Information Commissioner of Canada v. Canada (Minister of Environment)

Information Commissioner of Canada v. Canada (Minister of Environment)
Court (s) Database
Federal Court Decisions
Date
2006-10-17
Neutral citation
2006 FC 1235
File numbers
T-555-05
Notes
Reported Decision
Decision Content
Date: 20061017
Docket: T-555-05
Citation: 2006 FC 1235
Ottawa, Ontario, October 17th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
and
THE MINISTER OF ENVIRONMENT CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for review of the refusal of the Minister of Environment Canada (the Minister) to disclose portions of a Memorandum to Cabinet dated March 1995 regarding Methylcyclopentadienyl Manganese Tricarbonyl (MMT) by reason that the requested records are exempt from disclosure under paragraphs 21(1)(a) and (b) of the Access to Information Act, R.S.C. 1985, c. A-1, (the Access Act). The Minister disclosed pages 11 to 38 and Appendix 1 of the Memorandum to Cabinet except for redactions in portions of nine paragraphs, which are the subject of this application.
[2] A table identifying the specific portions of the Memorandum withheld by the Minister that are the subject of this application (the Disputed Passages) is set out in Appendix “A” to these Reasons.
Facts
[3] The Memorandum to Cabinet consisted of two sections. The first section was a three-page advocacy document in which the sponsoring Minister presented Cabinet with an overview of the issue, together with recommendations, their costs and the principal arguments in support of the recommendations. The second section was called the “Analysis Section”, which presented an objective analysis of the background of the issue, the factors that were considered in arriving at the possible options described, and the cost of implementing each. This “Analysis Section” was previously known as the “Discussion Paper” in a Memorandum to Cabinet.
The requested information
[4] The requested information is the “Analysis Section” or discussion paper that is part of a Memorandum to Cabinet. The discussion paper is confined to pages 11 to 38 and Appendix 1, and it is presented in both official languages. The discussion paper relates to the fuel additive MMT. Cabinet made its decision concerning MMT public on May 19, 1995 when the government introduced Bill C-94, the Manganese-based Fuel Additives Act. Bill C-94 was reintroduced as Bill C-29 on April 22, 1996 and was adopted by Parliament on April 25, 1997 (S.C. 1997, C-11). The purpose of the statute was to prohibit the inter-provincial trade and import for commercial purposes of MMT and gasoline containing MMT.
History of this Access Act request
(a) The Request
[5] On September 16, 1997, Ethyl Canada Inc., through its solicitor, submitted to the Minister a request under section 6 of the Access Act for:
Discussion Papers, the purpose of which is to present background explanations, analyses of problems or policy options to the Queen’s Privy Council for Canada for consideration by the Queen’s Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT).
[6] On October 28, 1997, the Minister identified four records relevant to Ethyl’s request but advised Ethyl that access to all four records would be denied because they constituted “confidences of the Queen’s Privy Council for Canada” (“Cabinet Confidences”) and were therefore excluded from the scope of the Access Act under paragraphs 69(1)(a) and (e).
[7] After the Minister refused to disclose the records, Ethyl complained to the Commissioner. The Commissioner conducted an investigation under section 30 of the Access Act. The Commissioner concluded that a portion of the Memorandum, namely the analysis section, fell within the scope of “discussion paper” material identified in paragraph 69(1)(b) of the Access Act and therefore recommended that the Minister disclose portions of the requested records.
[8] The Minister rejected the Commissioner’s recommendation. The Commissioner then applied to the Federal Court pursuant to paragraph 42(1)(a) of the Access Act for a review of the Minister’s refusal to disclose the requested records.
(b) 1st Federal Court Review in 2001
[9] On April 2, 2001, Mr. Justice Edmond Blanchard allowed the Commissioner’s application for review and issued an Order, as set out in Appendix “B” to these Reasons, requiring the Clerk of the Privy Council (the Clerk) to sever and release portions of the requested records containing background explanations or analyses of problems or policy options: Canada (Information Commissioner) v. Canada (Minister of Environment), [2001] 3 F.C. 514.
