Date: 19990426
Docket: T-394-99
OTTAWA, ONTARIO, THIS 26ND DAY OF APRIL 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
THE INFORMATION COMMISSION OF CANADA
Applicant
- and -
THE MINISTER OF INDUSTRY CANADA
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.:
[1] On November 4, 1996 Patrick McIntyre made a request for information pursuant to the Access to Information Act R.S.C. 1985 c. A-1 ("the Act"). On June 6, 1997 the Minister released certain information but withheld a significant number of records on the basis of various exemptions to disclosure , relying on sections 15 (International affairs and national defence),20 (third party information), 21 (government operations), 23 (solicitor-client privilege) and 69 (cabinet material). On July 3, 1997, Mr. McIntyre initiated a complaint, dealing with the non-disclosure of documents by the Minister pursuant to the various exemptions listed above. An investigator was appointed and a protracted process of negotiation and consultation ensued in the course of which many additional documents were disclosed. In the end however, by letter dated December17, 1998 the Minister refused to disclose certain documents which the Information Commissioner considered were not exempt from disclosure on the ground claimed by the Minister (or any other). On January 22, 1999, the Information Commissioner advised Mr McIntyre, pursuant to s. 37 of the Act, that he agreed with certain exemptions claimed by the Minister but that he did not agree with Minister"s position on the disclosure of a particular piece of information, namely the percentage weightings assigned to evaluation criteria used to assess proposals received by the Minister ("the Weightings"). The Commissioner then sought Mr. McIntyre"s consent to apply to this Court for a review of the Minister"s refusal to disclose the Weightings, as provided in s. 42(1) of the Act. Mr. McIntyre consented to an application being made, and as a result a Notice of Application was filed on March 5, 1999. This was followed by a Motion seeking to have the Application designated a specially managed proceeding pursuant to Rule 384 of the Rules, and for a series of directions incidental to the designation as a specially managed proceeding.
[2] Prior to the coming into force of the Federal Court Rules 1998, a practice had developed with respect to the management of applications under the Act. These procedures were reflected in a memorandum to the public and the profession over the signature of the Associate Chief Justice dated December 2, 1993. Under that procedure, applications under the Act were accompanied by a request for directions, pursuant to which a series of issues dealing with parties and scheduling were dealt with. The Information Commissioner continues to bring applications for directions with respect to s. 42 applications even though the Rules have now changed and a procedure and a timetable for applications are set out in Part 5 of the Rules dealing with applications. The Respondent objects to this procedure, arguing that since the Rules now provide a framework for applications such as these, requests for directions are unnecessary and tend to predetermine certain steps which should be dealt with as they arise. In addition the Respondent raises certain specific concerns arising from the type of directions given in the past.
[3] The Respondent questions the role to be played by Mr. McIntyre in the Application. Following the Information Commissioner"s request for consent to bring this application, Mr. McIntyre filed a Notice of Appearance as a Party exercising his right to be added as a party pursuant to s. 42(2) of the Act.
(2) Where the Information Commissioner makes an application under paragraph (1)(a) for a review of a refusal to disclose a record requested under this Act or a part thereof, the person who requested access to the record may appear as a party to the review.
(2) Dans le cas prévu à l'alinéa (1)a), la personne qui a demandé communication du document en cause peut comparaître comme partie à l'instance.
[4] The Respondent requests that Mr. McIntyre be treated as an Intervenor with specific limitations imposed upon his role in the proceeding. While there is precedent for the addition of an Intervenor in proceeding under the Act (see Canada (Information Commissioner) v. Canada (Minister of Defence) (1996) F.C.J. No. 927 where the Commission of Inquiry into the Deployment of Canadian Forces to Somalia was added as an Intervenor), the Act specifically provides that the requester of the information shall be entitled to appear as a party. The Rules do not deal specifically with the differences between a party and an intervener except that the order by which an Intervener is granted status is to set out the manner of the Intervener"s participation and his/her right of appeal. See Rule 109. There are no similar restrictions upon a party. On a plain reading of the Act, I do not believe that I have any discretion to deal with Mr. McIntyre except as a party.
