T-1928-96
The Attorney General of Canada and Bonnie Petzinger (Applicants)
v.
The Information Commissioner of Canada and Michel Drapeau (Respondents)
Indexed as: Canada (Attorney General)v. Canada (Information Commissioner) (T.D.)
Trial Division, MacKay J."Ottawa, October 24, 1996 and September 8, 1997.
Access to information — Act provisions precluding disclosure of information gathered in course of investigation applicable to preclude disclosure in judicial review proceedings initiated to review decision of Information Commissioner as result of investigation.
Practice — Discovery — Production of documents — Act provisions precluding disclosure of information gathered in course of investigation applicable to preclude disclosure in judicial review proceedings initiated to review decision of Information Commissioner as result of investigation — Therefore, Commissioner's objection under R. 1613(2) to production of documents sought under R. 1612, upheld.
Practice — Pleadings — Motion to strike — Within Court's inherent jurisdiction to strike motion, but discretion to do so should be exercised only where clear no basis for proceeding by originating motion — Motion to strike allowed: by Minister's decision not to implement Information Commissioner's recommendation, issue raised by application for judicial review became moot — Furthermore, where recommendation not clearly unreasonable in light of evidence and materials before Commissioner, and minimal standards of fairness applicable met, Court may not intervene — Discretion Commissioner's alone, not Court's — No ground upon which Court might intervene here established, even on prima facie basis, by application and supporting affidavits.
Practice — Parties — Standing — Information Commissioner properly excluded as respondent if matter were to proceed to hearing — Proper standing that of intervenor with full party status to make submissions on issues other than merits of his decision.
Practice — Costs — Special reasons to award costs on solicitor-client basis payable by applicants to individual in access to information case incurred after order of Motions Judge denying injunctive relief on basis that no serious issue — Should have been clear to applicants' counsel hopeless to pursue claim for costs, illicit purpose allegations against individual respondent.
Federal Court jurisdiction — Trial Division — Motion to strike originating notice of motion — Within Court's inherent jurisdiction to strike, but discretion exercised only where clear no basis for proceeding by originating motion.
The respondent, Drapeau, was an officer in the Canadian Armed Forces prior to his release in 1995. The grounds for release were disputed and that matter was the subject of other proceedings. Both before and after he left the Armed Forces, the respondent had frequently resorted to access to information proceedings, which were dealt with by the applicant, Petzinger, the Access to Information and Privacy Coordinator for the DND. In the course of the internal process leading to the respondent's release, Ms. Petzinger had given evidence, perceived by the respondent to be against his interests, upon which reliance was placed by the Department in its decision to release him. After his release, the respondent became dissatisfied with the treatment of his requests for information and filed a complaint with the Information Commissioner, alleging that Ms. Petzinger was in a position of conflict of interest in dealing with his requests for information.
After investigation, the Commissioner found that, although there was no actual conflict of interest, there was an appearance of one, and recommended that Ms. Petzinger have no further involvement in decision-making with respect to the administration of the respondent's requests under the Access to Information Act until all review proceedings relating to the termination of his employment with DND are concluded.
On August 26, 1996 the applicants herein filed motions for judicial review and a variety of orders of relief against the Information Commissioner and Drapeau, named as respondents. On the same day, they also sought interlocutory relief, on an urgent basis, in relation to the matters raised by their application for judicial review. And by letter dated August 28, the Deputy Minister of National Defence advised the Information Commissioner that DND did not accept his conclusion about conflict of interest and did not intend to follow his recommendation.
McKeown J. heard the two interlocutory motions on an urgent basis on August 30, 1996. The application for injunctive relief was dismissed.
