Macdonell v. Quebec (Commission d'accès à l'information)

Macdonell v. Quebec (Commission d'accès à l'information)
Collection
Supreme Court Judgments
Date
2002-11-01
Neutral citation
2002 SCC 71
Report
[2002] 3 SCR 661
Case number
28092
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Access to information
Administrative law
Notes
SCC Case Information: 28092
Decision Content
Macdonell v. Quebec (Commission d’accès à l’information), [2002] 3 S.C.R. 661, 2002 SCC 71
Roderick Macdonell Appellant
v.
Attorney General of Quebec and National Assembly Respondents
and
Commission d’accès à l’information, Paul‑André Comeau,
Court of Quebec and the Honourable Jean Longtin Mis en cause
Indexed as: Macdonell v. Quebec (Commission d’accès à l’information)
Neutral citation: 2002 SCC 71.
File No.: 28092.
2002: January 22; 2002: November 1.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard of review — Commission d’accès à l’information — Standard of review applicable to Commission’s decisions under ss. 34 and 57 of Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A‑2.1.
Access to information — Documents held by public bodies — Restrictions on right to access — Protection of personal information — Journalist requesting disclosure of document concerning expenses of Members of National Assembly prepared by Assembly’s services — Commission d’accès à l’information refusing disclosure under ss. 34 and 57 of Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information — Whether Commission’s decision unreasonable — Whether document requested is a document produced “for” a Member of the National Assembly within the meaning of s. 34 — Whether a Member of the National Assembly may be considered to constitute a public body within the meaning of s. 57 — Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A‑2.1, ss. 34, 57.
The appellant, a journalist, made a request under the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information for access to a document concerning the expenses of Members of the National Assembly. This document was prepared by the National Assembly’s accounting department for each Member and describes the total payroll available to the Member, and the Member’s expenses for employing full‑time or casual staff and for paying for professional services. Relying on ss. 34, 53 and 57 of the Act, the person in charge of access to information at the National Assembly denied the request. The Quebec Commission d’accès à l’information upheld that decision. The Commissioner concluded that the document requested had been prepared “for” a Member and could not, under s. 34, be disclosed without the Member’s consent. With respect to s. 57, the Commissioner found that the information sought in the access request could not relate directly to the staff or contractors employed by the Member since a Member himself or herself is not considered to constitute a public body. The Court of Québec denied leave to appeal that decision. The Superior Court granted the appellant’s application for judicial review of the Commissioner’s decision. It found that the Commissioner had erred in law and had made a patently unreasonable decision by interpreting s. 34 in a way that was inconsistent with the Act and the Regulations as a whole. The majority of the Court of Appeal set aside that decision, concluding that the Commissioner’s interpretation of ss. 34 and 57 was not unreasonable.
Held (Major, Bastarache, Binnie and LeBel JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci and Arbour JJ.: As found by the minority, the standard of review applicable to the Commissioner’s decision under s. 34 is that of the reasonable decision. With respect to s. 57, the pragmatic and functional approach shows that the standard that must be applied is also the reasonableness standard. The nature of the decision made under s. 57, the presence of the privative clause and the relative expertise of the Commission show that the legislature intended to rely on the Commission to interpret s. 57 and to identify the documents that are covered by that section, subject only to a right of appeal, with leave, to the Court of Québec on a question of law or jurisdiction, to the exclusion of any other remedy.
The Commissioner’s decision respecting s. 34 is reasonable. While exceptions to disclosure have generally been narrowly construed, that rule of interpretation applies only where the Act needs to be construed. Here, the wording of s. 34 makes no distinction between documents that are purely administrative and documents that are associated with the decision‑making process. That section requires that a person seeking access obtain the consent of the Member concerned for all of the documents covered by the section. Given the clear wording of the provision, the need to reconcile the two fundamental rights provided in the Act — namely access to information and the independence of Members — and the different treatment that the legislature provided for Members’ documents, it was reasonable for the Commissioner not to limit the exception in s. 34 to functions associated with Members’ legislative activities. The only question that the Commissioner had to ask was whether the document in question had been produced “for” a Member. Even though the National Assembly’s financial resources management branch also verifies, using the documents that are the subject of this case, that the Member’s total payroll has not been exceeded, it was reasonable for the Commissioner to conclude that the documents were produced for the Member. The document, which is provided directly to the Member, is produced for the Member so that the Member may keep his or her own books and know what his or her own financial margin of manoeuvre is. It is irrelevant that the document may also be used by the services of the National Assembly, or even belong to it. Since the conditions in s. 34 have been met, the document is exempt from access, unless the Member consents.