[10] On February 7, 2003, the Federal Court of Appeal upheld Justice Blanchard but allowed to a limited extent the appeal by the Minister: Canada (Information Commissioner) v. Canada (Minister of the Environment), 2003 FCA 68. Writing for a unanimous Court, Noël J.A. stated:
¶ 27 I would therefore allow the appeal to the limited extent indicated by these reasons, and vary paragraph 2 of the order given by the Applications Judge as follows:
2. The four documents which both the Minister and the Privy Council Office determined as Cabinet confidences are to be returned for review by the Clerk of the Privy Council to determine:
(a) whether there exists within or appended to the documents a corpus of words the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions, that can be reasonably severed from the documents pursuant to section 25 of the Access Act;
(b) if such severable corpus of words is found to exist by the Clerk of the Privy Council Office, it is hereby ordered that it be severed and released to the applicant subject to any exemption which may be claimed by the head of the government institution.
[11] Justice Blanchard held that section 69 of the Access Act, which provides that the Act does not apply to Cabinet Confidences, did not include the “Analysis Section” of the Memorandum to Cabinet. The historical evidence demonstrated that the government transformed the “Discussion Paper”, which was part of the Memorandum to Cabinet, into the “Analysis Section”. Justice Blanchard held at paragraph 45:
[…] Such a change to the Cabinet paper system could be viewed as an attempt to circumvent the will of Parliament.
Therefore, Justice Blanchard found that the Analysis Section of the Memorandum to Cabinet was subject to the Access Act. This groundbreaking decision was upheld by the Federal Court of Appeal. The Court of Appeal held at paragraph 10 per Noël J.A.:
In considering the evolution of the Cabinet paper system, the Applications Judge found that the type of discussion previously reflected in a separate document identified as a “discussion paper” was, during the period in issue, moved to the “analysis” section of a document referred to as a “memorandum to Cabinet” (or M.C.). He then analysed the words, purpose and intent of Parliament in enacting paragraph 69(3)(b) of the Access Act and paragraph 39(4)(b) of the CEA and concluded that Parliament did not intend to allow Cabinet to circumvent the application of the legislation by merely incorporating one accessible document into another which is not. He held that it was the contents of a document, rather than its title, which ought to govern and attributed the refusal to produce the requested documents to a misapprehension of the legal effect of the relevant legislation.
[12] The part of the decision not upheld was the finding of Justice Blanchard at paragraph 47 that the Analysis Section must be disclosed without reference to any exemptions in the Access Act:
In my opinion, the correct meaning of a “discussion paper” intended in paragraphs. 69(1)(b) and 69(3)(b) of the Access Act is information the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions. If this information exists but is included in a memorandum to Cabinet, the next step is to determine whether this information can be reasonably severed from the
memorandum to Cabinet pursuant to section 25 of the Access Act. If the information can be reasonably severed, it must be released to the public. […]
[Emphasis added]
The Court of Appeal held at paragraph 16 that the Minister (or head of the government institution) must be provided the opportunity to invoke any exemption that might apply to this information under sections 13 to 26 of the Access Act. The Court of Appeal varied the Order of Justice Blanchard to allow the Minister of the Environment in this case the opportunity to consider and claim any exemption that might apply to the analysis section of the Memorandum to Cabinet.
(c) Clerk certifies under the Canada Evidence Act
[13] The Clerk then reviewed the four records and certified that documents #2, #3 and #4 constituted confidences of the Privy Council. Document #1, a 51-page document, is the Memorandum. The Clerk certified that pages 1-10 and 39-51 of the Memorandum consisted of information contained in “a memorandum the purpose of which is to present proposals or recommendations to Council” within the meaning of paragraph 39(2)(a) of the Canada Evidence Act (the CEA).
[14] The Clerk determined that pages 11-38 of the Memorandum and Appendix 1 to the Memorandum (the Analysis Section) contained “a corpus of words the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions.” Accordingly, the Clerk referred the Analysis Section to the Minister for review and invited the Minister to claim any remaining grounds for exempting disclosure under the Access Act as contemplated in the judgment of the Court of Appeal.
