Perreault v. Canada (Foreign Affairs)

Perreault v. Canada (Foreign Affairs)
Court (s) Database
Federal Court Decisions
Date
2023-07-31
Neutral citation
2023 FC 1051
File numbers
T-824-22
Notes
A correction was made on March 12, 2024
Decision Content
Date: 20230731
Docket: T-824-22
Citation: 2023 FC 1051
[ENGLISH TRANSLATION]
Ottawa, Ontario, July 31, 2023
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
OLIVIER PERREAULT
Applicant
and
MINISTER OF FOREIGN AFFAIRS
Respondent
PUBLIC JUDGMENT AND REASONS
(Public version released on July 31, 2023)
I. Overview
[1] This is an application for review of the refusal of Global Affairs Canada [Global Affairs or the Department] to produce certain information sought in an access to information request made on December 18, 2017, by the applicant, Olivier Perreault, under section 6 of the Access to Information Act, RSC 1985, c A-1 [Act]. Specifically, in a disclosure of records on January 12, 2021, Global Affairs refused to disclose information regarding a request for legal assistance that Mr. Perreault had submitted to Global Affairs on April 20, 2015, under the Government of Canada’s Policy on Legal Assistance and Indemnification [Policy]. Mr. Perreault was seeking to be represented by the Crown in a dispute with his former domestic employee [Employee] that arose while he was on assignment as an anti-fraud liaison officer at the Embassy of Canada to Colombia.
[2] After making this request for representation, Mr. Perreault waited a number of months but received no reply from Global Affairs. Mr. Perreault therefore made an access to information request in an effort to find out the Department’s official decision. Unhappy with the way in which Global Affairs had applied the exemptions set out in the Act to withhold certain information in the records disclosed, Mr. Perreault made a series of complaints to the Information Commissioner [Commissioner]. The Commissioner’s final report concluded that Global Affairs’ refusal to disclose was in compliance with the Act and, in response, Mr. Perreault applied for a review under subsection 41(1) of the Act. Specifically, Mr. Perreault submits that Global Affairs unfairly applied the exemptions set out in subsection 19(1) and section 23 of the Act to withhold a part of the information he believes should have been disclosed. He is asking this Court to allow his application, with costs, and to order Global Affairs to give him access to the requested records.
[3] For the reasons that follow, I conclude that Global Affairs incorrectly applied the exemption set out in section 23 of the Act to some of the information requested by Mr. Perreault. I also conclude that there is insufficient evidence to establish that the Minister of Foreign Affairs [Minister], on whom the burden of proof rests, properly exercised his discretion to refuse access to the information he was properly withholding under that section. Mr. Perreault’s application should therefore be allowed in part, as discussed in the reasons that follow.
I. Facts and proceedings
[4] From October 2012 to July 2015, Mr. Perreault worked as an anti-fraud liaison officer for the Canada Border Services Agency at the Embassy of Canada to Colombia. His substantive position was Senior Immigration Officer, Citizenship and Immigration Canada. During his posting in Colombia, the embassy’s human resources unit, composed of Global Affairs staff and managers, managed the various administrative and legal aspects of hiring domestic employees. This was part of a broader framework in which the Department managed the logistics of relocating officers on assignment.
[5] The Employee was working for Mr. Perreault at the time of the events that ultimately led to this application. Officially, Mr. Perreault was her employer and was therefore responsible for paying her wages and related contributions; however, Global Affairs calculated the amounts payable and informed the officers, including Mr. Perreault, and provided employee wage information to the various Colombian authorities.
[6] In January 2014, while preparing her retirement file, the Employee was informed by her pension fund that contributions from her employers, including Mr. Perreault, had been made on a minimum-wage basis for many years, whereas her actual salary had generally been higher. As a result, the mandatory contribution amount had not been met. The evidence shows that this situation occurred because the embassy administration had decided to inform all federal public servants employing domestic staff of the contribution amount required on the basis of minimum wage, rather than calculating the amount for each employee on the basis of their actual salary.
