the Employment Equity, Policy, Outreach and Communications Branch at the Commission, sets out the standard process used by the Commission in conducting an employment equity compliance review audit. The process as stated by Mr. Phillips in his affidavit can be summarized as follows:
- the employer is notified by the Commission of the upcoming compliance review audit;
- the CRO conducts research to gather publicly available information in respect of the employer;
- the employer is given a copy of the Commission's document, "Framework for Compliance Audits under the Employment Equity Act", which sets out the audit process and assessment factors and includes a copy of the Employment Equity Audit - Questionnaire (the Questionnaire);
- an audit plan is developed by the CRO and the employer;
- the employer is asked to complete the Questionnaire and provide substantiating documents, including the employer's employment equity plan, self-identification survey package, workforce analysis, and policies and procedures related to such matters as accommodation and harassment;
- based upon the results of the Questionnaire and the documentary information, the CRO conducts a preliminary analysis of the employment equity status of the employer;
- the Commission conducts on-site verification visits, during which the CRO interviews selected employees and may ask to review additional documentation;
- the CRO writes an Interim Report if the employer is not in full compliance with the requirements of the EEA, noting the areas of non-compliance and required undertakings by the employer, or a Final Report if the employer is in full compliance;
- where an Interim Report is issued and undertakings are given by the employer, the CRO conducts follow-up auditing of the efforts made by the employer to address the areas of non-compliance; and
- where a Final Report is issued, the audit is closed and the CRO returns all the employer's materials not required for monitoring purposes.
Nothing in the evidence or in the submissions of the parties indicates that the Commission's standard process was not followed in conducting the employment equity compliance review audit in respect of the Applicant.
[35] The Final Report in this case includes information about the purpose and methodology of the Commission's employment equity compliance review audit, and the process undertaken in auditing the Applicant. The bulk of the Final Report is structured around the 12 requirements emanating from the EEA. Specifically, the EEA requires an employer to:
1) conduct a self-identification workforce survey and maintain a system to store and protect data (Workforce Survey and Data Systems);
2) complete a workforce analysis in order to determine the degree of under-representation of designated groups in each occupational group (Workforce Analysis);
3) review its employment systems, policies and practices to identity barriers to equal representation (Employment Systems Review);
4) specify in its employment equity plan short-term measures to be implemented to remove the barriers identified (Elimination of Barriers);
5) include provisions in its employment equity plan for the "reasonable" accommodation of employees' needs (Accommodation);
6) include positive policies and practices in its employment equity plan (Positive Policies and Practices);
7) develop short-term goals for the recruitment and promotion of designated group members in each occupational group in which they are under-represented (Hiring and Promotion Goals);
8) develop longer-term goals for increasing designated group representation in the employer's workforce (Representation Levels);
9) monitor the implementation of its employment equity plan (Monitoring, Review and Revision of Plan);
10) provide information to employees on an ongoing basis about the purpose of employment equity and steps taken by the employer to implement its employment equity program (Information to Employees);
11) consult with employee and union representatives on the development, implementation and revision of the employer's employment equity plan (Consultation); and
12) maintain records in key activities concerning employment equity (Maintenance of Records).
Under each of these headings, the CRO provided her assessment related to the Applicant's compliance in respect to each of the requirements under the EEA. The Final Report documents the CRO's findings related to the Applicant's compliance upon her preliminary analysis, the undertakings negotiated with the Applicant with respect to matters raised in the Interim Report, the steps taken by the Applicant where required in moving towards full compliance, the Applicant's compliance at the time of the Final Report, and the commitments made by the Applicant towards achieving greater compliance with the EEA.
8. Analysis
ISSUE 1: Is the Commission's decision void because no written request was made for access to the Final Report?
[36] While section 6 of the ATIA requires that an access request be made in writing, in my view, the primary purpose of the section is to ensure the request be sufficiently detailed so as to allow the institution to readily identify the record. Section 6 provides as follows:
6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record.
6. La demande de communication d'un document se fait par écrit auprès de l'institution fédérale dont relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution de trouver le document sans problèmes sérieux.
[37] The Applicant notes that the Commission never received a written request for access to the Final Report; it only received a written request for the Interim Report. As a result, the Applicant asserts that the Commission lacked jurisdiction to release the Final Report. Moreover, the Applicant argues that, having made a final decision not to disclose the Interim Report and having not received a new access request in writing, the Commission was functus officio in respect of the Final Report.
[38] In support of its submission, the Applicant cites Justice Marc Noël in Matol Botanical International Ltd. v. Canada(Minister of National Health and Welfare), [1994] 84 F.T.R. 168 (T.D.), [1994] F.C.J. No. 860 (QL). At paragraphs 34 and 35 of his reasons the learned judge wrote:
[...] Only one decision may be made with respect to an information request, and once it is made the institution in question does not have the discretion to get around it.
This is clear from the scheme of the Act, which sets out a very precise timetable and detailed procedure for processing an information request and with respect to the decision-making process which the institution concerned must follow.
[39] The Respondent does not dispute the fact that the Commission did not receive a written request for the Final Report from the access requester. However, the Respondent notes that the initial request for the Interim Report constitutes a written request, and that the requester made a verbal request, with permission of the Commission, for the Final Report. Although the second request was not in writing, the Respondent asserts that considering it a valid request under section 6 is "in keeping with both the spirit and purpose of the ATIA". The Respondent also argues that the Commission is not functus officio because it reached two separate and distinct decisions based on two separate requests: one for the Interim Report and one for the Final Report.