(d) 2nd Complaint by the Commissioner and Federal Court Review
[15] On June 2, 2003, the Commissioner initiated another complaint under subsection 30(3) of the Access Act in respect of the Minister’s failure to process the Analysis Section.
[16] On June 20, 2003, the Minister informed the Commissioner and Ethyl of his decision to invoke in respect of portions of the Analysis Section the exemptions provided in subsections 14, 21(1)(a),(b) and (c), and 23 of the Access Act. The Minister provided Ethyl with the portions of the Analysis Section that were not subject to exemptions.
[17] Further to his own complaint, the Commissioner investigated the Minister’s response to Ethyl’s request by examining the exemptions claimed by the Minister and seeking representations from Ethyl and the Minister concerning the application of the exemptions.
[18] On February 20, 2004, the Minister withdrew his reliance on section 14 of the Access Act in respect of paragraphs 37 and 68-79 of the Analysis Section and on paragraph 21(1)(c) of the Access Act in respect of paragraphs 55-106 of the Analysis Section. The Minister maintained his reliance, however, on the exemptions provided in subsections 21(1)(a),(b) and 23 of the Access Act.
[19] On September 30, 2004, the Commissioner completed his investigation of his complaint. The Commissioner concluded that the portions of the Analysis Section withheld under paragraphs 21(1)(a) and (b) were not exempt and recommended that the Minister disclose the corresponding portions of the Analysis Section. The Commissioner also concluded, however, that the Minister properly claimed exemptions under section 23 of the Access Act in respect of other portions of the Analysis Section.
[20] The Minister rejected the Commissioner’s recommendation to disclose additional information. On March 25, 2005, with Ethyl’s consent, the Commissioner applied to this Court for a review of the Minister’s refusal to disclose the Disputed Passages.
Relevant Legislation
[21] The legislation relevant to this application is:
1. the Access to Information Act, R.S.C. 1985, c. A-1; and
2. the Canada Evidence Act, R.S.C. 1985, c. C-5.
The relevant excerpts of these statutes are reproduced at Appendix “C” to these Reasons.
Standard of Review
[22] Before embarking on an analysis of the issues raised in this application, it is necessary to undertake the pragmatic and functional analysis of the appropriate standard of review: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. As stated by Linden J.A. in Sketchley v. Canada (Attorney General), 2005 FCA 404:
¶ 46 …[T]he pragmatic and functional analysis must be undertaken anew by the reviewing Court with respect to each decision of an administrative decision-maker, not merely each general type of decision of a particular decision-maker under a particular provision.
[23] This application raises as issues the interpretation and application of the discretionary exemptions under paragraphs 21(1)(a) and (b) of the Access Act to a particular set of records. If this Court finds that the exemptions apply, the Commissioner additionally calls upon this Court to review the exercise of the Minister’s discretion to refuse disclosure of the Disputed Passages. These are two distinct issues requiring separate analyses of the applicable standard of review.
(i) Standard of review with respect to paragraphs 21(1)(a) and (b): Interpretation and Application
(a) Presence or absence of a privative clause or statutory right of appeal
[24] The first factor is the presence or absence of a privative clause or statutory right of appeal. This factor was assessed by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66. At paragraph 15, Gonthier J. held that the Access Act does not contain a privative clause insulating decisions of heads of government institutions on questions of access to information, and subsections 41 and 42 of that Act provide a statutory right of judicial review of these decisions before the Federal Court. Accordingly, this factor suggests no deference.
(b) Relative expertise
[25] The second factor to consider is the expertise of the decision-maker relative to the Court. The finding under review involves the statutory interpretation by the Minister of the interplay between subsections 21(1)(a), (b) and section 69 of the Access Act. Relative to the reviewing judge, this decision-maker has no expertise in statutory interpretation. The Court is better able to decide questions of law than the Minister. Accordingly, this factor suggests a less deferential review.