[7] On February 10, 2014, the first of a series of meetings involving Mr. Perreault, the Employee, embassy human resources advisers, the pension fund representative and Global Affairs legal counsel was held to sort things out. The Employee was not satisfied with the situation and took legal action against Mr. Perreault and the embassy to claim the unpaid contributions through letters of demand and threats of a civil suit.
[8] Given the situation, Mr. Perreault submitted a request for legal assistance on April 20, 2015, in accordance with the Policy, to be represented in the dispute between him and his former employee. On June 1, 2015, he explained his situation in a telephone conversation with Justice Canada counsel Kathleen McGrath, after which she allegedly stated that she would issue a favourable recommendation for his application. However, despite Global Affairs’ responsibility under the Policy to make a decision regarding Mr. Perreault’s request and provide him with a timely response, and despite Mr. Perreault’s repeated attempts to obtain a response, he ultimately would not receive Global Affairs’ negative decision until November 2022, mere months before the hearing of this application.
[9] On December 18, 2017, Mr. Perreault made a request to Global Affairs, under section 6 of the Act, for access to records relating to its decision regarding his request for legal assistance. On August 29, 2018, Global Affairs provided Mr. Perreault with 52 pages of records; however, information that was exempt under the Act had been redacted. On September 10, 2018, Mr. Perreault made two complaints to the Commissioner, one concerning the application of exemptions in the disclosure of August 29, 2018 [complaint no. 3218-01044], and the other concerning the scope of the documents disclosed on August 29, 2018, which he believed was incomplete [complaint no. 3218-01045].
[10] In the months following receipt of complaint no. 3218-01045, Global Affairs made further inquiries within the branches involved in order to locate additional records relating to the request for information. In response to the inquiries, the Department received an additional 47 pages on September 17, 2019. In addition, the exemptions applied in the disclosure of August 29, 2018, were reviewed in response to complaint no. 3218-01044. On May 21, 2021, Global Affairs provided Mr. Perreault with 99 pages of records, consisting of the 52 newly reviewed pages and the 47 additional pages received and processed.
[11] On July 19, 2021, Mr. Perreault made a new complaint to the Commissioner [complaint no. 5821-01172], regarding the exemptions applied to pages 53 to 99 (the 47 additional pages) in the disclosure of May 21, 2021. On September 1, 2021, Mr. Perreault withdrew complaint no. 3218-01045.
[12] In dealing with complaint nos. 3218-01044 and 5821-01172, Global Affairs reviewed the application of certain exemptions in the disclosure of May 21, 2021. Following this review, the Department made a new 99-page disclosure on January 12, 2022. The pages of this disclosure that contained information withheld under the Act’s exemptions were produced in their entirety in support of the confidential affidavit of the consultant in the Access to Information and Privacy Division, Global Affairs, who carried out the analysis for this disclosure.
[13] In accordance with subsection 37(2) of the Act, the Commissioner provided a final report on March 3, 2022, concluding that Global Affairs had applied the exemptions set out in subsection 19(1), paragraphs 20(1)(c) and 21(1)(b), and section 23 in a manner consistent with the Act and that, where such application was discretionary, Global Affairs had exercised its discretion reasonably.
[14] On April 21, 2022, Mr. Perreault made this application for review against the Minister, the respondent in this case, under subsection 41(1) of the Act. The application concerns only the exemptions under subsection 19(1) of the Act for pages 76, 79 to 82, 90 and 91 of the disclosure of January 12, 2022, and under section 23 of the Act for pages 76 to 83 and 89 to 94 of the same disclosure.
II. Issues
[15] The parties have identified the following issues that I must decide in this case:
Which standard of review applies to issues in an application for review under section 41 of the Act?
Was Global Affairs correct in refusing to disclose personal information under subsection 19(1) of the Act and in identifying certain information as subject to solicitor-client privilege or the professional secrecy of advocates and notaries under section 23 of the Act?