The provisions of the Act relating to the confidential nature of nominative information cannot be overridden by the consent given by the Member. The Commissioner construed the meaning of s. 57 reasonably in concluding that Members are not “public bodies”. Members are not covered by the definition of public body provided in s. 3 of the Act and s. 34 provides for a special procedure for Members’ documents. The Act contains numerous distinctions between the National Assembly, as a public body, and Members, as components of that body, and a Member, acting alone, therefore cannot be confused with the National Assembly. It is reasonable to understand that Members are subject to the Act not because they are classed as a public body, but because the legislature has provided that the Act will apply to them within the limits prescribed. Moreover, even if we agreed that each Member is a public body, the very large majority of the information in the document requested should be exempted from disclosure owing to its confidential nature.
Per Major, Bastarache, Binnie and LeBel JJ. (dissenting): The standard of review applicable to the Information Commissioner’s decision under s. 34 of the Act is that of the reasonable decision. In this case, the privative clause is only partial since it provides for an appeal on any question of law or jurisdiction. Furthermore, the Commissioner’s special expertise is needed, for the interpretation of s. 34, only when findings of fact are involved. The decision concerning the application of s. 34 is a question of mixed law and fact. This is also not a case in which different interests must be weighed. With respect to s. 57, it is not necessary to examine the standard of review of the reasonable decision that was adopted by the Court of Appeal in view of the finding that the Commissioner’s interpretation was unreasonable. If the intermediate standard of the reasonableness of the decision must be applied, it is necessary to examine how the methods of statutory interpretation impact on the concept of reasonableness, which is one of the fundamental components of the current system of judicial review.
The Commissioner’s decision relating to s. 34 is unreasonable. His broad interpretation of a rule providing for an exception is inconsistent with achieving the purpose of the Act. By interpreting s. 34 without taking into account the purpose of the Act as a whole, the legislative context, and the specific purpose of the exception set out in s. 34, the Commissioner made an error that affected his analysis so seriously that it made it unreasonable. The Commissioner should have kept foremost in his mind the purpose of the Act, as set out in s. 9, which states the fundamental principle that access may be had to government information. He then had to consider the meaning and scope of the exceptions to the general rule that are set out in s. 34 by examining the category of exceptions in question, that is, the category in the subdivision of the Act dealing with information affecting administrative or political decisions. The purpose of those exceptions, including s. 34, is to guarantee the independence of the Member in performing his or her duties. Section 34 relates solely to the documents of individual Members. A narrow interpretation of the exceptions that is consistent with its underlying objective could not reasonably have led to the conclusion that s. 34 applied to the document requested since that document is essentially an accounting statement prepared for the accounting service and not for the Member. The expression “for” in s. 34 suggests that the document has a specific purpose that relates directly and specifically to the individual Member and the performance of his or her role. It does not seem essential to a Member’s ability to perform his or her role that the manner in which the Member spends the public funds made available to him or her, the use of which is subject to specific terms and conditions, be protected from disclosure.
The Commissioner adopted the reasoning of the Court of Québec in Québec (Assemblée nationale) v. Sauvé, [1995] C.A.I. 427, to explain his position concerning the application of s. 57 of the Act. The reasons in that decision suffer from the same defect as the Commissioner’s reasons with regard to s. 34. The court analysed the Act literally, without considering its purpose, the justification needed for the exceptions to the principles it lays down, or what is actually required with regard to the Member’s independence pursuant to s. 57. It did not refer to any rule of interpretation and did not do any contextual analysis. By adopting those reasons, the Commissioner thus adopted a reasoning that does not meet the requirements of the standard of reasonableness. The analysis and reasoning of the dissenting judge in the Court of Appeal are preferable. A Member is recognized as a public body for the purposes of s. 57. Section 34 would be largely pointless if the Member was not subject to ss. 55 and 57.