(c) Purpose of the legislation
[26] The third factor to consider is the purpose of the applicable legislation, namely the Access Act. In Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), supra, the Supreme Court per Gonthier J. at paragraph 17 determined that the purpose of the Access Act is advanced by adopting a less deferential standard of review.
(d) Nature of the question
[27] The fourth factor to be addressed is the nature of the question: whether it is one of law, fact, or mixed law and fact. The Court will accord greater deference to the head of government’s factual findings, and less deference on questions of legal principle or interpretation. The question in this review involves the statutory interpretation of the interplay of provisions under the Access Act with respect to the Disputed Passages. This is a question of law, which warrants no deference.
(e) Conclusion
[28] Having regard to the four factors, the Minister’s decision to withhold the Disputed Passages on the basis of the exemptions provided in paragraphs 21(1)(a) and (b) should be assessed on the correctness standard.
(ii) Standard of review with respect to the Exercise of Discretion
[29] The Access Act leaves the disclosure of records falling within paragraphs 21(1)(a) or (b) to the discretion of the Minister. The Federal Court of Appeal considered the standard of review applicable to a minister’s exercise of discretion under paragraph 21(1)(a) in 3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421 [Telezone]. At paragraph 45, Evans J.A. stated:
In my opinion, the Minister’s exercise of discretion under paragraph. 21(1)(a) is now also subject to review for unreasonableness. Further, “unreasonableness simpliciter,” not patent unreasonableness, is the relevant variant of rationality review applicable to the discretionary decision in this case. The expertise available to the Minister in making the decision, and his accountability to Parliament, are outweighed by the importance afforded by the Act to the right affected, namely, the public right of access to government records secured by an independent review of refusals to disclose, and by the case-specific nature of the policy decision made.
[Emphasis added]
[30] In my view, Evans J.A.’s analysis is equally applicable to this Court’s review of the Minister’s exercise of discretion under paragraphs 21(1)(a) and (b). I therefore conclude that the Minister’s exercise of discretion should be assessed on the reasonableness standard.
Burden of Proof
[31] Section 48 of the Access Act provides that the government institution concerned bears the burden of establishing that its head is authorized to refuse to disclose a requested record. The parties agree that, as the party attempting to prevent disclosure, the Minister bears the burden of proving the applicability of an exemption to a particular set of records.
[32] The Minister argues, however, that, as the party alleging that discretion has been improperly exercised, the Commissioner bears the burden of proving this allegation. The Minister relies on the Federal Court of Appeal’s judgment in Telezone, supra. At paragraph 99 of that judgment, Evans J.A. concluded that “…the burden of proof was on the appellants to establish that the Minister had failed to exercise according to law the statutory discretion to disclose the documents containing advice and recommendations within the meaning of paragraph 21(1)(a).”
[33] In my view, however, the Supreme Court of Canada’s subsequent judgment in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, disposes of this issue. At paragraph 60, Gonthier J., writing for a unanimous Court, stated the following in relation to the Privacy Act:
As I have said, s. 22(1)(b) is not an absolute exemption clause. The decision of the Commissioner of Official Languages to refuse disclosure under s. 22(1)(b) must be based on concrete reasons that meet the requirements imposed by that paragraph. Parliament has provided that there must be a reasonable expectation of injury in order to refuse to disclose information under that provision. In addition, s. 47 of the Privacy Act provides that the burden of establishing that the discretion was properly exercised is on the government institution. If the government institution is unable to show that its refusal was based on reasonable grounds, the Federal Court may then vary that decision and authorize access to the personal information (s. 49).
[Emphasis changed]
[34] Although Gonthier J.’s statement in Lavigne concerns section 47 of the Privacy Act, the same reasoning applies with equal force to section 48 of the Access Act. As Evans J.A. noted in Telezone, supra, at paragraph 93, “Sections 47 and 48 of the Privacy Act are not materially different from sections 48 and 49 of the [Access Act].”
[35] Accordingly, the Court must be satisfied that the Minister was correct in determining that paragraphs 21(1)(a) or (b) apply in respect of the Disputed Passages and that the Minister’s discretionary refusal to disclose was reasonable.