Did Global Affairs exercise its discretion reasonably under section 23 of the Act?
If Global Affairs incorrectly withheld the information requested, what action should be taken?
III. Discussion
A. Which standard of review applies to issues in an application for review under section 41 of the Act?
[16] The relevant legislation is reproduced in the Appendix.
[17] In this case, the relevant categories of information are personal information and information subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege, as set out in sections 19 and 23 of the Act, respectively. To apply the exemptions from disclosure set out in the Act, a government institution must first examine the information contained in the requested records and identify any information that falls under a category of information set out in the Act. The Act sets out the discretion the federal institution has to then disclose the information identified. For example, under subsection 19(1) of the Act, a government institution must refuse to disclose records containing personal information; however, subsection 19(2) gives it the discretion to disclose such information in the cases set out in paragraphs (a) to (c). Similarly, section 23 of the Act provides that a government institution may refuse to disclose any record requested that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.
[18] Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, received Royal Assent and came into force on June 21, 2019. In particular, the amendments to the Act included changes to the Information Commissioner’s powers, including the introduction of the power to order the disclosure of records under section 36.1, and the introduction of section 44.1:
De novo review
Révision de novo
44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.
44.1 Il est entendu que les recours prévus aux articles 41 et 44 sont entendus et jugés comme une nouvelle affaire.
[19] Section 44.1 applies to applications made under section 41 or 44 of the Act. The main difference between the two types of applications is that applications are made under section 41 where a government institution has decided to refuse access to a record and the Commissioner has provided a report under subsection 37(2) in respect of the complaint regarding the refusal, and under section 44 where a government institution has decided to disclose, in response to a request under section 6 of the Act, records to which section 20 of the Act applies. The applicant in a section 44 application is a third party seeking a review of the decision, without the Commissioner having provided a report under subsection 37(2). In addition, no discretionary decisions by the institutional head are at issue in an application under section 44 of the Act.
[20] The parties are in agreement that, under section 44.1 of the Act and the relevant case law, in a review under section 41 of the Act, the judge “steps into the shoes” of the government institution whose decision is impugned and conducts a de novo review of the issues in the decision (Suncor Energy Inc v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2021 FC 138 at para 64 [Suncor]; John Howard Society of Canada v Canada (Public Safety), 2022 FC 1459 at para 31 [John Howard Society]). The applicable standard of review will depend on the provision of the Act relied upon to refuse access. In determining whether information is exempt from disclosure, judges are to reach their own conclusion as to whether the mandatory exemption has been applied correctly. In effect, this type of review is treated de novo, as a new proceeding, and the standard of correctness applies (Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, [2012] 1 SCR 23 at para 53 [Merck Frosst]; Canada (Information Commissioner) v Canada (Public Safety and Emergency Preparedness), 2019 FC 1279 (CanLII) at para 40 [Public Safety]; Cain v Canada (Health), 2023 FC 55 at para 31 [Cain]; Canada (Office of the Information Commissioner) v Canada (Prime Minister), 2019 FCA 95 at para 30 [Prime Minister]). However, where an exemption provides for the discretion to either disclose or refuse to disclose exempted information, the standard of reasonableness applies (3430901 Canada Inc v Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FC 421 [Telezone]; Prime Minister at para 31; Public Safety at para 41; Lukács v Canada (Public Safety and Emergency Preparedness), 2020 FC 1142 at paras 8, 44; Savoie v Canada (Public Safety and Emergency Preparedness), 2022 FC 333 at para 34; Cain at para 32).
[21] I am of the view that a more nuanced approach is needed. I do not think that “step[ping] into the shoes” of the government institution is appropriate in the circumstances. Moreover, as for whether the information is exempted from disclosure, I do not think that we can continue to consider correctness to be the standard of review.