Cases Cited
By Gonthier J.
Referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; 3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421, 2001 FCA 254; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Québec (Assemblée nationale) v. Sauvé, [1995] C.A.I. 427; Plastiques M & R inc. v. Bureau du commissaire général du travail, [1992] C.A.I. 372; Marchildon v. Commission d’accès à l’information, [1987] C.A.I. 96.
By Bastarache and LeBel JJ. (dissenting)
Québec (Assemblée nationale) v. Sauvé, [1995] C.A.I. 427; Université Laval v. Albert, [1990] C.A.I. 438; Québec (Procureur général) v. Bayle, [1991] C.A.I. 306; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Commission de la santé et de la sécurité du travail v. Autobus Jacquart inc., [2000] C.L.P. 825; R. v. Lohnes, [1992] 1 S.C.R. 167; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Kelly, [1992] 2 S.C.R. 170; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; 2747‑3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Conseil de la magistrature du Québec v. Commission d’accès à l’information, [2000] R.J.Q. 638; Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Héroux v. Groupe Forage Major, [2001] C.L.P. 317.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A-1 .
Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1, ss. 1, 3, 9, 34, 53, 54, 55, 57, 114, 122, 123, para. 3, 124‑133, 146, 147, 154.
Act Respecting the National Assembly, R.S.Q., c. A-23.1, ss. 1, 43, 120, 123, 124.2.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 834 to 850.
Interpretation Act, R.S.O. 1980, c. 219 [now R.S.O. 1990, c. I.11].
Interpretation Act, R.S.Q., c. I‑16, s. 41.
Règlement sur la rémunération et les conditions de travail du personnel d’un député et sur le paiement des services professionnels, National Assembly, Règles administratives du Bureau, décision no 092, 16 mai 1984 (mise à jour 1er novembre 1990), ss. 2, 3, 4, 7, 8, 9, 10, 12, 16‑20, 61, 62, 63.
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Duplessis, Yvon, et Jean Hétu. L’accès à l’information et la protection des renseignements personnels, vol. 2. Brossard, Qué.: Publications CCH, 2001 (feuilles mobiles).
Ontario. Commission on Freedom of Information and Individual Privacy. Public Government for Public People. Toronto: The Commission, 1980.
Zander, Michael. The Law‑Making Process, 4th ed. London: Butterworths, 1994.
APPEAL from a judgment of the Quebec Court of Appeal, [2000] R.J.Q. 1674, [2000] C.A.I. 467, [2000] Q.J. No. 1764 (QL), reversing a decision of the Superior Court, [1997] R.J.Q. 132. Appeal dismissed, Major, Bastarache, Binnie and LeBel JJ. dissenting.
Mark Bantey, for the appellant.
Claude Bouchard et René Chrétien, for the respondents.
English version of the judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci and Arbour JJ. delivered by
Gonthier J. —
I. Introduction
1 The main issue in this case is the privilege granted to Members of the National Assembly not to disclose certain documents under the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A‑2.1 (“Access Act”). More precisely, we must determine whether the Commissioner’s decision that the documents showing the expenses of a Member of the National Assembly are documents produced for a Member within the meaning of s. 34 of the Access Act is reasonable. As well, the Court must decide whether the Commissioner’s decision that the information in the documents requested includes nominative information that is exempt from disclosure is reasonable.
2 I would refer to the description given by my colleagues of the facts in this appeal and of the decisions below, except the attribution to the Commissioner, Paul‑André Comeau, of the statement that all that needs to be found in order for the s. 34 exemption to apply is that the information in the document requested relates specifically to the Member. The Commissioner actually asked whether the document was produced for the Member.