Issues
[36] The issue is whether the Minister lawfully refused to disclose the Disputed Passages on the basis of the exemption provided in paragraphs 21(1)(a) and (b) of the Access Act. Specifically:
1. Are the Disputed Passages exempt from disclosure under paragraphs 21(1)(a) or (b) of the Access Act?
2. If exempt, did the Minister lawfully exercise his discretion to refuse to disclose the Disputed Passages?
Analysis
Issue No. 1: Are the Disputed Passages exempt from disclosure?
(a) The interplay between section 21 and section 69 of the Access Act
[37] Paragraphs 21(1)(a) and (b) grant the Minister discretion to withhold certain records containing advice provided to the government:
Operations of Government
Advice, etc.
21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,
[…]
if the record came into existence less than twenty years prior to the request.
Activités du gouvernement
Avis, etc.
21. (1) Le responsable d’une institution fédérale peut refuser la communication de documents datés de moins de vingt ans lors de la demande et contenant :
a) des avis ou recommandations élaborés par ou pour une institution fédérale ou un ministre;
b) des comptes rendus de consultations ou délibérations où sont concernés des cadres ou employés d’une institution fédérale, un ministre ou son personnel;
[38] Before considering the specific application of paragraphs 21(1)(a) and (b) to the Disputed Passages, it is necessary to address a preliminary issue raised by the Commissioner concerning the interplay between sections 21 and 69 of the Access Act.
[39] Subsection 69(1) provides that, as a general rule, the Access Act does not apply to Cabinet Confidences. Subsection 69(3) carves out an exception to this rule:
Confidences of the Queen’s Privy Council for Canada
69. (1) This Act does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing,
[…]
(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
Documents confidentiels du Conseil privé de la Reine pour le Canada
69. (1) La présente loi ne s’applique pas aux documents confidentiels du Conseil privé de la Reine pour le Canada, notamment aux:
[…]
b) documents de travail destinés à présenter des problèmes, des analyses ou des options politiques à l’examen du Conseil;
[…]
Exception
(3) Subsection (1) does not apply to
(a) confidences of the Queen’s Privy Council for Canada that have been in existence for more than twenty years; or
(b) discussion papers described in paragraph (1)(b)
(i) if the decisions to which the discussion papers relate have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
[…]
Exception
(3) Le paragraphe (1) ne s’applique pas :
a) aux documents confidentiels du Conseil privé de la Reine pour le Canada dont l’existence remonte à plus de vingt ans;
b) aux documents de travail visés à l’alinéa (1)b), dans les cas où les décisions auxquelles ils se rapportent ont été rendues publiques ou, à défaut de publicité, ont été rendues quatre ans auparavant.
[40] In accordance with the Court of Appeal’s judgment dated February 7, 2003, the Clerk reassessed the four documents originally identified as responsive to Ethyl’s request and severed the portions falling within the scope of the exception defined in paragraph 69(3)(b). The Clerk concluded that the Analysis Section constituted a “discussion paper” within the meaning of paragraph 39(4)(b) of the Canada Evidence Act and therefore did not warrant protection as a Cabinet Confidence. Paragraph 39(4)(b), which is set out in Appendix “C” to these Reasons, is identical to paragraph 69(3)(b) of the Access Act. Further to the Court of Appeal’s judgment, the Minister was given an opportunity to claim exemptions applicable to the Analysis Section.
[41] The Commissioner argues, however, that the exemptions provided in paragraphs 21(1)(a) and (b) cannot apply when the conditions in paragraph 69(3)(b) are met. Discussion papers removed from the “protection of candour” regime found in subsection 69(1), it is argued, cannot be exempt from disclosure by being categorized as “advice and recommendations” or “accounts of consultations or deliberations” under paragraphs 21(1)(a) or (b). The Commissioner argues that such a result defeats the intent of Parliament and the stated purpose of the Access Act.
