Digests

Canada (Information Commissioner) v. Canada (Minister of Industry)

A-43-00

2001 FCA 253, Evans J.A.

29/8/01

9 pp.

Appeal from Trial Division decision ((2000), 184 F.T.R. 210) holding weightings assigned to various criteria to evaluate application for radiocommunication licence (for orbital slots for direct broadcast satellite services) not exempted from disclosure under Access to Information Act--Principal issue on appeal whether documents prepared by officials containing weightings ceased to be exempt under Act, s. 21(1)(a) as "advice and recommendations developed by or for . . . minister of Crown" when approved by Minister and formed basis of his decision to award licence--As reasons for decision in Canada (Information Commissioner) v. Canada (Minister of Industry), [2001] F.C.J. No. 1327 (to be published in Canada Federal Court Reports) (hereinafter Telezone) applicable to disposition of present appeal, not necessary to repeat them here--In both cases information requested concerned decisions by Minister to award radiocommunication licences--Decision-making process from which both cases arose appear to have been similar--For reasons given in Telezone, Court must determine whether Minister correct to conclude particular record fell within statutory exemption--Documents still in dispute herein not labelled "Minister's reasons for decision"; documents prepared by Minister's officials--When created, documents clearly "advice and recommendations" to Minister within Act, s. 21(1)(a)--For reasons given in Telezone, content of documents did not lose its character as advice with Minister's apparent adoption of slide deck as basis of his decision to award licence--Further, Act, s. 21(2)(a) only exempting documents otherwise falling within Act, s. 21(1)(a) if they contain statement of reasons for decision made in exercise of discretionary power when decision affecting rights of person--Decision to award licence herein did not affect anyone's legal rights--In absence of document containing Minister's decision and reasons, separate from that containing advice, fact that advice it contained was accepted not automatically changing its nature--No material distinction between facts herein and those in Telezone--Consequently, in version finally approved, weightings did not become decisions of Minister or thereby cease to be advice--Remains to be considered whether Minister's discretion to disclose unlawfully exercised--For reasons given in Telezone, reverse onus provisions in Act, s. 48 do not apply to review of exercise of discretion to withhold exempt document--When read as whole, directive on which exercise of discretion based not mandating approach based on erroneous view of scope of statutory discretion--No irrelevant considerations taken into account--Reasons for non-disclosure contained in record herein enable refusal to survive "somewhat probing examination" courts have been instructed to undertake when reviewing administrative action for unreasonableness simpliciter: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748--In final analysis, argument of Commissioner that, in exercising discretion to withhold, Minister had given less weight to right to access than should--However, judicial intervention in exercise of this administrative discretion on ground of unreasonableness not warranted, unless weight attached to public interest in non-disclosure quite disproportionate in view of nature of limitation on right to access that would thereby be involved--Minister's discretion herein not shown to be unreasonable--Access to Information Act, R.S.C., 1985, c. A-1, ss. 21(1),(2), 48.