Date: 20050421
Docket: T-1600-04
Citation: 2005 FC 541
Ottawa, Ontario, April 21, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
THOMAS JUSDANIS
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 of a decision rendered by the Director of Access of Information and Privacy Directorate for CCRA in which he refused the disclosure of certain records in its possession under subsections 19(1) and 24(1) and paragraph 16(1)(c) of the Access to Information Act, R.S.C. 1985 c. A-1 (Act). The applicant asks that the Court orders the respondent to release the records or portions of records that have been withheld.
ISSUE
[2] The preliminary issue is as follows:
1. Is Mr. Jusdanis a proper party to this application for judicial review?
[3] For the following reasons, I must answer this question in a negative manner. Therefore, the application for judicial review will be dismissed.
BACKGROUND
[4] On or about April 10, 2003, Mr. Jusdanis (the applicant) submitted several Access to Information requests to Canada Customs and Revenue Agency (CCRA) pertaining to file numbers A-018985, A-018986, A-108987, A-018988 and A-018991 on behalf of Found Money Inc.
[5] In June 2003, the Manager of Access to Information and Privacy Division for CCRA, provided some information but stated that other information had been removed pursuant to subsections 19(1) and 24(1) and paragraph 16(1)(c) of the Act.
[6] In July 2003 and August 2003, the applicant, on behalf of Found Money Inc., sent to the Office of the Information Commissioner of Canada complaints for non-disclosure.
[7] In April 2004, the Director of Access of Information and Privacy Directorate for CCRA, provided additional information as a result of negotiation with the Investigator of the Office of the Information Commissioner. However, he mentioned that some information had been removed and replaced with certain notations referring to subsections 19(1) and 24(1) and paragraph 16(1)(c) of the Act.
[8] On August 2004, the applicant and Found Money Inc., filed a joint notice of application for judicial review with respect to the decision of the Director of Access of Information and Privacy Directorate for CCRA dated July 26, 2003.
[9] Found Money Inc. subsequently brought a motion for leave to be represented by its corporate officer, Mr. Jusdanis, in this proceeding, rather than a solicitor. Prothonotary Milczynski dismissed the motion by Order dated September 13, 2004.
CONTESTED DECISION
[10] The decision of the Director of Access of Information and Privacy Directorate for CCRA refused to disclose some information. He mentioned that the information had been withheld in each file in part because such information was either personal information concerning a third party (subsection 19(1) of the Act), the information would be injurious to the enforcement of the law or the conduct of an investigation (paragraph 16(1)(c) of the Act) and finally, because the release of some information was prohibited by subsection 24(1) and Schedule II of the Act in conjunction with section 241 of the Income Tax Act.
RELEVANT PROVISIONS
Access to Information Act
| Law enforcement and investigations
16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; or
Personal information
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
Where disclosure authorized
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or (c) the disclosure is in accordance with section 8 of the Privacy Act.
Statutory prohibitions against disclosure
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
Review of statutory prohibitions by Parliamentary committee
(2) Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.
REVIEW BY THE FEDERAL COURT
Review by Federal Court
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow. |
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Enquêtes
16. (1) Le responsable d'une institution fédérale peut refuser la communication de documents : d'enquête déterminé par règlement, au cours d'enquêtes licites ayant trait :
c) contenant des renseignements dont la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment :
(i) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée, (ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle,
(iii) des renseignements obtenus ou préparés au cours d'une enquête;
Renseignements personnels
19. (1) Sous réserve du paragraphe (2), le responsable d'une institution fédérale est tenu de refuser la communication de documents contenant les renseignements personnels visés à l'article 3 de la Loi sur la protection des renseignements personnels.
Cas où la divulgation est autorisée
2) Le responsable d'une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
a) l'individu qu'ils concernent y consent;
b) le public y a accès;
c) la communication est conforme à l'article 8 de la Loi sur la protection des renseignements personnels.
Interdictions fondées sur d'autres lois
24. (1) Le responsable d'une institution fédérale est tenu de refuser la communication de documents contenant des renseignements dont la communication est restreinte en vertu d'une disposition figurant à l'annexe II.