On September 11, 1996, the applicants sought to file, ex parte, an amended originating notice of motion and three further affidavits in support of the application for judicial review. The Motions Judge directed that the applicants seek leave of the Court to file the amended originating notice of motion, and to file the additional affidavits. On September 27, the applicants filed a further motion for leave to file an additional affidavit. In both the original and the amended originating notice of motion, the applicants requested, pursuant to Rule 1612 of the Federal Court Rules, that the Commissioner forward a certified copy of certain materials. In response, the Commissioner filed a written objection, under Rule 1613. The applicants also questioned the Commissioner's standing as respondent. The standing of Ms. Petzinger as an applicant was raised by the Commissioner, and Drapeau submitted that he should not be a respondent. Finally, the Commissioner and Drapeau sought orders striking out the originating notice of motion and opposed the application for leave to file the amended originating notice of motion, and the motions to file additional affidavits.
Held, the Commissioner's objection to production of documents should be upheld; the originating notice of motion, struck; and the motion for leave to file the amended originating notice of motion and supplementary affidavits, dismissed. The order allowing Drapeau's application to strike out the applicants' originating notice of motion specified that costs were payable by the applicants to the respondent on a solicitor-client basis for proceedings after August 30, 1996.
(1) The Commissioner's objection to production of documents. Rules 1612 and 1613 of the Federal Court Rules provide that in proceedings for judicial review, a party may request in writing relevant material that is in the possession of the federal board, commission or tribunal against whose decision relief is sought, and, unless it objects in writing, it shall produce a certified copy of the material requested. In that event a judge may, after hearing the parties, order that a certified copy of the material requested be produced. However, Rules 1612 and 1613 do not extend to documents and records of the Commissioner which are precluded from disclosure by the Act. Although section 32 of the Act provides that the head of the institution concerned should be notified of the intention to carry out the investigation and of the substance of the complaint, the Act clearly gives the Commissioner, subject to relevant provisions of the Act, the authority to determine the process of investigation and the procedure to be followed in the performance of any duty or function. Furthermore, under subsection 63(1) of the Act, the decision of what information to disclose to parties against whom complaints are made, is a decision based on the Commissioner's opinion of what is necessary to carry out an investigation or to establish the basis for the findings and recommendations of a report under the Act. Therefore, absent a strong case that the disclosure already made does not reasonably meet those objectives, the Court may not intervene to direct the Commissioner that the discretion vested in him has not been properly exercised, and that he must disclose further information. The decision of the Court of Appeal in Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.), where it was held that the complainant was properly refused access to representations made to the Commissioner during an investigation, was conclusive of this issue: if that sort of information may not be compelled to be provided in review proceedings set out in the Act itself, because of provisions of the Act against disclosure, those provisions should similarly be applied to preclude disclosure in judicial review proceedings initiated to review the decision of the Commissioner as a result of an investigation, with a view to setting it aside.
(2) Amendment of, or striking out, the applicants' originating notice of motion. As indicated in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), it is within the jurisdiction of the Court to grant such relief, but discretion to do so would be exercised only where it is clear there is no basis for proceeding by originating motion. If the originating notice of motion were not struck, then leave to amend it should be granted. However, the originating notice of motion should be struck. McKeown J.'s finding, in his decision of August 30, 1996 in earlier proceedings for injunctive and other relief in this case, that no serious issue was raised concerned the Commissioner's jurisdiction to report with his recommendations; it was not a comment on the seriousness of issues raised by the originating notice of motion as a whole. That finding, then, was not a basis for striking the original or amended originating notice of motion. However, by the Minister's decision not to implement the recommendation, the issue raised by this application for judicial review became moot. Because the relief now sought was moot in regard to any practical effect, pursuit of that relief by judicial review was futile in any practical sense. That supported a conclusion that the proceedings should now terminate by striking the originating notice of motion. Furthermore, whereas the applicants sought to challenge the appropriateness of the Commissioner's recommendation, the merits of the recommendation are not a matter for the Court. Finally, since the application and supporting affidavits did not establish a basis for finding the Commissioner acted unlawfully, that his recommendation was clearly unreasonable on the basis of material before him, or that he failed to meet the minimal standard of fairness required in the exercise of his administrative discretion, the Court could not intervene.