II. Analysis
1. Applicable Standard of Review
3 I agree with the approach taken by Bastarache and LeBel JJ. in applying the standard of the “reasonable decision” to the decision of the Commissioner concerning s. 34 and s. 57 of the Access Act. However, they do not provide a definitive answer to the question of the standard applicable to the decision under s. 57. While implying that it is the “correct decision” standard that applies, they consider that the Commissioner’s decision was unreasonable and find it unnecessary to pursue the matter. I do not believe it is necessary to reiterate my colleagues’ analysis in its entirety. I simply add a few observations relevant to determining what standard of review applies to a decision made under s. 57 and a few comments on some of their analysis. I shall briefly examine some of the elements in the pragmatic and functional approach — the nature of the decision involved, the presence of a privative clause, and the expertise of the tribunal — that make it possible to determine the intention of the legislature (U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048).
4 I believe that my colleagues minimize the impact of the privative clause in the Access Act. They are of the view that it is a partial private clause since it provides for an appeal on any question of law or jurisdiction. In my view, this is a special privative clause specific to the Commission d’accès à l’information and drafted so as to limit the scope of the superior courts’ intervention:
114. No extraordinary recourse provided for in articles 834 to 850 of the Code of Civil Procedure (chapter C‑25) may be exercised nor any injunction granted against the Commission or any of its members acting in their official capacity.
Two judges of the Court of Appeal may, on a motion, summarily annul any writ, order or injunction issued or granted contrary to this Act in relation to a document.
122. The object of the Commission is to hear, to the exclusion of every other court, the requests for review made under this Act.
The Commission shall also exercise the functions conferred on it under the Act respecting the protection of personal information in the private sector (chapter P‑39.1).
146. Every decision of the Commission on a question of fact within its competence is final.
147. A person directly interested may bring an appeal from a decision of the Commission before a judge of the Court of Québec on any question of law or jurisdiction.
In no case may an appeal be brought except with leave of a judge of the Court of Québec. The judge shall grant leave if in his opinion the question ought to be examined in appeal.
154. The decision of the judge of the Court of Québec is final. [Emphasis added.]
The legislature has provided for the possibility of an appeal to the Court of Québec on a question of law and jurisdiction, and that possibility suggests that this is a partial privative clause that necessitates less deference, as this Court stated in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 17:
A “full” or “true” privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 332, and Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 590. [Emphasis added.]
5 However, the appeal provided for in the Access Act is limited to questions of law or jurisdiction, and leave for the appeal must be given by a judge of the Court of Québec. The right of appeal is therefore limited. The decision of the Court of Québec is the final step in the decision‑making process, since no appeal lies from it. The legislature has created a closed circuit between the Commission and the Court of Québec. Section 114 of the Access Act precludes any opportunity to rely on arts. 834 to 850 of the Code of Civil Procedure, R.S.Q., c. C-25, which provide for extraordinary remedies. When the Act uses words that purport to limit review, it is up to the courts to determine whether the words used have full privative effect, or whether they create a lesser standard of deference (see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), supra, at para. 17; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230, at p. 264). The privative clause must be analysed having regard to all the relevant provisions, and the true intention of the legislature is to be found in those provisions as a whole. There can be no doubt that the provisions in issue here, when taken as a whole, demonstrate the legislature’s intention of limiting intervention by the superior courts. In my opinion, the presence of a clause of this nature calls for deference to the decisions of the Commission.
6 Moreover, unlike my colleagues, I do not believe that the Commissioner’s decision under s. 57 is a pure question of law. The question that must be answered under that section involves elements of fact and law. It requires that the specific facts of the case be analysed, and in that respect it is in the nature of a question of fact. In addition, the Commissioner must interpret the enactment, and specifically how it applies to Members and their staff. That aspect of the analysis involves a question of law. As Bastarache and LeBel JJ. observe, a question of mixed law and fact calls for a certain degree of deference.
7 Finally, the Commission d’accès à l’information has relative expertise in respect of protecting privacy and promoting access to information held by a public body. That expertise is apparent from the powers conferred on the Commissioner to achieve the objectives of the Act, and from the Commission’s exclusive power to hear requests for review made under the Access Act (s. 122). Sections 124 to 133 give the Commission broad powers to enable it to carry out its investigations. For example, the Commission has the power to prescribe conditions applicable to a personal information file (s. 124), to conduct investigations on its own initiative or when a complaint is filed (s. 127), to make appropriate recommendations, and to submit a special report to the National Assembly (s. 133). The Commission also takes part in policy making. In s. 123, para. 3, the legislature has provided that it is the Commission’s function to give its opinion on the draft regulations submitted to it under the Act, on draft agreements on the transfer of information and on draft orders authorizing the establishment of confidential files. Plainly, the legislature treats the Commission as being expert in certain matters.
