Digests

Canada (Attorney General) v. Canada (Information Commissioner)

A-675-00

2001 FCA 26, Richard C.J., Noël and Evans JJ.A.

1/3/01

13 pp.

Appeal from Motions Judge's dismissal of Information Commissioner's motion to strike out respondents' application for judicial review, grant of motion for interim relief prohibiting Commissioner from enforcing subpoenas duces tecum until final determination of application for judicial review--Attorney General's application seeking declaration documents produced from 1999 M5 management meetings under control of Office of the Minister of National Defence not under control of Department of National Defence within meaning of that phrase in Access to Information Act, s. 2(1); declaration personal notes taken during meetings not records under control of Department of National Defence within meaning of that phrase in s. 2(1); certiorari to quash subpoenas duces tecum issued to note takers by Commissioner; prohibition to prohibit Commissioner from requiring note takers to give oral evidence, produce documents--Act only providing access with respect to records under control of government institution--While Department of National Defence listed in Schedule I of Act as government institution, Office of Minister of National Defence not--Appeal against refusal to strike out respondent's application dismissed--Act neither expressly nor by necessary implication ousting Court's jurisdiction under Federal Court Act, s. 18.1 to grant declaration on application for judicial review as to whether documents under control of government institution within meaning of Act, hence subject to right of access created by Act--Motions Judge correctly refused to strike declaratory relief sought by respondents, related remedy subpoenas be quashed--With respect to second branch of appeal, Motions Judge erred in finding irreparable harm established--(i) That irreparable harm may arguably arise not establishing irreparable harm--Respondents must prove, on balance of probabilities, irreparable harm would result from compliance with subpoenas issued on behalf of Commissioner--(ii) Access to Information Act, s. 63(1) authorizing disclosure of any information for stated purposes--While Motions Judge acknowledging other provisions in Act intended to protect information from being disclosed, not referring to any of them--S. 64(a) prohibiting Commissioner from disclosing specific information with respect to which exemption can be claimed under Act--Applies to conduct of investigation i.e. stage at which proceedings stood when stay granted--General authority to disclose information under s. 63(1) and prohibition enacted by s. 64(a) with respect to information coming under exemption cannot both operate at once--Rule for resolving conflict between general, particular enactments within same statute that particular enactment must be operative--S. 64(a) construed as excluding application of s. 63(1) in so far as information specified therein concerned--Incumbent on Motions Judge to consider effect of s. 64(a)--Information protected by s. 64(a) including personal information with respect to identifiable individuals (s. 19), government secrets (s. 13) and intelligence (s. 15) and confidential third party information of commercial, financial, technical or scientific nature (s. 20)--Contrary to scheme of Act for Commissioner to disclose information gathered in course of investigation--Respondents presented no evidence provisions of Act ineffective, susceptible to breaches--No merit to argument fact that information sought by subpoenas must be reviewed by someone within Office of Commissioner giving rise to irreparable harm--In absence of irreparable harm, balance of convenience dictating Commissioner's investigation be allowed to continue and subpoenas complied with, pending outcome of judicial review application--Result not making judicial review application moot--Motions Judge erred to extent holding arguable individual respondents having no relevant evidence to give in answer to subpoenas issued by Commissioner because swore information in possession not under control of government institution--Control under Act not defined term--Not for individual respondents to decide where control lies for purposes of Act--As subpoenas issued for bona fide purpose, not arguable can be set aside merely because individual respondents believe have no relevant evidence to give--Contrary to Motions Judge's view, contents of documents sought by Commissioner and circumstances in which came into being may be relevant to determining whether under control of Department of National Defence, government institution for purposes of Act--Order prohibiting Information Commissioner from requiring note takers to attend, give evidence, bring documents pursuant to subpoenas set aside--Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 13, 15, 19, 20, 63(1), 64(a)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).