[42] The modern approach to statutory interpretation described by Elmer Driedger in The Construction of Statutes (Toronto: Butterworths, 1974) at page 67 was adopted by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[43] The Commissioner has filed material tracing the legislative history of sections 21 and 69. On the basis of this extrinsic material, the Commissioner asks the Court to interpret the Access Act in such a way as to prevent the exemption under subsection 21(1) of any records within the scope of subsection 69(3). It is well established that the Court may look to extrinsic material, including Hansard, to ascertain the purpose behind an enactment or provision: Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 at paragraph 17; R. v. Morgentaler, [1993] 2 S.C.R. 463 at 483-84.
[44] Both a plain reading of sections 21 and 69 and a review of the Access Act’s legislative history, however, leads me to conclude that the Commissioner’s argument on this point must fail.
[45] First, the effect of subsection 69(3) is discerned, albeit circuitously, by reading the opening text of subsections 69(1) and (3):
69. (1) This Act does not apply to confidences of the Queen’s Privy Council for Canada, including, without restricting the generality of the foregoing,
[…]
(3) Subsection (1) does not apply to […]
[Emphasis added]
69. (1) La présente loi ne s’applique pas aux documents confidentiels du Conseil privé de la Reine pour le Canada, notamment aux:
[…]
(3) Le paragraphe (1) ne s’applique pas: […]
[Je souligne]
A plain reading of these provisions indicates that if a record falls within the scope of subsection 69(3), then, as an exception to the rule in subsection 69(1) excluding Cabinet Confidences, the Access Act applies in respect of the record. As noted below, this fact alone does not determine whether the record must be released on request. Such a determination must be made in accordance with the other provisions of the Access Act.
[46] Second, the Court of Appeal was clear in granting the Minister an opportunity to claim any exemptions found to apply to the records which the Clerk found did not constitute Cabinet Confidences under paragraph 69(3)(b) of the Access Act. As referred to above in paragraph 9, Noël. J.A. stated:
(b) if such severable corpus of words is found to exist by the Clerk of the Privy Council Office, it is hereby ordered that it be severed and released to the applicant subject to any exemption which may be claimed by the head of the government institution.
[Emphasis added]
If the application of paragraph 69(3)(b) precluded all other exemptions under the Access Act, no such opportunity would have been provided.
[47] Third, the specific exemption under subsection 21(1) of “advice and recommendations” and “accounts of consultations or deliberations” is distinct from the terminology found in paragraph 69(1)(b): “discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions”. As Malone J.A. explained in Jabel Image Concepts Inc. v. Canada (Minister of National Revenue) (2000), 257 N.R. 193, at paragraph 12 (F.C.A.):
[…] When an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning. […]
It follows that, whatever Parliament’s intention was in respect of discussion papers, the intention as expressed in subsection 21(1) is that the Minister has discretion to refuse to disclose records containing information described in that subsection.
[48] Finally, the legislative history of the Access Act indicates that Parliament did not intend the application of subsection 69(3) to preclude the operation of subsection 21(1). Bill C-43, which enacted the Access Act, received first reading in the House of Commons on July 17, 1980. Bill C-43 at first reading contained distinct exemptions for Cabinet Confidences and records containing “advice and recommendations” and “accounts of consultations or deliberations”: the former were subject to a mandatory exemption under clause 21, and the latter were subject to a discretionary exemption under clause 22. Clauses 21 and 22, as they read during first reading of Bill C-43, are set out in Appendix “D” to these Reasons. During the Committee stage, Bill C-43 was amended by removing the mandatory exemption for Cabinet Confidences under clause 21 and substituting a new clause 69, which removed altogether Cabinet Confidences from the scope of the Access Act. In doing so, the Committee added an exception for background papers. Clause 22 now appears as section 21 of the Access Act, and clause 69 appears as section 69 of the Access Act.
[49] Clauses 21 and 22 addressed distinct classes of records based on distinct justifications for their non-disclosure. Notwithstanding the differences between these predecessor clauses and the current provisions found in subsections 21(1) and 69(3) of the Access Act, it is clear that Parliament did not intend these provisions to be applied such that records within the scope of the latter are necessarily excluded from the former. While the possibility for overlap exists, nothing inherent in these provisions requires it.