8 Unlike the federal Access to Information Act, R.S.C. 1985, c. A-1 , the Quebec legislature has provided for an exclusive review by the Quebec Commission d’accès à l’information, a separate body, as Evans J.A. of the Federal Court of Appeal quite accurately observed in 3430901 Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421, 2001 FCA 254, at para. 30:
Counsel argued that the Judge had erred by relying for her conclusion almost exclusively on Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D). I had held in that case (at paragraphs 12‑13) that correctness was the applicable standard of review because, unlike the situation under many provincial access to information statutes, the administrative action typically reviewed in the federal scheme is the refusal of a head of a government institution to disclose a document, not of the Information Commissioner, an officer of Parliament who is independent of the Executive. Heads of government institutions are not disinterested in the interpretation and application of the Access to Information Act and are likely to have an institutional predisposition towards restricting the public right of access and construing the exemptions broadly. [Emphasis added.]
The Quebec Commission d’accès à l’information has no special interest in the decision it must make, and so it is able to play its role independently. By virtue of the fact that it is always interpreting the same Act, and that it does so on a regular basis, the Quebec Commissioner develops general expertise in the field of access to information. That general expertise on the part of the Commission invites this Court to demonstrate a degree of deference.
9 In other words, having regard to the nature of the decision made under s. 57, the presence of the privative clause and the relative expertise of the Commission, I am of the opinion that the legislature intended to rely on the Commission to interpret s. 57 and to identify the documents that are covered by that section, subject only to a right of appeal, with leave, to the Court of Québec on a question of law and jurisdiction, to the exclusion of any other remedy. It would be unjustified to place the standard of judicial review at either end of the scale. Like the Court of Appeal, I am of the opinion that the standard that must be applied is the reasonableness standard.
2. Analysis of the Commissioner’s Decision Under Section 34 of the Access Act
10 The document requested was described by Gilles Dumont, a computer and administrative systems analyst in the National Assembly’s financial resources management branch, as a document prepared for each Member describing the total payroll available to the Member, and the Member’s expenses incurred in employing full‑time or casual staff and for paying for professional services. Those moneys are provided under the rules set out in the Règlement sur la rémunération et les conditions de travail du personnel d’un député et sur le paiement des services professionnels, National Assembly, Règles administratives du Bureau, Decision No. 092, May 16, 1984 (updated November 1, 1990). In other words, the document tells the Member what he or she has spent to date.
11 The parties agree that the document entitled “Assemblée nationale, service de la programmation et contrôle budgétaire, état des dépenses engagées pour 1990 et 1991 pour chaque membre de l’Assemblée nationale” is not a “document from the office of a member of the National Assembly”. The only question to be answered is whether the Commissioner’s finding that the document requested by the appellant is a document produced for a Member by the services of the National Assembly is reasonable:
34. No person may have access to a document from the office of a member of the National Assembly or a document produced for that member by the services of the Assembly, unless the member deems it expedient.
The same applies to a document from the office of the President of the Assembly or of a member of the Assembly contemplated in the first paragraph of section 124.1 of the Act respecting the National Assembly (chapter A‑23.1) or a minister contemplated in section 11.5 of the Executive Power Act (chapter E‑18), and to a document from the office staff or office of a member of a municipal or school body. [Emphasis added.]
12 My colleagues say that Commissioner Comeau did not take the purpose of the Access Act into consideration in interpreting s. 34. They believe that the Commissioner committed an error that made his decision unreasonable by failing to consider the “fundamental principle that access may be had to government information” set out in s. 9 (par. 62). If he had taken that objective into consideration, he would have interpreted s. 34 narrowly, by limiting the scope of that section to documents that relate to Members’ decision‑making process. As my colleagues consider that he did not take the proper analytical approach, they find that the decision was unreasonable. With respect, I am not of that opinion.
