[2014] 1 F.C.R. D-6
Access to Information
Judicial review brought pursuant to Access to Information Act, R.S.C., 1985, c. A-1, s. 44(1) seeking review of Transport Canada (TC) decision to disclose information requested under Act relating to applicant, applicant’s operations—Applicant, air transport business, providing airline services—TC conducting assessment of applicant’s safety management system as required; generating assessment report of findings made—TC informing applicant of reception of information request pursuant to Act concerning assessment report issued; applicant submitting representations as to why assessment report wholly exempt from disclosure under Act, s. 20—TC making first decision, advising applicant that assessment report partially exempt pursuant to Act, ss. 20(1)(b),(c); that report would be partially released to requestor—Applicant filing application for judicial review of TC’s first decision—Subsequently, TC re-examining requested information, concluding that further disclosure required—Applicant challenging TC’s second decision, arguing that federal department could not sit in appeal of own decision, could not, on own initiative, reverse itself, start disclosure process over—TC then withdrawing second decision, applicant discontinuing first judicial review application—However, TC later issuing third disclosure decision—Disputed information herein consisting of information severed from first decision but not severed from third decision—Applicant seeking judicial review of third decision—In meantime, requestor filing complaint to Information Commissioner of Canada (ICC) concerning delay in obtaining requested information; ICC finding complaint well founded—Whether Federal Court having jurisdiction under Act, s. 44 to determine whether decision of head of government institution made pursuant to Act, s. 28(1) void, of no effect ; whether TC’s third decision void, of no effect—Applicant submitting that third decision void, of no effect since Act not permitting TC to make multiple access decisions regarding single request for information ; respondent claiming TC entitled to change position—Federal Court having jurisdiction to assess whether decision made by head of government institution to disclose information pursuant to Act, s. 28(1)(b) void, of no effect—Act, s. 44 not limiting review by Federal Court to only determinations of whether s. 20 exemptions correctly applied; rather s. 44 permitting broader court review process—Any aspect of decision by head of government institution to disclose third party information under Act, including validity of decision itself, constituting “matter” that may be reviewed by Federal Court as part of s. 44 review—AstraZeneca Canada Inc. v. Health Canada, 2005 FC 1451 identifying two triggering events provided for in Act where Minister may change original decision or take position inconsistent with original decision—TC misinterpreting AstraZeneca; doing what case stating cannot be done by starting disclosure process anew on own initiative even though first decision already made—Third decision not resulting from either of two triggering events noted in AstraZeneca, i.e. Information Commissioner’s recommendation or s. 44 review—When third decision rendered, no s. 44 review process in place—Thus, third decision made without authority under Act, void of no effect; therefore, no decision for Federal Court to review—Consequently, TC not now afforded opportunity to change position within context of s. 44 hearing de novo—Third decision quashed; application allowed.
Porter Airlines Inc. v. Canada (Attorney General) (T-1768-11, 2013 FC 780, Strickland J., judgment dated July 1, 2013, 24 pp.)