Federal Court

Cour fédérale

 

Date: 20100924

Docket: T-1552-09

Citation: 2010 FC 954

[REVISED ENGLISH TRANSLATION]

 

Ottawa, Ontario, September 24, 2010

PRESENT:     The Honourable Mr. Justice Boivin 

 

BETWEEN:

CANADIAN BROADCASTING

CORPORATION

 

Applicant

and

 

INFORMATION COMMISSIONER

OF CANADA

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review under sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F‑7. This application is with respect to a dispute between the Canadian Broadcasting Corporation / Société Radio-Canada (the CBC) and the Information Commissioner of Canada / Commissaire à l’information du Canada (the Commissioner). The dispute in question essentially involves the authority of the Commissioner to order the CBC to produce records under the Access to Information Act, RSC 1985, c A-1 (the Act).

 

[2]               In this application for judicial review, the CBC is seeking a declaration that the Commissioner does not have authority to order access to the CBC records, by order or otherwise, on the ground that those records fall under the exclusion set out in section 68.1 of the Act.

 

Factual Background

[3]               The CBC has been subject to the Access to Information Act since September 2007, when the legislation was amended. The amendment making the CBC subject to the Act had been discussed and debated by committees and task forces. At the end of that process, the amendment was incorporated in the legislation by section 68.1, which reads as follows: 

 

[4]               Subsequently, between December 2007 and June 2009, the CBC received a number of access to information requests. Several of those requests were refused on the ground that they were considered to be excluded from the Act under section 68.1. In addition, the Court notes that the refusal letter that the CBC sends to a person requesting access indicates that a complaint regarding the refusal may be addressed to the Information Commissioner [Applicant’s Record, Tab B: examination of Pierre Nollet, p 52, paras 150-151].

 

[5]               The Information Commissioner received 16 complaints from individuals whose access requests were refused by the CBC. The Commissioner initiated an investigation to deal with the complaints. In the course of her investigation, the Commissioner asked the CBC to disclose a number of records to her.

 

[6]               The Commissioner’s request was refused by the CBC on the grounds that the information contained in the records subject to the 16 access requests under investigation are excluded from the Act because, under section 68.1, the records relate to CBC’s journalistic, creative or programming activities.

 

[7]               In response to the CBC’s refusal, the Commissioner stated that, on the contrary, section 68.1 of the Act gives her authority to examine the records in order to determine whether she may exercise the authority provided by the Act in respect of information relating to the general administration of the CBC. The Commissioner alleges that, in order to determine her authority, the Act provides her with the right to examine all CBC records, including records that, in the opinion of the CBC, contain information relating to its journalistic, creative or programming activities. Accordingly, the Commissioner is of the view that she has the authority to order the CBC to disclose those records to her for examination.

 

[8]               On September 15, 2009, the Commissioner ordered the CBC to disclose to her copies of the records in respect of which the access requests were made. In the meantime, the CBC brought an application for judicial review seeking a declaration that the Commissioner does not have authority to order disclosure of records excluded under section 68.1 of the Act. In response to that development, the Commissioner agreed to suspend her investigation pending the final decision of this Court.

 

Issue

[9]               The only issue in this application for judicial review is the following : Does the Information Commissioner of Canada have authority to order the CBC to disclose records, including records that, in the opinion of the CBC, relate to its journalistic, creative or programming activities, in order to determine whether those records fall under the exception, and consequently whether they are excluded under section 68.1 of the Act?

 

Standard of Review

[10]           In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court of Canada held that there are two standards of review that may be applied to the decisions of administrative bodies and federal tribunals: correctness and reasonableness. The Supreme Court of Canada also stated that where there is a question of law or a true jurisdiction question, as in this case, the standard of review must be correctness:

[59] … It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.  In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose‑leaf), at pp. 14-3 to 14-6. …

 

[11]           Because this case raises a true jurisdiction question, the standard of review that applies here is correctness.

 

Analysis

[12]           In order to interpret section 68.1 of the Act and determine the authority of the Commissioner, it is useful at this stage to do a brief overview of certain provisions of the Act.

 

[13]           The general principle by which we must be guided in interpreting the Act is set out in section 2. This section plainly states that the purpose of the Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, subject to limited and specific exceptions and exclusions.