13 Access to information legislation usually has two major themes: the right to information and the right to privacy. The Quebec statute, unlike other provincial statutes and the federal statute, also makes Members of the legislature subject to access to information to a certain extent. Section 34 does this in respect of documents from the office of a Member of the National Assembly and documents produced for that Member by the services of the Assembly, provided that the Member consents. This is a separate set of rules, parallel to the general procedure for requesting access set out in s. 9. Before s. 34 came into force, Members were subject only to political oversight in this respect, and the public did not otherwise have access to these documents.
14 The Access Act therefore applies to Members’ documents within certain limits. The purpose of s. 34 is twofold: to provide access to certain documents of Members, and to limit that right.
15 This limited right of access demonstrates the legislature’s intention of protecting the free exercise of the parliamentary function from inappropriate and arbitrary pressure, by giving the Member responsibility for the decision not to disclose, in relation both to the National Assembly and to the public, and by defining a sphere of confidentiality in the Member’s work. The legislature has made a choice, by distinguishing what is open to public access without restriction from what is subject to the consent of the Member. Section 43 of the Act Respecting the National Assembly, R.S.Q., c. A-23.1, demonstrates the importance placed by the legislature on its Members’ independence:
43. Every Member is vested with full independence for the carrying out of his duties. [Emphasis added.]
The Access Act protects and reconciles two fundamental principles of our democracy: access to information and the independence of Members. The legislature has done this by limiting the scope of each of those. The two rights must be considered together, without elevating one over the other, unless otherwise indicated in the Act, and the intention of the legislature in this regard must be respected.
16 There is nothing unreasonable in the Commissioner’s interpretation. The wording of s. 34 makes no distinction between documents that are purely administrative and documents that are associated with the decision‑making process. That section requires that a person seeking access obtain the consent of the Member concerned for all of the documents covered by the section. It is written in precise terms: it is concerned only with whether the document is from the office of a Member of the National Assembly or was produced for that Member by the services of the National Assembly. The Access Act applies to those documents, but only on the conditions stated.
17 My colleagues rely, inter alia, on the wording of the heading of subdivision 5 of the Access Act, “Information affecting administrative or political decisions”, to distinguish between the functions of a Member that are, properly speaking, legislative or decision‑making in nature, and the other secondary activities that a Member may perform. In my opinion, it is reasonable to place more weight on the words of the provision than on the heading of that subdivision. As Forget J.A. of the Quebec Court of Appeal said ([2000] R.J.Q. 1674, at para. 46), before interpreting a statute and looking to secondary sources, we must first examine the text of the statute:
[translation] [B]efore looking for the intention of the legislature having regard solely to the principles underlying the Act, we must consider the text, since it is through the text that the legislature has spoken.
18 It is true that exceptions to disclosure have generally been narrowly construed (see Y. Duplessis and J. Hétu, L’accès à l’information et la protection des renseignements personnels (loose-leaf), vol. 2, c. II, at p. 45 001; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53) and I did say in Québec (Communauté urbaine) v. Corp. Notre‑Dame de Bon-Secours, [1994] 3 S.C.R. 3, at p. 18, that “when the legislature makes a general rule and lists certain exceptions, the latter must be regarded as exhaustive and so strictly construed”. However, that rule of interpretation applies only where the Act needs to be construed. As McDonald J.A. of the Federal Court of Appeal said in applying the Access to Information Act , the Act must not be interpreted where no purpose is served by doing so (Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430, at para. 24):
It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it. [Emphasis added.]
19 It was reasonable for the Commissioner not to limit the exception in s. 34 to functions associated with Members’ legislative activities, having regard to, inter alia, the clear wording of the provision, the need to reconcile the two fundamental rights provided in the Access Act and the different treatment that the legislature provided for Members’ documents. The only question that the Commissioner had to ask was whether the document “Assemblée nationale, service de la programmation et contrôle budgétaire, état des dépenses engagées pour 1990 et 1991 pour chaque membre de l’Assemblée nationale” had been produced for a Member. What we must now do is analyse the application of that section to the specific case.