[22] The expression “steps into the shoes” in the context of a de novo review under the Act was first used by Justice Rothstein (as he then was) in Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans) (FCA), 2006 FCA 31 (CanLII), [2006] 3 FCR 610 at paragraph 14, with respect to the standard that applies when an appellate court is reviewing a decision of a subordinate court which itself was conducting a judicial review. In Merck Frosst at paragraph 247, Justice Deschamps, dissenting, referred to an example of a “classic appeal” and not an appeal from a decision on an application under the Act; she quoted Justice Rothstein and stated that “appellate review consists in verifying whether the court at the first level of review has correctly applied the standard in reviewing the administrative decision. What this means in practice is that in ‘step[ping] into the shoes’ of the lower court, an appellate court’s focus is, in effect, on the administrative decision.” Recently, in Bhamra v Canada (Attorney General), 2023 FCA 121, Justice MacTavish of the Federal Court of Appeal noted that the Court’s role in an appeal from a decision of the Federal Court on judicial review of an administrative decision is to determine whether the Federal Court identified the correct standard of review, which requires the Federal Court of Appeal to “step into the shoes” of the Federal Court, focusing on the administrative decision below (see also Société du Vieux-Port de Montréal Inc c Montréal (Ville), 2023 FCA 126 at para 16). The appellant essentially gets a “do-over”—a fresh review of the administrative decision (Haynes v Canada (Attorney General), 2023 FCA 158 at para 16).
[23] However, as I will discuss below, in this case, the Court is not reviewing the government institution’s decision—it may, in fact, consider evidence different from that considered by the government institution—but rather making its own determination as to whether the exemptions from disclosure set out in sections 19 and 23 of the Act apply. I am therefore not persuaded that the expression “step into the shoes” is appropriate with respect to an application under section 44.1 of the Act (see Justice Webb’s remarks in Canada (Health) v Elanco Canada Limited, 2021 FCA 191 at para 30 [Elanco]; Prime Minister at para 28; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559 at paras 46, 47; Canada (Attorney General) v Lawlor, 2023 FCA 73 at para 8; Northern Regional Health Authority v Horrocks, 2021 SCC 42 at paras 10–12; Stuckless v Canada (Attorney General), 2023 FCA 69 at para 3; Northern Inter-Tribal Health Authority Inc v Yang, 2023 FCA 47 at para 46; Alliance for Equality of Blind Canadians v Canada (Attorney General), 2023 FCA 31 at para 5).
[24] Regarding the standard of correctness, because of the de novo nature of the review provided for in section 44.1 of the Act, issues raised in an application under section 41 of the Act appear to be exempt from the presumption of reasonableness review set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 69 [Vavilov], because Parliament clearly provided for a different standard of review (Vavilov at paras 32, 34, 69; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 20; Canada (Attorney General) v National Police Federation, 2023 FCA 75 at paras 33, 35).
[25] In addition, there is an ambiguity, namely, the semantic shift that seems to have occurred between “de novo review” and “correctness review” in the interpretation of section 44.1 of the Act, such that the presence of a de novo review has been interpreted as meaning that the correctness standard of review applies. Indeed, even before the adoption of section 44.1 of the Act, this shift had been identified by the Supreme Court in Merck Frosst at paragraph 53, in the context of an application under section 44 of the Act. Both concepts have the effect of not deferring to the original decision maker, but for different reasons that stem from the inherent distinctions between them.
[26] In Vavilov, the Supreme Court considered the differences between correctness review and de novo review (Vavilov at paras 83, 116, 124). De novo review under section 44.1 of the Act rejects the notion of deference because it involves starting anew with an analysis of the facts and law specific to the case, necessarily ignoring the entire process followed in earlier proceedings. Correctness review is more limited in scope. This distinction was articulated clearly by Justice Heneghan in Suncor: in a de novo hearing, the judge does not necessarily determine whether the government institution was correct, whereas, on correctness review, the Court is asking whether the original decision maker made the right decision (Suncor at paras 64, 65; John Howard Society at para 31).