[50] The Commissioner’s argument that exemptions under subsection 21(1) cannot be applied to records within the scope of subsection 69(3) must therefore fail.
Issue No. 1: Are the Disputed Passages exempt from disclosure?
(b) “Advice or Recommendations”: Paragraph 21(1)(a)
[51] Paragraph 21(1)(a) provides a discretionary exemption for “advice or recommendations developed by or for a government institution or a minister of the Crown.” The Federal Court of Appeal held in Telezone, supra at paragraph 50, that:
[…] by exempting “advice and recommendations” from disclosure, Parliament must be taken to have intended the former to have a broader meaning than the latter, otherwise it would be redundant.
[Emphasis in original]
The Court of Appeal then interpreted “advice” at paragraph 52:
On the basis of these considerations, I would include within the word “advice” an expression of opinion on policy-related matters, but exclude information of a largely factual nature, even though the verb “advise” is sometimes used in ordinary speech in respect of a communication that is neither normative, nor in the nature of an opinion.
[52] I am also guided by the interpretation of section 21 provided by Evans J., as he then was, in Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 at paragraph 39:
It is difficult to avoid the conclusion that the combined effect of paragraphs 21(1)(a) and (b) is to exempt from disclosure under the Act a very wide range of documents generated in the internal policy processes of a government institution. Documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within these broad terms. However, most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or (b) of subsection 21(1).
[53] In refusing to release the Disputed Passages, the Minister has relied on both paragraphs 21(1)(a) and (b). Having reviewed the material, I conclude that some portions of the Disputed Passages are subject to the discretionary exemption under paragraph 21(1)(a). I will review separately the applicability of paragraph 21(1)(b) to the Disputed Passages. The Confidential Appendix to these Reasons sets out for greater certainty the appropriate redactions in the nine paragraphs in dispute. The highlighted portions in the Confidential Appendix indicate the portions of text which the Court concludes are not subject to paragraph 21(1)(a).
Paragraph 46
[54] Paragraph 46, which discusses the “economic implications and competitiveness of the motor vehicle and petroleum industries”, contains eight sentences. The last four sentences have been withheld. Of these sentences, the first contains purely factual information and is therefore not subject to paragraph 21(1)(a). The second sentence contains both opinion and fact. Accordingly, I find that paragraph 21(1)(a) applies in respect of the opinion expressed in the first 15 words in the second sentence but not in respect of the factual information provided in the remaining 18 words. The third sentence reflects an opinion and is therefore subject to paragraph 21(1)(a). The fourth sentence contains both fact and opinion, and I find that paragraph 21(1)(a) applies only in respect of the final 12 words.
Paragraph 47
[55] The last three sentences of paragraph 47 have been withheld. The first of these sentences contains both fact and advice, and I would apply paragraph 21(1)(a) only in respect of the opinion expressed in the final thirteen words. The second sentence in dispute contains purely factual information to which paragraph 21(1)(a) does not apply. I am satisfied that the third sentence consists entirely of opinion on a policy issue and is therefore subject to paragraph 21(1)(a).
Paragraph 66
[56] The Minister refused to disclose both sentences in paragraph 66, which discusses a disadvantage of the “National Approach” option. The second sentence has been withheld on the basis of the solicitor-client privilege exemption under section 23 of the Access Act. The Commissioner does not take issue with the Minister’s refusal to disclose the second sentence. It is not clear from the material whether section 23 has also been invoked in respect of the first sentence. In any event, the Minister claims the first sentence is exempt under paragraphs 21(1)(a) and (b).
[57] The first sentence of paragraph 66 contains purely factual information. Moreover, it is almost identical to the statement already released in paragraph 36 of the Analysis Section. The Minister cannot rely on paragraph 21(1)(a) to refuse disclosure of the first sentence. Any claim to withhold the first sentence on the basis of section 23 must also fail because solicitor-client privilege does not apply to information which has already been disclosed.