20 Before hiring staff, a Member must first fill out the appropriate form for financial control by the National Assembly’s accounting department. The employee assigned to that task must ensure that the total payroll available to the Member of the National Assembly has not been exhausted. The document is prepared using the information provided by the Member, and each month it is sent to the Member. It is treated as confidential by the National Assembly’s accounting department and only a few people have access to it. A document is prepared for each Member, and each Member receives the document that relates to him or her personally. Members therefore do not receive all of the documents; they receive only the document that relates to their own expenses. The document that the appellant is trying to obtain is the document that is a compilation of the documents given to the Members individually.
21 The document enables the Member to ensure that the Member does not exceed his or her budget in hiring staff. The Member has complete discretion to choose his or her employees, as s. 43 of the Act Respecting the National Assembly, and an analysis of the relevant sections of the Règlement sur la rémunération et les conditions de travail du personnel d’un député et sur le paiement des services professionnels, suggest:
[translation]
2. The Member shall hire the necessary staff to assist the Member in the performance of the Member’s functions, and shall appoint the staff and determine their status.
3. A Member’s staff is composed of advisers, political attachés or support employees. The Member shall determine their duties and responsibilities.
An adviser or political attaché shall perform the professional duties assigned to him or her, which include the functions of press officer, researcher, liaison officer or constituency secretary.
A support employee is responsible for performing administrative support duties.
4. A member of a Member’s staff shall be appointed in writing. The appointment document shall state the staff member's home base: one of the buildings occupied by the National Assembly or the Member's constituency office.
7. In addition to a Member’s full‑time staff, the Member may hire other persons on a contractual basis.
The remuneration and conditions of employment of such persons shall be as provided in their contract of employment. However, their remuneration must be consistent with the provisions for the remuneration of full‑time employees.
61. A Member who retains the professional services of a corporation or partnership to handle a specific matter shall be entitled to payment of the fees incurred by the Member.
The Member may also provide for reimbursement of travel expenses at the rates specified in the contract, which may not exceed the rate provided for by Conseil du trésor directive 7‑74.
62. Payment shall be made to the corporation or partnership upon presentation by the Member of the contract and vouchers.
63. The expenses shall be paid out of the payroll and the additional payroll, if any. [Emphasis added.]
22 On October 1, 1992, a Member’s total payroll for staff remuneration was $101,200 per year (s. 12 of the Regulations). Although a Member has full discretion in hiring staff, he or she must still comply with certain rules with respect to the maximum salary that may be paid to the persons hired by the Member (ss. 16 to 20 of the Regulations). The document in issue is essential for Members in that it enables them not to exceed the total amount allocated and to make an informed choice when selecting candidates. A Member must be familiar with the figures for his or her expenses in order to be able to adjust the decision as to what candidates are sought to the financial constraints to which he or she is subject. The staff that are hired may be a determining factor in a Member’s success, and the hiring process is part of the important duties of a Member.
23 In my opinion, even though the National Assembly’s financial resources management branch also verifies, using the documents that are the subject of this case, that the Member’s total payroll has not been exceeded, it was reasonable for the Commissioner to believe that [translation] “[t]his does not in any way alter the fact that the documents are produced for the Member, that they are treated as confidential by the few members of the staff of the Assembly who have access to them in the course of their duties, and that the Member has complete discretion in choosing his staff and the contracts for professional services that he enters into” ([1995] C.A.I. 222, at p. 227). The document, which is provided directly to the Member, is produced for the Member so that the Member may keep his or her own books and know what his or her own financial margin of manoeuvre is. It is irrelevant that the document may also be used by the services of the National Assembly, or even belong to it. The conditions in s. 34 have been met: the document was produced “for” a member by the services of the National Assembly, and this makes it exempt from access, unless the Member consents. The Commissioner’s decision not to disclose is therefore based on reasonable grounds that can stand up to a somewhat probing examination (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 56).
3. Analysis of the Commissioner’s Decision Under Section 57 of the Access Act
24 The Member for D’Arcy McGee agreed to allow access to the document relating to him that is the subject of the request in this appeal, exercising the discretion given to him by s. 34 of the Access Act. The provisions relating to the confidential nature of nominative information, ss. 53, 54, 55 and 57, apply since they cannot be overridden by the consent given by the Member. If we read the document requested, we find that it contains the names and salaries of the persons who were hired or given contracts of employment. Was it