 

[14]           The spirit of the Act is based on the principle of disclosure. Under the Act, non‑disclosure of information under the control of government institutions is the exception (see Canada Post Corp. v Canada (Minister of Public Works) (C.A.), [1995] 2 FC 110, [1995] FCJ No 241, at para 34). Where access is refused, the Act establishes a process for review by the Information Commissioner of Canada. In performing her functions, the Commissioner is independent and impartial. She acts as a de facto ombudsofficer. In Rowat v Canada (Information Commissioner), [2000] FCJ No 832, 193 FTR 1, at para 28, the Court stated that the Commissioner’s function is independent:

[28] With respect to the independence of the Commissioner, no issue is taken with the following observations made in the argument advanced by the Commissioner:

 

The Commissioner is a neutral and independent ombudsofficer charged with supervising the administration of the Access to Information Act and government action in relation thereto and is limited to making recommendations to government institutions or to Parliament regarding the disclosure of government information and the administration of the Access to Information Act. [Access to Information Act, s.2(1), 30, 37, 38, 39, 55 and 5] …

 

[15]           In addition, under section 4 of the Act, government institutions must respond to all access requests, unless they can show that the information falls under an exception set out in the Act (see Rubin v Canada (Minister of Transport) (C.A.), [1998] 2 FC 430, [1997] FCJ No 1614, at para 19).

 

[16]           It should also be noted that in Canada (Privacy Commissioner) v Canada (Labour Relations Board), [1996] 3 FC 609, [1996] FCJ No 1076, at para 47, the Court recognized that the Access to Information Act has quasi-constitutional status:

[47] The broad, purposive approach afforded by this Court to the interpretation of both the Access Act and Privacy Act originates in part from this legislation's particular status. Subsection 4(1) of the Access Act provides that the Act applies "notwithstanding any other act of Parliament," lending it a quasi-constitutional status. …

 

[17]           With respect to the operation of the Act, it provides a two-stage review mechanism by which refusal of an access request by a government institution may be reviewed to ensure that the person requesting access is protected.

 

[18]           It is the role of the Commissioner, who is appointed by Parliament and independent of the government, to conduct the first stage of the review. The Act also provides that once the Commissioner has completed her investigation and her report has been released, the second stage of the review is to be conducted by the Federal Court (sections 40 and 41).

 

[19]           A complainant whose access request has been refused is entitled to an objective and independent investigation and be informed of the Commissioner’s findings regarding the results of the investigation. As the Federal Court of Appeal observed in Canada (Information Commissioner) v Canada (Minister of National Defence), [1999] FCJ No 522, 240 NR 244, at para 27:

[27] The investigation the Commissioner must conduct is the cornerstone of the access to information system. It represents an informal method of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power to make recommendations to the institution involved. The importance of this investigation is reinforced by the fact that it constitutes a condition precedent to the exercise of the power of review, as provided in sections 41 and 42 of the Act.

 

[20]           In this case, the CBC argues the principles of the statutory interpretation, which holds that the words of an Act are to be read harmoniously with the scheme of the Act (see Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 SCR 141, at para 9). The CBC also argues that a contextual analysis of subsection 36(2) and section 68.1 of the Act leads to the conclusion that the Commissioner may not order the CBC to disclose information to her. Subsections 36(1) and 36(2) read as follows:

 

 

[21]           While subsection 36(1) assigns certain powers to the Commissioner, including the power to examine records or to have records disclosed to her, subsection 36(2) gives the Commissioner access to any record that is under the control of a government institution. Counsel for the CBC pointed out, however, that subsection 36(2) includes an important caveat, in that the Commissioner has access to any record “to which this Act applies”. Because section 68.1 defines the records to which the Act does not apply, the CBC contends that the Commissioner does not have authority to compel the CBC to disclose records to her to which the Act does not apply.

 

[22]           The CBC also relies broadly on the historical context, which it describes as crucial, to the extent that it clarifies the intention of Parliament. For example, the CBC refers to the interdepartmental task force created by the Government of Canada in 2000 to review all aspects of the access scheme and recommend improvements. At that time, the CBC argued the possible consequences of making all of its journalistic activities subject to the Act, and in particular its independence from the government. In 2002, in a report tabled in Parliament, the then Commissioner advocated a scheme containing exceptions rather than exclusions, and in 2005 the Commissioner proposed a series of amendments to that effect. Parliament did not incorporate that proposal in Bill C-2, An Act Providing for Conflict of Interest Rules, Restrictions on Election Financing and Measures Respecting Administrative Transparency, Ovversight and Accountability. In May and June 2006, the Commissioner opposed the creation of an exclusion scheme for the CBC, fearing that it would prevent independent review by the Commission and the Federal Court. The Act was amended and Parliament included the exclusion in section 68.1 [Applicant’s Record, Applicant’s Memorandum, at pp 10-18].