Paragraph 84
[58] The Minister refused to disclose the second sentence in paragraph 84, which discusses a disadvantage of the option to “Harmonize motor vehicle emissions standards with U.S. Federal Standards (without removing MMT)” (“Option 3”). I am not satisfied that this sentence constitutes “advice or recommendations” within the meaning of paragraph 21(1)(a).
Paragraph 87
[59] The Minister refused to disclose all three sentences in paragraph 87, which continues the discussion of disadvantages of Option 3. The information contained in the first two sentences, while somewhat speculative, is largely factual. Accordingly, I cannot conclude that the first two sentences are exempt under paragraph 21(1)(a). The third sentence, however, consists of opinion and is exempt under paragraph 21(1)(a).
Paragraph 89
[60] The Minister refused to disclose both sentences in paragraph 89, which is also part of the section describing disadvantages of Option 3. The first eleven words clearly constitute advice within the meaning of paragraph 21(1)(a); however, the remaining text in paragraph 89 consists of factual information. While the last eleven words in the first sentence appear to form the basis of the advice expressed in the opening words of the sentence, I am satisfied that severance is appropriate in this situation. Therefore, only the first eleven words of paragraph 89 are exempt under paragraph 21(1)(a).
Paragraph 94
[61] Paragraph 94, the last sentence of which has been withheld by the Minister, begins the discussion of disadvantages of the “Excise Tax Option” (“Option 4”). The withheld text contains information that is entirely speculative in nature. It is characterized more accurately, in my view, as explanatory than as an opinion on a policy matter. I am not satisfied that it constitutes “advice or recommendations” within the meaning of paragraph 21(1)(a).
Paragraph 95
[62] Paragraph 95, which consists of two sentences, continues the discussion of Option 4’s disadvantages. The Minister has refused to disclose paragraph 95 in its entirety. It is clear from a reading of the first sentence that it is normative and expresses an opinion on the appropriateness of Option 4. It is therefore exempt under paragraph 21(1)(a). The second sentence, however, is entirely factual in nature and is not subject to paragraph 21(1)(a).
Paragraph 106
[63] Paragraph 106, which contains two sentences and has been withheld in its entirety, discusses a disadvantage of the “Market-Based (Do-Nothing) Approach”. I am satisfied that the both sentences consist of advice within the meaning of paragraph 21(1)(a).
Issue No. 1: Are the Disputed Passages exempt from disclosure?
(c) “Account of Consultations or Deliberations”: Paragraph 21(1)(b)
[64] There has been relatively little judicial consideration of paragraph 21(1)(b). I am, however, guided by the interpretive comments provided by Martineau J. in Newfoundland Power Inc. v. Canada (Minister of National Revenue), 2002 FCT 692 at paragraph 5:
I consider that the analysis of various strategic or legal alternatives, and any recommendation made by managers or employees of the defendant regarding the position the latter should take on a taxpayer's notice of objection, are clearly covered by paragraph 21(1)(b) of the Act.
[65] Also noteworthy is the interpretation provided in Chapter 2-8 of the Treasury Board Manual on Access to Information Policy and Guidelines. Before reviewing its content, the admissibility and use of the manual must be addressed. As stated by R. Sullivan in Sullivan and Driedger on the Construction of Statutes (Toronto: Butterworths, 2002) at pages 505-506:
It is well established that administrative interpretation may be relied on by courts to assist in determining the meaning or effect of legislation. However, the opinion of administrative interpreters is not binding on the courts. Except in so far as they are empowered to do so by statute, administrators can neither make law (that is the job of the legislature) nor determine its true meaning (that is the job of the courts. All they can do is offer an opinion that is more or less persuasive.
The Treasury Board Manual provides the following discussion of paragraph 21(1)(b):
This provision has certain key components. The first is the term "account". As this term is not defined in the Act, it is given its ordinary meaning as a "particular statement or narrative of an event or thing; a relation, report or description". The term "account" encompasses an exchange of views.
[…]
It is important in this context, however, to bear in mind that the existence of an account is not sufficient. It must be an account of "consultations or deliberations". As these words are not defined fo