Federal Court Decisions

     T-1928-96

IN THE MATTER OF an investigation conducted by the Information Commissioner of Canada (the "Commissioner") purportedly pursuant to sections 32 to 37, inclusive of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"), with respect to a complaint made by Michel Drapeau purportedly pursuant to paragraph 30(1)(f) of the Act against Bonnie Petzinger and thereby against the Department of National Defence.

IN THE MATTER OF a report of findings and recommendation (the "report") dated August 16, 1996, issued by the Commissioner purportedly pursuant to section 37 of the Act and received by the Deputy Minister of National Defence on August 18, 1996.

IN THE MATTER OF an application pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended for the following relief: a) a declaration against Michel Drapeau; b) a certiorari to set aside and quash the report; c) a prohibition and/or, in the alternative, an injunction to enjoin the Commissioner from proceeding further with his report, to deliver same or communicate the contents thereof to the public including to Michel Drapeau; d) pursuant to section 18.2 and paragraph 50(1)(b) of the Federal Court Act a stay of the proceedings of the Commissioner pending the outcome of the within proceeding; e) in the event the Commissioner has already communicated the contents of his report and recommendation, an injunction as against Michel Drapeau from making any use of the contents of the said report, to directly or indirectly communicate or disseminate its contents and/or to comment on said contents in any manner, form or forum.

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     and BONNIE PETZINGER

     Applicants

     - AND -

     THE INFORMATION COMMISSIONER OF CANADA

     and MICHEL DRAPEAU

     Respondents

     REASONS FOR ORDER

     (Delivered orally from the Bench

     on August 30, 1996, as edited)

McKEOWN J.

     The applicants seek to have certain affidavits filed confidentially and secondly, the applicants also seek prohibition or an interim interlocutory injunction prohibiting or enjoining the Information Commissioner of Canada (the Commissioner) from publishing or delivering to the respondent Colonel Drapeau a copy of his report of findings or recommendations dated August 16, 1996. In the event that I find that the Commissioner is bound to deliver a copy of the report to Colonel Drapeau, the applicants also seek to enjoin Colonel Drapeau from making any public disclosure of the report.

     Since the commencement of the application, the Deputy Minister of National Defence has informed the Commissioner that his recommendation will not be implemented. Pursuant to subsection 37(3) of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act), the Commissioner has put before me the letter he proposes to send to Colonel Drapeau outlining his findings contained in his report of August 16, 1996 to the Deputy Minister of National Defence.

     Section 37 of the Act provides that the Commissioner shall make a report on any complaints filed pursuant to section 30 of the Act. However, the content of the report is simply recommendations to the department concerned. If the department does not wish to follow the suggestions of the Commissioner, the only resort the Commissioner has is to include this recommendation in his annual report to Parliament. Notwithstanding that it is only a recommendation, and that the report itself states that there is nothing other than a reasonable apprehension of bias and specifically denies any actual bias, the applicants state that the release of the report will cause their proceeding seeking judicial review of the report to become a nullity, and will also cause wrongful and irreparable harm to the credibility of the access to information process, the Department of National Defence and the reputation of its Minister, Deputy Minister and Ms. Petzinger.

     I propose to review the question of a prohibition order or an injunction with respect to the Commissioner's report first. The test is the usual three-part test as set out in Metropolitan Stores v. Manitoba Food and Commercial Workers, [1987] 1 S.C.R. 110; there must be a serious issue, irreparable harm to the applicants and a balance of convenience. In my view, there is no serious issue here with respect to the release of the report. There is no damage to anyone's reputation when the Commissioner finds a reasonable apprehension of bias.

     The applicant, Ms. Petzinger, was accused of conflict of interest with respect to Colonel Drapeau. The Commissioner has specifically denied the allegations of actual conflict of interest against Ms. Petzinger in her dealings with Colonel Drapeau. The Commissioner states, inter alia, "I hasten to add that I do not question the propriety of her actions or of the positions she took."

     The Act requires the release of the report and there is provision under that Act for challenging the report. It is a recommendation which requires a duty of fairness, albeit at a relatively low level. In this case, the Commissioner received oral and written representations from the Department of National Defence, Ms. Petzinger and Colonel Drapeau. Parliament has granted the Commissioner the discretion to determine what recommendations are appropriate in the circumstances of a particular case. It is not for me to review the appropriateness but, rather, I must review the lawfulness. In my view, the Commissioner has met the level of the duty of fairness requirements in the circumstances. Since the Commissioner has performed his investigation pursuant to a proper complaint under paragraph 30(1)(f), I am not prepared to find on the evidence before me that there is a serious issue with respect to lack of jurisdiction. Accordingly, there is no serious issue. I do not have to deal with the question of whether this Court has jurisdiction to hear a matter involving a declaration against a person who is not a federal board, tribunal or commission, although it is clear, in my view, that the Court does not have any such jurisdiction.

     With respect to irreparable harm, I agree with the Commissioner's submissions that the allegations in the affidavits and what is contained in the report do not bear any similarity. The Commissioner has, as stated earlier, found there is only a reasonable apprehension of bias. I am not satisfied that simply because Colonel Drapeau initiated 26 percent of the total of access to information requests, and 70 percent of the total complaints in the Department of National Defence in the last fiscal year, that this will cause the Department of National Defence or Ms. Petzinger irreparable harm if she is precluded from handling these complaints until the pending litigation is completed. There is no irreparable harm to the applicants shown on the facts before me.

     In my view, the balance of convenience favours the release of the report pursuant to the statutory obligation of the Commissioner. I also have found that there is no serious issue nor irreparable harm to the applicants. The applicants will still have their full day in Court. Accordingly, I dismiss the application for a prohibition order or an injunction against the Commissioner and Colonel Drapeau with respect to the release of the report.

     On the question of confidentiality, subsection 35(1) of the Act sets forth Parliament's intention that the investigation of a complaint "shall be conducted in private". Accordingly, the material relating to the investigation of the complaint in the affidavits and exhibits thereto should be kept confidential. This includes the original letter from the Commissioner dated June 7, 1996, the reply from the Deputy Minister of Defence dated July 19, 1996, the letter from the Commissioner dated July 24, 1996, the letter from the Deputy Minister of Defence dated August 8, 1996, and the reply of the Commissioner dated August 9, 1996. However, since there may be other letters that are part of the investigative process, which are in the affidavits and exhibits, I am holding all the affidavits and exhibits and material submitted by counsel confidential until Wednesday, September 4, 1996, or earlier if the parties agree as to which documents relate to the investigation.

     The report of August 16, 1996 shall be made public immediately, and the report of September 3, 1996 may be made public after it has been delivered by the Commissioner to Colonel Drapeau. The application for directions with respect to the confidentiality of certain material in this file is allowed to the limited extent set out herein.

                         _______________________________

                                 Judge

OTTAWA (ONTARIO)

September 20, 1996