 

[23]           Relying on an historical analysis of the enactment of section 68.1 and the objective and the grammatical meaning of the Act, and in particular of subsection 36(2), the CBC submits that the Commissioner does not have authority to order it to disclose records that the CBC believes to be excluded from the Act by section 68.1.

 

[24]           Counsel for the Commissioner argued that the purpose of the Act must be given a broad and liberal interpretation and that the Commissioner must have authority to determine whether the records fall under the exception. To do otherwise would run counter to the objective of the Act and would enable the CBC to circumvent the review mechanisms provided in the Act, even though it has been subject to the Act since 2007.

 

[25]           First, this Court is of the opinion that although parliamentary debates and discussions in committees may assist in interpreting a statute, in that they provide the context that was before Parliament, it is also recognized that they are not conclusive in themselves and the weight assigned to them will be limited (see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, [1998] SCJ No 2, at para 35; A.Y.S.A. Amateur Youth Soccer Association v Canada (Revenue Agency), 2007 SCC 42, [2007] 3 SCR 217 at para 12; Pierre-André Côté, Interprétation des lois, 4th ed., Montréal, Thémis, 2009, at pp 505-506). Following a review of the discussions that took place in committees, in the circumstances, while the historical context is relevant, it is not conclusive in itself. Second, although the wording of section 68.1 is not, shall we say, a model of clarity, the interpretation proposed by the CBC runs contrary to the purpose of the Act, which calls for it to be interpreted liberally (section 2). This Court therefore cannot agree with the interpretation of section 68.1 advanced by the CBC, for the reasons that follow.

 

[26]           Section 68.1 provides that “[t]his Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities”. As noted earlier, the CBC relies on the words “[t]his Act does not apply” in arguing that the Commissioner cannot rely on section 36 to order the CBC to disclose records to her. However, it is important to note that section 68.1 also states “other than information that relates to its general administration”. Information that relates to the general administration of a government institution includes “information that relates to expenses paid by the institution for travel, including lodging and hospitality” (section 3.1 of the Act).

 

[27]           Section 68.1, as worded, contains a double negative, that is, an exception to the exclusion. That exception to the exclusion, which refers to information that relates to the general administration of the CBC, may shed light with respect to the authority of the Commissioner. How can the Commissioner determine whether information relates to the general administration of the CBC, and thus falls under the exception set out in section 68.1, if she does not have authority to review all the records in question, including records relating to the journalistic, creative or programming activities of the CBC?

 

[28]           The Court notes the CBC’s argument that when Parliament created parallel schemes for exceptions (sections 13 to 26 of the Act) and exclusions (sections 68 to 69.1 of the Act), it surely did not intend that the two schemes be subject to the same rules.

 

[29]           However, the Court must observe that the wording of sections 68.1 and 68.2, which were both part of the amendment to the Act, contains an exception to the exclusion. Accordingly, the Court is of the opinion that while section 68.1 is included under the “exclusions” heading in the Act, the wording of that section cannot exempt it from independent review by the Commissioner. When we read section 68.1, we see that the Commissioner must have authority to determine, objectively and independently, whether the records fall under the exception and whether or not they may be properly excluded (see Canada (Attorney General) v Canada (Information Commissioner), 2001 FCA 25, [2001] FCJ No 282, at para 21). The consequence, otherwise, would be to exempt the CBC from the Act, and this would be contrary not only to the object of the Act (section 2) but also to its spirit, since the CBC has been subject to the Act since 2007.

 

[30]           The CBC contends that it is in the best position to conduct this exercise, since it has expertise in this area. Also, since the Act states clearly that it “does not apply”, the Commissioner has no authority and no power to investigate in this case. In other words, by this reasoning, the CBC has full authority to determine whether records in respect of which an access request is made fall under the exception set out in section 68.1. The Court does not share that interpretation.

 

[31]           The position taken by the CBC confers the Crown corporation judge in its own case in respect of access requests it receives. On that point, the evidence in the record is that the CBC has not produced any written directives that would ensure uniformity in the process of handling access requests [Applicant’s Record, Tab B, examination of Pierre Nollet, p 22, para 54].