[5] The style of cause of the proceeding will therefore be amended to reflect the addition of Mr. McIntyre as a party. He will have the same rights as other parties with these restrictions:
| 1) by joining himself to the Information Commissioner"s Application, Mr. McIntyre is taken to have accepted the issue as defined by the Information Commissioner in his Notice of Application. Mr. McIntyre is not free to raise issues other than those which the Information Commissioner has raised. If Mr McIntyre wishes to raise other issues, he must do it in an application which he launches under s. 41 of the Act. |
| 2) because Mr. McIntyre and the Information Commissioner are parties identical in interest, they are not entitled to each cover the same ground in submissions or cross examinations on affidavits. They may decide between them who shall take the lead in a particular step, but the party following shall be limited to raising matters not covered by the first party. |
| 3) Mr. McIntyre will not be given access to the confidential affidavits to be filed as this would defeat the purpose of the entire proceeding which is to determine if he should get access to the information in question. If he retains counsel, his counsel will have access to the confidential affidavits according to the terms of the confidentiality order which I will make. |
[6] In the draft order submitted by the Information Commissioner, the Information Commissioner and Mr. McIntyre are given the right to submit Affidavits in reply following receipt of the Respondent"s affidavit material. The Respondent objects to finding himself "sandwiched" between the Information Commissioner"s submissions. The Information Commissioner responds that this proceeding is different from most in that the Application is brought by the Information Commission but that the burden of justifying non-disclosure is upon the Respondent as set out in s. 48 of the Act. If the Information Commissioner does not have a right of reply (by way of Affidavit), then he does not have the opportunity to address the Respondent"s case, which he can only guess at until he sees the affidavit in support. The Respondent says that this can be addressed by an application for leave to file reply evidence in those circumstances where it is appropriate.
[7] I agree with the Information Commissioner that the filing of material should reflect the fact that the Respondent has the burden of justifying non-disclosure. The basis of non-disclosure ought to be set out before the Information Commissioner is called upon to respond to it. The function of the Affidavit filed by the Information Commissioner at the initial stage of the application is to establish the fact and extent of non-disclosure. Once non-disclosure has been established, the onus of justifying non-disclosure lies with the Respondent whose affidavit material sets out the basis of the refusal. The Information Commissioner ought then to have the opportunity to respond to the case made by the Respondent.
[8] The draft order submitted provides that Mr. McIntyre and the Information Commissioner would file material at different times i.e. one would have the advantage of seeing the other"s submissions before filing his own. I do not agree that the filings of the Information Commissioner and the added party, in this case Mr. McIntyre, should be staggered, so that the added party sees the Respondent"s affidavit, then the Information Commissioner"s affidavit before filing his own affidavit. In the same way that multiple defendants are called upon to file their Statements of Defence simultaneously, so should the Information Commissioner and the added party file simultaneously. They are identical in interest and have the opportunity of consultation prior to finalizing and filing their affidavits, as well as their application records.
[9] There is no issue over the making of a confidentiality order in accordance with Rule 152 and such an order will be made.
[10] Finally, the parties agree that if I set a schedule similar to that set out in the draft order submitted by the Information Commissioner (modified to reflect these reasons), then there would be nothing left for the case management judge to do. In the circumstances, therefore, it is not necessary to designate this a specially managed proceeding. If, for whatever reason, the parties require further directions, they are free to apply on the regular chambers list, which may in fact be more expeditious than attempting to bring the matter before a designated judge.
[11] I therefore give the following directions pursuant to Rule 54:
| (1) the style of cause shall be amended to include Mr. Patrick McIntyre as an added party to these proceedings; |
| (2) a confidentiality order is granted in accordance with Rules 151 and 152 of the Federal Court Rules, 1998; |
| (3) the requested records, the disclosure of which is the subject of this application, and any affidavit or other material alleged to contain confidential information may be filed confidentially in accordance with Rule 152 of the Federal Court Rules, 1998. Access to confidential material shall be restricted to the Court, the Information Commissioner, the Minister of Industry Canada, their counsel and advisors until further order of the Court. Any affidavit or other material containing information, which is not confidential, shall form part of the public record; |
| (4) Subject to the aforementioned directions with respect to the confidential material, the following timetable shall apply to the conduct of this application: |
| a) any further affidavit evidence of the Applicant shall be served and filed on or before May 15, 1999; |
| b) any affidavit evidence of the added party shall be served and filed on or before May 15, 1999; |
| c) the Respondent"s affidavit evidence shall be served and filed on or before June 15, 1999; |
| d) any reply affidavit evidence of the Applicant and the Added Party shall be served and filed on or before July 15, 1999; |
| e) Cross-examination, if any, by any party shall take place in the order of any affidavit filed or to be filed; all witnesses shall be excluded during the cross- examination of any other witness, save and except one instructing representative for the Applicant, one for the Respondent and one for the Added Party. If the Added Party files an affidavit, he shall be cross-examined first. Otherwise any representative who is a witness shall be cross-examined first. All cross- examinations shall be completed on or before September 30, 1999; |
| f) the Applicant and the Added Party shall each serve and file his application record and confidential application record, if any, in the form prescribed in Rule 309(2) of the Federal Court Rules, 1998 on or before November 1, 1999; |
| g) the Respondent shall serve and file his application record and confidential application record, if any, in the form prescribed in Rule 310(2) of the Federal Court Rules, 1998 on or before December 1, 1999; |
| h) the hearing of this application for review shall take place at Calgary for one day on Tuesday the 14th day of December 1999 commencing at 9:30 o"clock. |
"J.D. Denis Pelletier"
Judge