Examen des dispositions interdisant la communication
(2) Le comité prévu à l'article 75 examine toutes les dispositions figurant à l'annexe II et dépose devant le Parlement un rapport portant sur la nécessité de ces dispositions, ou sur la mesure dans laquelle elles doivent être conservées, au plus tard le 1er juillet 1986, ou, si le Parlement ne siège pas, dans les quinze premiers jours de séance ultérieurs.
RÉVISION PAR LA COUR FÉDÉRALE
Révision par la Cour fédérale
41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation. |
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Federal Courts Rules
| Corporations or unincorporated associations
120. A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be.
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Personne morale, société de personnes ou association
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ANALYSIS
1. Is Mr. Jusdanis a proper party to this application for judicial review?
[11] Rule 120 of the Federal Courts Rules provides that a corporation must be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member. In the case at hand, Found Money's motion to be represented by corporate officer, Mr. Jusdanis, was denied since the case did not represent special circumstances that would warrant divergence from the fundamental principle set out in the above mentioned rule.
[12] On December 22, 2204, the applicant served and filed an application record in his name solely. On January 10, 2005, the respondent filed a motion to strike Mr. Jusdanis as a party to the proceeding. Prothonotary Lafrenière noted that the affidavit filed by Mr. Jusdanis was ambiguous when referring to the request made pursuant to the Access to Information Act in April 2003 because he did not identify who made the request.
[13] Prothonotary Lafrenière stated that it was open to Mr. Jusdanis to argue that he had standing to file the complaints with the Information Commissioner and to bring the application for review. In his decision, he declined the respondent's motion to strike Mr. Jusdanis as a party but left the possibility for the respondent to take the position at the hearing of the application for judicial review that Found Money Inc. had in fact made the request, and that Mr. Jusdanis therefore dit not have standing to bring the application for review. However, since Found Money Inc. had failed to appoint a solicitor and file its record within the time limits, Prothonotary Lafrenière decided to strike Found Money Inc. as a party to the proceeding.
[14] Section 41 of the Act provides that "any person who has been refused access to a record requested under this Act or a part thereof may [...] apply to the Court for a review of the matter [...]". The French version provides that "La personne qui s'est vu refuser communication totale ou partielle d'un document...". In the present case, the request to access was sent by Mr. Jusdanis on behalf of Found Money Inc. Each request for information received read as follows:
Please provide the following information pursuant to the Access to Information and Privacy Act with respect to Found Money Inc. ("Requester") (BN XXXXXXX) from the periods : January 1, 1995 to present. A $5 postal money order is included. Thank you. (My emphasis)
[15] The "requester" is Found Money Inc. Therefore, the person who has been refused access to information is Found Money Inc. Of course, the name of Mr. Jusdanis appears on every communication between the respondent and Found Money Inc. as Mr. Jusdanis is the one who made the request on behalf of Found Money Inc.
[16] Mr. Jusdanis explained that he is the director of the company. This is really important because if he had not been acting on behalf of the "requester", he would not have been entitled, personally, to any of the information, which was released. In this regard, paragraph 241(1)(a) prohibits the release of taxpayer information to anyone else but the taxpayer. It is clear that only an official of the requester was entitled to receive the information that was released on behalf of Found Money Inc.
[17] However, even if Mr. Jusdanis was considered the appropriate official to receive the information on behalf of Found Money Inc. because of his status of director of the company, it does not mean that Mr. Jusdanis possesses the appropriate status to file an application for judicial review.
[18] After considering the oral and written arguments of both parties and the relevant provisions of the law, I am of the opinion that Mr. Jusdanis is not entitled, pursuant to section 41 of the Act, to file an application for judicial review for the following reasons :
1. Mr. Jusdanis was not personally refused access to information such as provided in section 41 of the Act;
2. Found Money Inc. is the entity who was refused access to information;
3. Mr. Jusdanis, in his status as director of the company, was denied the right to represent Found Money Inc. in a proceeding for judicial review;
4. On June 3, 2003, the respondent requested Mr. Jusdanis to provide proof that he was authorized to represent the company, Found Money Inc. On June 5, 2003, Mr. Jusdanis provided the respondent with a Province of Ontario Corporation Profile Report for Found Money Inc. This profile showed the applicant as an officer of the company;
5. All letters from Mr. Jusdanis are signed by him as the president of Found Money Inc.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed with cost to the respondent.
"Michel Beaudry"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: THOMAS JUSDANIS v.
MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2005
APPEARANCES: