Digests

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

T-1640-00, T-1641-00

McKeown J.

19/10/00

28 pp.

Motion to prohibit respondent from proceeding to enforce subpoenas duces tecum against individual applicants in both cases until applications for judicial review in respect of subpoenas determined; motion to strike out applications; motions to authorize Information Commissioner to be respondent--In T-1640-00, requesters sought Prime Minister's daily agendas from 1994 under Access to Information Act--Privy Council Office (PCO) advising no such records under its control--Information Commissioner issuing subpoena to applicant, Mr. Hartley, Executive Assistant to Prime Minister to produce agendas in any format--Agendas existing in PMO as archived in electronic format--Created, maintained under supervision of Mr. Hartley--Containing information as to full range of Prime Minister's activities, including cabinet meetings, caucus meetings, foreign and diplomatic contacts, Liberal Party activities, personal, family appointments--Agendas created on single computer located in Mr. Hartley's office--Only Mr. Hartley, his assistant can change electronic agenda program on computer--Certain staff in PMO having read-only access to agendas, but nobody outside PMO having such access--Agendas archived from time to time, but those files accessible only by Mr. Hartley, his assistant--Changes may or may not be recorded in agenda--Copies of agenda shared with senior officials employed within PMO--Copy of next day's agenda, which may be edited to some degree faxed to selected officials--Copy of agenda showing only locations to be visited by Prime Minister available to RCMP--Until last year, Mr. Hartley faxing copy of next day's agenda to Clerk of Privy Council for sole information of Clerk, assistant on understanding agenda to be discarded after used--Only archived copies of agendas found in PMO itself--Mr. Hartley member of Prime Minister's exempt staff, not public servant--Not employee, officer of PCO--No official of Privy Council can give Mr. Hartley directions and he has no authority to issue orders to any such official--No knowledge of records under control of PCO--Applicants arguing these two offices not "government institutions" pursuant to s. 2; documents not subject to Act and cannot be accessed by Information Commissioner--In T-1641-00 DND received access to information request for minutes of 1999 M5 management meetings (informal meetings among Minister of National Defence, senior ministerial (exempt) staff, Deputy Minister of National Defence, Chief of Defence Staff)--Upon investigation of complaints when no documents fitting description in request found, subpoenas issued to applicants (executive assistant to Minister of National Defence, Director of Operations to Minister of National Defence, Director of Communications to Minister of National Defence) ordering each to produce all records obtained during duties, whether in their possession or not, containing information related to M5 management meetings--Each applicant member of exempt staff, not public servant--Each kept notebook containing information relating to duties in support of Minister--Notebooks not part of Records Management System of Minister's office, DND--Motions for interim relief, adding Information Commissioner as respondent allowed--Application of test for granting interim relief set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311--(1) Whether ministers' offices "government institutions" serious issue to be tried--Neither office of Minister of National Defence nor PMO listed in Schedule I of Access to Information Act as government institutions--Ss. 21(1), (2)(b) appearing to differentiate between minister's office, government institution--Line of cases supporting this distinction as well as other cases supporting position Commissioner has duty to determine threshold issues of mixed fact, law, including whether records under control of government institution--Arguable declaratory relief sought could be granted since arguable neither PMO nor Office of Minister of National Defence government institutions within meaning of that phrase in Act, records sought by requesters not under control of PCO, DND--Related issue of whether individual applicants having relevant evidence to give with respect to subpoenas issued to them also serious issue to be tried--Records not in PCO or DND's possession--Applicants swearing no knowledge of any such documents--(2) Arguable Commissioner might be required to disclose certain information obtained by reason of s. 63 (circumstances where disclosure authorized)--While other sections requiring Commissioner to keep documents confidential, arguable may have power to release confidential documents to further investigation--Notwithstanding confidentiality provisions placed on Commissioner's office, irreparable harm to applicants if material in question released prior to determination of question on judicial review--(3) Balance of convenience favouring applicants, as nature of harm to them if interim relief granted far outweighing any inconvenience respondents may suffer from delay of continuation of Commissioner's investigation--As to motions to strike out applications for judicial review, generally improper to file motions to strike in judicial review proceedings--Proper manner to test merit of judicial review application to argue, appear at hearing of application itself--This proceeding not so clearly improper as to be bereft of any possibility of success--These types of documents held in control of PMO, ministers' offices kept confidential for 133 years, except for voluntary surrender--Arguable applicants having no alternative remedy under Act--Normally Commissioner would not be named as respondent--Under Federal Court Rules, 1998, r. 304(1)(b)(i) Commissioner would always be served with notices of application--R. 303(1)(a) contemplating applicant should name as respondents all persons directly affected by order sought except tribunal in respect of which application brought--R. 303(2) stating Attorney General should be named as respondent in situations where no other persons can be named as such--Leading to ridiculous result herein, since Attorney General of Canada would be both applicant, respondent--Under r. 303(3) where Court satisfied Attorney General unable, unwilling to act as respondent, Court may substitute another person, body including tribunal in respect of which application made, as respondent in place of Attorney General--In unusual circumstances of these applications appropriate for Commissioner to be respondent in both files--Leave granted to make Information Commissioner respondent in both applications--Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 21, 63 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1(2)), Schedule--Federal Court Rules, 1998, rr. 303, 304.