[40] I agree with the Respondent's arguments on this first issue. The Commission did not commit a reviewable error by accepting the second oral request as sufficient to engage its jurisdiction under the ATIA. It would have been desirable had a second written request been made for the Final Report; however, in my opinion, the requester's failure to comply strictly with section 6 of the ATIA does not render the Commission's decision void. Accepting the oral request in the circumstances satisfies the spirit and purpose of the ATIA, which is to provide - rather than hinder - access to information under the control of government institutions. In any event, even if I were to accept the Applicant's technical argument and determine that the Commission was wrong to proceed as it did, little purpose would be served in finding the error determinative of this application. Such a deficiency could be easily cured by the access requester filing a written request in compliance with the ATIA. In my view, the Commission's decision to proceed on the basis of a verbal request for access to the Final Report was not clearly wrong.
[41] I am also of the view that the Commission was not functus officio regarding its decision to disclose the Final Report. I agree with the Respondent that the Commission rendered two separate and distinct decisions based on two separate and distinct requests. Moreover, I am of the opinion that Matol Botanical, above, is distinguishable. There, the government institution decided to release a record after considering the submissions of the third party, but then later decided to release additional records under the same access request without giving the third party an opportunity to challenge the release of those records. Such circumstances do not arise in this case.
[42] In summary, I therefore find that the Commission's decision is not void by reason that the request for disclosure of the Final Report was not made in writing. I also find that the Commission was not functus officio when it rendered its decision in respect of the Final Report.
ISSUE 2: Is the Final Report "under the control" of the Commission and thus subject to the ATIA?
[43] A person has the right to access "any record under the control of a government institution". Subsection 4(1) of the ATIA provides that:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande :
a) les citoyens canadiens;
b) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés.
[44] There is no dispute that the Commission is a government institution for the purpose of the ATIA. The issue here is whether the Final Report is "under the control of" the Commission. The Applicant argues that it is not because the information in the Final Report was obtained from the Applicant pursuant to section 34 of the EEA. Subsection 34(1) states that:
34. (1) Information obtained by the Commission under this Act is privileged and shall not knowingly be, or be permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained.
34. (1) Les renseignements obtenus par la Commission dans le cadre de la présente loi sont protégés. Nul ne peut sciemment les communiquer ou les laisser communiquer sans l'autorisation écrite de la personne dont ils proviennent.
The Applicant contends that because the Final Report falls within the "statutory privilege" of section 34, it cannot be disclosed without the written consent of the Applicant.
[45] In support of its position, the Applicant cites Andersen Consulting v. Canada,[2001] 2 F.C. 324 (T.D.). In that case, the Court held that because of the implied undertaking rule, the record in question was not under the control of the Crown because its possession was constrained and restricted by law. The implied undertaking rule prohibits the use or disclosure of information obtained in the process of discovery in a civil action for purposes other than that related to that same action.
[46] The Respondent counters that while there is no statutory definition of "control", the jurisprudence suggests that it is sufficient that a record be in the possession of the government institution for that institution to be in control of the record: Canada Post Corporation v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.); aff'd [1995] 2 F.C. 110 (C.A.). The Respondent further notes that not only is the Final Report in the Commission's possession, the Final Report was also written by the Commission in furtherance of its obligations under the EEA.
[47] In my opinion, the Applicant's contention is without merit. First, subsection 4(1) of the ATIA clearly provides that "[...] notwithstanding any other Act of Parliament," the provisions of the ATIA apply. Such language indicates that the provisions of the ATIA take precedence over other statutory provisions restricting disclosure, except for those provisions included in Schedule II of the ATIA. As noted above, section 24 provides a mandatory exemption for information of which disclosure is restricted by a statutory provision specified in Schedule II:
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
24. (1) Le responsable d'une institution fédérale est tenu de refuser la communication de documents contenant des renseignements dont la communication est restreinte en vertu d'une disposition figurant à l'annexe II.
Section 34 of the EEA is not listed in Schedule II. As a result, I am of the opinion that Parliament did not intend section 34 to operate to prevent disclosure of a record that could otherwise be disclosed under the ATIA.
[48] Second, I agree with the Respondent that the jurisprudence supports a broad and purposive approach to construing the meaning of "control" and, in general, it is sufficient that the record be in the possession of the government institution.
[49] Third, I am of the opinion that Andersen Consulting, above, can be distinguished. That case concerned documents disclosed during the course of a trial but which did not, in the end, become part of the public record. The Crown argued that it could not return documents to the plaintiff in light of the Crown's legal obligation to retain them under an implied undertaking and then turn them over to the National Archives of Canada, pursuant to that institution's statute. The Court held that the law imposed a condition on the Crown; namely, that the Crown did not have the option to refuse giving an undertaking and that by accepting the documents the Crown was bound to the Court to deal with them in the way permitted by the undertaking: see Andersen Consulting, at paragraph 17. As a result, the Court held that the requested document was not in the Crown's control.
[50] In my view, Andersen Consulting is not analogous to the circumstances of the instant case. In Andersen Consulting, the Court held that the legal obligation imposed on the Crown by the implied undertaking kept the control over the documents in question out of the Crown's hands. By contrast, in the present case, the legal obligations emanating from the EEA and the ATIA firmly put control over the Final Report into the hands of the Commission. No legal restriction or obligation in the circumstances of this case - namely, section 34 of the EEA - operates to wrest control over the Final Report from the Commission. Put differently, the Commission is not constrained in carrying out its obligations under the ATIA - nor can it be relieved of its obligations - because of the "notwith