[27] The nuanced difference between de novo and correctness review was pointed out by Justice McVeigh in John Howard Society at paragraph 36: she stated that the analysis in de novo review under subsection 19(1) of the Act was “akin to a correctness review”. This remark is also consistent with the observations of the Federal Court of Appeal in Canada (Health) v Preventous Collaborative Health, 2022 FCA 153 [Preventous]: an application under section 44 of the Act—and under section 41, which is similarly worded—is not a judicial review of an administrative decision, but rather, in the words of sections 41 and 44, a fresh review of the matter. Justice Grammond stated:
[12] But to reiterate, the application under section 44 is not a judicial review of an administrative decision but rather, in the words of section 44, a fresh “review of the matter”. The “matter” is whether the information requested should be disclosed. In many cases, a significant issue in deciding that matter will be whether the exemptions under the Act apply: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at paras. 53 and 250.
[13] Section 44.1 of the Act, a recent amendment to the Act, supports this interpretation. Section 44.1 provides that the application made to the Federal Court is “to be heard and determined as a new proceeding”. The proceeding does not concern what the holder of the information requested, here the Minister, did or did not do, or should do or should have done. That is the normal subject-matter of an application for judicial review, not a section 44 application. Rather, under section 44 the issue is whether the information requested should be disclosed to the requester. See Merck Frosst, above.
[14] Section 44.1 requires the Federal Court to receive evidence in a “new proceeding”; in other words, the evidentiary record must be built afresh. It is not limited to what was before the Minister or the Information Commissioner. As well, the parties in the Federal Court are not limited to submissions based on what was before the Minister or the Information Commissioner, as they would be in a judicial review. Rather, they are free to make submissions on whether disclosure must be made under the Act. After receiving submissions, the Federal Court is to make its own findings of fact on the basis of the fresh evidentiary record filed before it, apply the provisions of the Act and the existing jurisprudence to that evidentiary record, and ultimately decide whether the information should be disclosed. In short, as many cases suggest, in this way the Federal Court is acting de novo: see, e.g., Merck Frosst at paras. 53 and 250-251 and cases cited therein.
[15] This interpretation of section 44.1 is supported not only by the plain text of the Act and Merck Frosst, but also by the express statement of purpose in the Act that “the disclosure of government information should be reviewed independently of government”: para. 2(2)(a). Vesting the independent and impartial Federal Court with the power to review, de novo, the disclosure of government information furthers that statutory purpose.
[Emphasis added.]
[28] The principle that there is no standard of review in a de novo proceeding was noted by Justice Gauthier in Huruglica v Canada (Citizenship and Immigration), 2016 FCA 93 (CanLII), [2016] 4 FCR 157 at paragraph 79, where, in discussing whether an appeal to the Refugee Appeal Division of the Immigration and Refugee Board was a de novo appeal, she stated:
I also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.
[Emphasis added.]
[29] In this case, in a de novo proceeding, the Court is not reviewing a government institution’s decision but rather making its own determination as to whether the exemptions from disclosure set out in sections 19 and 23 of the Act apply. Section 44.1 provides for the Court to simply ask what decision it would have made (Vavilov at para 83).
[30] Moreover, it cannot be said that, in a proceeding under section 41 of the Act, the Court is reviewing the Commissioner’s report pursuant to subsection 37(2) of the Act, regardless of whether that report contains a disclosure order pursuant to subsection 31.1(6) of the Act (Lukács v Canada (Public Safety and Emergency Preparedness), 2020 FC 1142 at paras 8, 44). As Justice Stratas stated in Preventous at paragraph 14, the Court’s decision is not limited to what was before the Minister or the Commissioner, as it would be in a judicial review; the parties are free to make submissions on whether disclosure must be made under the Act. After receiving submissions, the Federal Court is to make its own findings of fact on the basis of the fresh evidentiary record filed before it, including any issues dealt with in the order contained in the Commissioner’s report, apply the provisions of the Act and the existing jurisprudence to that evidentiary record, and ultimately decide whether the information should be disclosed. It seems to me that this is independent of whether or not the Commissioner made an order under subsection 36.1(1) of the Act. Although these new powers of the Commissioner mean that the Court may no longer be a first-instance decision maker on the facts and the law (see Preventous at para 20), I do not see how section 44.1 can be interpreted differently depending on whether the application is made under section 41 or section 44 of the Act.