 

[32]           In particular, that approach constructs a parallel scheme alongside the Act. The Court refers to Davidson v Canada (Solicitor General), [1989] 2 FC 341, [1989] FCJ No 105, at para 14, and is of the opinion that not only such an interpretation denies the Commissioner authority, but that it also denies one level of review in respect of a complaint to the person who has requested access:

[14] It is no doubt true, as the appellant argued, that a Federal Court trial judge, on a review of a refusal of access by an institution head which, as here, is upheld by the Commissioner, has adequate powers of review over the decision of the institution head, though it must be said that a judge sitting in Court lacks the investigative staff and flexibility of the Commissioner. More important, if new grounds of exemption were allowed to be introduced before the judge after the completion of the Commissioner's investigation into wholly other grounds, as is the issue in the case at bar, the complainant would be denied entirely the benefit of the Commissioner's procedures. He would thus be cut down from two levels of protection to one. No case could better illustrate than the present one the advantages of a two-stage process, because it was only at the second stage that the fatal flaw in the initial ground was discovered.

 

 

 

[33]           Further, there is nothing in the Act or, a fortiori, in the debates held in committees from which it can be concluded that in enacting the amendment to the Act, Parliament intended to judicialize the access to information request process by denying the Commissioner authority and creating a two-stream process that would consequently create a direct application to the Federal Court for judicial review.

 

[34]           In addition, the CBC draws a parallel in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574, in which the Supreme Court of Canada held that the Privacy Commissioner could not obtain access to information covered by solicitor-client privilege, even if the purpose of access was to ensure that the claim of privilege was justified. At the hearing before this Court, counsel for the CBC asserted an analogy between solicitor-client privilege and journalistic sources. In the case before us, the Court does not accept the argument made by the CBC, since Blood Tribe did not involve an exclusion. In addition, the principles stated in Blood Tribe relate to cases of information protected by the Personal Information Protection and Electronic Documents Act, SC 2000, c 5, the corollary of which is the opposite of the Access to Information Act.

 

[35]           With respect to the role of the Information Commissioner, sections 36 and 37 of the Act list the Commissioner’s powers. If we read those sections, it is clear that she has neither decision-making nor coercive power. As the Commissioner pointed out, the result of her investigation gives her the power only to make recommendations to government institutions, and the decision as to whether or not to implement those recommendations is up to the institutions. It is also clear from subsection 35(1) of the Act that the Commissioner’s investigations are private and confidential. It is also important to note that there is therefore no disclosure at that stage (see Rubin, para 9). As well, under subsection 36(5) of the Act, government institutions that produce documents may require that the Commissioner return them within 10 days. In other words, the Act was drafted with clearly defined parameters.

 

[36]           The Court finds it difficult to see what harm might be caused to the CBC in the performance of its mission if the Commissioner obtained copies of records in order to ascertain whether they relate to the general administration of the CBC under section 68.1 (see Respondent’s Record, Tab B: examination of Pierre Nollet, at pp 94-95). We must keep in mind that the Commissioner is a neutral entity, investigations are private and confidential, and the review must be objective. Disclosing records to the Commissioner does not amount to revealing them. A distinction must be made between sharing information and records with the Commissioner, in response to a complaint in respect of a refusal of access, and revealing that information publicly, in the event that the access request is granted. If there is disagreement between the CBC and the Commissioner once she has reached her conclusions, the CBC may take its disagreement before the Federal Court.

 

[37]           In light of the foregoing, and having regard to the scheme of the Act and the provisions of the Act when read as a whole, the Court finds that the Commissioner has authority under section 68.1 to order the CBC to disclose records, including records that, in the opinion of the CBC, relate to its journalistic, creative or programming activities, in order to determine whether those records fall under the exception and consequently whether they are subject to the exclusion.

[38]           For all these reasons, the Court dismisses this application for judicial review.

 

JUDGMENT

 

THE COURT ORDERS AND ADJUDGES that this application for judicial review be dismissed.

 

 

“Richard Boivin”

 

ANNEX

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1552-09

 

STYLE OF CAUSE:                          CANADIAN BROADCASTING CORPORATION v. INFORMATION COMMISSIONER OF CANADA

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      September 13, 2010

 

REASONS FOR JUDGMENT:       BOIVIN J.

 

DATED:                                             September 24, 2010

 

 

APPEARANCES:

 

André Lespérence Sylvie Gadoury	FOR THE APPLICANT
Douglas C. Mitchell Julien Lussier	FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Lauzon Bélanger inc. Montréal, Quebec	FOR THE APPLICANT
Irving Mitchell Kalichman LLP Montréal, Quebec	FOR THE RESPONDENT