[31] Therefore, the Court’s de novo review has no bearing on which standard of review applies to the disputed elements of the government institution’s decision or to an order contained in the Commissioner’s report. It is therefore incorrect to assert that Parliament’s intention in enacting section 44.1 of the Act is to confirm, by means of an express statutory provision, that the correctness standard applies to all or part of the Court’s analysis of whether the head of a government institution is authorized to refuse disclosure. It should be recalled that the courts have always decided to apply the standard of correctness, especially on review under former section 41 of the Act, on the basis of analyzing the degree of deference owed to the government institution when its discretion was not at issue (Prime Minister at para 30).
[32] That said, the notion that the judge is not concerned with the decision of the Minister or the Commissioner in a de novo proceeding applies where there is no discretion involved (see Merck Frosst at para 53; Preventous; Elanco). However, the situation is less clear when the Act provides that the Minister has discretion to decide whether to disclose information (Merck Frosst at para 251).
[33] Before section 44.1 of the Act came into force—and before Vavilov—the decisions of government institutions to refuse access to information were recognized as consisting, on the one hand, of legal interpretations and their application to the facts of the case and, on the other hand, of an exercise of their discretionary power, reviewable on the standard of correctness and the standard of reasonableness, respectively (Prime Minister at paras 30–31). The use of a de novo proceeding was tied to the wording of section 49 of the Act, which refers to exemptions set out in the Act on the basis of category of information and not prejudice, and was restricted to cases where the Court was assessing whether the head of a government institution was authorized to refuse disclosure. As the Supreme Court of Canada stated in Dagg v Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403 [Dagg]:
[107] Section 49 directs the reviewing court to determine whether or not the head of the government institution who has refused disclosure was in fact “authorized” to do so. As I have discussed, the Access to Information Act provides a general right of access to government-held information, subject to certain exceptions. If the information does not fall within one of these exceptions, the head of the institution is not “authorized” to refuse disclosure, and the court may order that the record be released pursuant to s. 49 of the Act. It is clear that in making this determination, the reviewing court may substitute its opinion for that of the head of the government institution. The situation changes, however, once it is determined that the head of the institution is authorized to refuse disclosure. Section 19(1) of the Access to Information Act states that, subject to s. 19(2), the head of the institution shall refuse to disclose personal information. Section 49 of the Access to Information Act, then, only permits the court to overturn the decision of the head of the institution where that person is “not authorized” to withhold a record. Where, as in the present case, the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in s. 49 is exhausted.
[Emphasis added.]
[34] Following the reasoning in Dagg, once it was concluded on de novo review that the head of the government institution was authorized to refuse disclosure, the de novo review ended, and any further discretion authorized by the Act was assessed on a standard of reasonableness; such further discretion was not exempt from the presumption of reasonableness review.
[35] This distinction is not made in the wording of section 44.1 of the Act, which seems to cover all the matters that are subject to an application for review under section 41 of the Act. However, to assess the exercise of discretion de novo would be to substitute the discretion of the reviewing judge for that of the institutional head under the Act—a jurisdiction that belongs solely to the Minister. To my knowledge, this is not authorized by the Act. The Court’s powers under section 44.1 are not as extensive as, for example, the statutory treatment of new evidence in an appeal under the Trademarks Act, RSC 1985, c T-13 [TMA], where a judge, on an appeal from a decision of the Registrar of Trademarks, may specifically exercise any discretion vested in the Registrar where evidence is adduced that is in addition to the evidence that was adduced before the Registrar (TMA, s 56(5)). It is also clear that a de novo review under section 44.1 of the Act necessarily omits the perspective of the government institution (Vavilov at para 307).
[36] The Minister submits that the first part of the test—for example, whether the section 23 privilege applies—is a de novo review of a binary question: either the privilege applies or it does not. The second part of the test—whether to disclose privileged information—is a discretionary decision, so I must consider the reasonableness of the decision. Although section 44.1 of the Act does not make this distinction, the Minister submits that reference should be made to section 49 of the Act, which states that de novo review is restricted to the first part of the test, that is, to cases where refusal is not authorized. The Minister refers to Dagg at paragraph 110, although it predates section 44.1 of the Act, and to Kelly v Canada (Solicitor General) (1992), 53 FTR 147 [Kelly] at paragraph 7, and submits that it is the reasonableness test set out in Vavilov that applies to the second part of the test.
[37] Indeed, a discretionary decision of the government institution, for example based on subsection 19(2) of the Act, is not to be reviewed on a de novo standard of review (Dagg at para 16; John Howard Society at para 42); moreover, the Supreme Court stated clearly in Vavilov that analyzing the exercise of discretion by a government institution is inconsistent with de novo review (Vavilov at paras 83, 116, 124). Justice McVeigh also noted the dilemma in John Howard Society at paragraph 42, where she stated that it was illogical to apply a de novo review to an exercise of discretion. That said, sections 41 and 44.1 of the Act are also clear; they state that an “[application for] review of the matter that is the subject of the complaint” “is to be heard and determined as a new proceeding”. This means all applications and matters, not some of them.
[38] Although problematic, section 44.1 of the Act must be interpreted in the context of a review of a discretionary decision by the head of a government institution. Vavilov teaches that, in such cases, “[a] court interpreting a statutory provision does so by applying the ‘modern principle’ of statutory interpretation, that is, that the words of a statute must 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’” (Vavilov at para 117; John Howard Society at para 39). To gain a better understanding of Parliament’s intent, it is worth reproducing here the exchange between the Honourable Frances Lankin, Senator, and Nancy Othmer, Assistant Deputy Minister, Public Law and Legislative Services Sector, at the meeting of the Standing Senate Committee on Legal and Constitutional Affairs held on February 27, 2019, during the second reading of the bill by the Senate:
[Original]
[Translation]
Senator Lankin: If I may, the bill, as it amends the act, replaces current provisions with a de novo review. In my past experience on administrative law tribunals, the principle of judicial review and respecting the expertise of the body that has looked at this is well established, and there’s good reason for it. If there was a judicial review, we would have the findings of the commissioner based on the evidence and the information that was brought forward.
La sénatrice Lankin : Si vous me le permettez, le projet de loi, tel qu’il modifie la loi, remplace les dispositions actuelles par une révision de novo. D’après mon expérience des tribunaux de droit administratif, le principe du contrôle judiciaire et du respect de l’expertise de l’organisme qui s’est penché sur la question est bien établi, et il y a de bonnes raisons à cela. S’il y avait un contrôle judiciaire, nous aurions les conclusions de la commissaire en fonction de la preuve et des renseignements qui ont été présentés.
I’m a bit concerned about moving to a de novo situation where new evidence can be presented and evidence that wasn’t considered. It feels to me like there’s a very significant opportunity to undermine the role of the commissioner. . . .
Je m’inquiète un peu de l’idée de passer à une situation de novo où de nouveaux éléments de preuve peuvent être présentés et d’autres qui n’ont pas été pris en considération. J’ai l’impression qu’il y a une occasion très importante de miner le rôle de la commissaire. . . .
. . .
. . .
Ms. Othmer: The first way I would like to answer your question is to reinforce the idea that a de novo review for the Access to Information Act recommendations that currently exist is the case at the Federal Court right now. So we’re not changing what currently exists.
Mme Othmer : La première façon dont j’aimerais répondre à votre question est de renforcer l’idée selon laquelle une révision de novo des recommandations de la Loi sur l’accès à l’information qui existent actuellement est le cas à la Cour fédérale à l’heure actuelle. Nous ne modifions donc pas ce qui existe actuellement.
What has changed, really, is that there’s an order. So instead of a recommendation, there’s an order in place that is subject to a de novo judicial review.
Ce qui a vraiment changé, c’est qu’il y a une ordonnance. Donc, au lieu d’une recommandation, il y a une ordonnance en place qui fait l’objet d’une révision judiciaire de novo.
We had jurisprudence that suggested that the Information Commissioner’s recommendations, once they got to court, were really not a question of whether there would be deference to the recommendations. The court held that there would be a de novo look at whether the exceptions were applied properly, whether it was out of time, and the rest of the questions the court might face.
Selon la jurisprudence, les recommandations de la commissaire à l’information, une fois soumises aux tribunaux, n’étaient pas vraiment une question de déférence à l’égard des recommandations. La cour a statué qu’il y aurait un nouvel examen de novo pour déterminer si les exceptions étaient appliquées correctement, si le temps était écoulé et le reste des questions auxquelles le tribunal pourrait être confronté.
So the de novo is not new; it’s a continuation. What is new is the fact that the commissioner gets to make orders.
Donc, l’aspect de novo n’est pas nouveau; c’est une continuation. Ce qui est nouveau, c’est que la commissaire peut prendre des ordonnances.
. . .
. . .
At some point, let’s say we end up at a de novo hearing. We think the de novo hearing is a better opportunity to revisit procedural fairness concerns that may have occurred during the course of the investigation on three levels. Third parties, the actual applicants who are looking for the information and the Information Commissioner can all be before the court.
À un moment donné, disons que nous nous retrouvons avec une audience de novo. Nous pensons que l’audience de novo est une meilleure occasion de revenir sur les préoccupations relatives à l’équité procédurale qui ont pu survenir au cours de l’enquête à trois niveaux. Les tierces parties, les demandeurs réels qui cherchent à obtenir l’information et la commissaire à l’information peuvent tous comparaître devant le tribunal.
. . .
. . .
(“Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts” 2nd reading, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 42-1, Issue No. 56 (February 27, 2019)) [Senate Committee Proceedings]
(« Projet de loi C-58, Loi modifiant la Loi sur l’accès à l’information, la Loi sur la protection des renseignements personnels et d’autres lois en conséquence », 2e lecture, Délibérations du Comité sénatorial permanent des Affaires juridiques et constitutionnelles, 42-1, fascicule no 56 (27 février 2019)) [Délibérations du Comité sénatorial]
[Emphasis added.]
[Je souligne.]
[39] First, it is clear from this discussion that the substantial amendments made to the Act by Parliament are the result of Parliament’s desire to strengthen the role of the Information Commissioner by replacing the ability to make recommendations, previously provided for in section 37 of the Act, with the power to make orders, now provided for in subsection 36.1(1) of the Act. It is also clear that Parliament, by emphasizing the de novo nature of the review by the Federal Court, was seeking to make it clear that the review mechanism is a “continuation” of the manner in which the Court conducted its review, in this case under section 49 of the Act, prior to the amendment provided for in Bill C-58.
[40] I cannot disregard section 44.1 of the Act. As stated in Vavilov, “[a]ny framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review” (Vavilov at para 34). Moreover, as we have seen, a de novo review starts anew the entire decision-making process that is the subject of the review, and it is therefore incompatible with the usual consideration of whether the process and the decision itself are reasonable (Vavilov at paras 83, 116, 124). In my opinion, the only way out of this dilemma is to adopt the approach taken by the Supreme Court in Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62 (CanLII), [2005] 3 SCR 141 at paragraph 14. It is not necessarily a question of reading down but rather of determining whether, on a fair reading of section 44.1 of the Act, that provision is limited to undertaking a de novo review solely with respect to the question of whether the head of the government institution was authorized to refuse disclosure; to that question, I must answer yes.
[41] I am of the opinion that taking into account the nature of the de novo review, the fact that section 49 of the Act has not been amended, the discussion that took place at the meeting of the Standing Senate Committee on Legal and Constitutiona