(3) Application to file supplementary affidavits. If the originating notice of motion were not struck, the motion to file supplementary affidavits would be allowed, without any comment on the weight any of the evidence so added would have in these proceedings.
(4) Standing of the parties. The Court of Appeal decision in Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447, clearly determined that the federal board, commission or tribunal whose decision is subject to review is not a proper party respondent but may be an intervenor in these proceedings, not to argue the merits or the decision made, but to deal with questions of jurisdiction and process. Therefore, if this matter were to proceed to a hearing, the Commissioner should be excluded as a respondent but given standing as intervenor with full party status to make submissions on issues other than the merits of his decision. And since the respondent, Drapeau, is "an interested person who is adverse in interest to the applicant[s]" in the proceedings before the Information Commissioner, he would be properly named as a respondent in the notice of motion. Petzinger and the Minister of National Defence were properly applicants in these proceedings.
(5) Costs. Rule 1618 provides that in respect of an application for judicial review no costs shall be payable unless the Court, for special reasons, so orders. Here all parties asked for costs. Costs on a solicitor-client basis are payable by the applicants to respondent Drapeau in regard to all proceedings, after August 30, 1996, including his own motion to strike the originating notice of motion. After the decision of McKeown J. on August 30, 1996, it was clear that there was no possibility, in proceedings for judicial review, of a declaration or other relief directed to Drapeau, a private citizen, yet the applicants did not withdraw all claims against him. Also, continuing the claim for costs against the respondent, Drapeau, left him no alternative to continuing in an active role, with counsel, in the proceedings to date. Finally, there was no basis to applicants' submissions that Drapeau's purposes or intent in making a complaint to the Commissioner were illicit or improper. These circumstances constituted special reasons warranting an order for costs pursuant to Rule 1618.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 30 (as am. by S.C. 1992, c. 21, s. 4), 32, 34, 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, Item 1), 37, 41, 62, 63 (as am. idem), 65 (as am. idem).
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Federal Court Rules, C.R.C., c. 663, RR. 303(1), 1602(3) (as enacted by SOR/92-43, s. 19), 1603(1) (as enacted idem), 1612 (as enacted idem), 1613 (as enacted idem), 1618 (as enacted idem).
Privacy Act, R.S.C., 1985, c. P-21.
cases judicially considered
applied:
Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707; (1994), 113 D.L.R. (4th) 275; 54 C.P.R. (3d) 511; 167 N.R. 43 (C.A.); affd [1996] 1 S.C.R. 6; (1996), 1 D.L.R. (4th) 608; 36 Admin. L.R. (2d) 131; 66 C.P.R. (3d) 32; 191 N.R. 394; Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102; (1993), 19 Admin. L.R. (2d) 91; 11 C.E.L.R. (N.S.) 1; 64 F.T.R. 127 (T.D.); American Cyanamid Co. v. Canada (Minister of National Health and Welfare) (1994), 55 C.P.R. (3d) 461; 81 F.T.R. 174 (F.C.T.D.); David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588; (1994), 58 C.P.R. (3d) 209; 176 N.R. 48 (C.A.); Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447; (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.).
distinguished:
Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455; (1995), 180 N.R. 152 (C.A.); Majeed v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 75 (F.C.T.D.).
considered:
Canada (Attorney General) et al. v. Information Commissioner (Can.) et al. (1996), 119 F.T.R. 77 (F.C.T.D.); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; (1992), 89 D.L.R. (4th) 218; 3 Admin. L.R. (2d) 242; 133 N.R. 345.
APPLICATIONS, by applicants, for leave to file an amended originating notice of motion and to file additional affidavits, and requesting that the Commissioner produce certain materials; by respondent Commissioner, objecting to the production of certain materials, and by both respondents for an order striking out the originating notice of motion. Applications by applicants dismissed; application to strike allowed, with costs on a solicitor-client basis to respondent Drapeau only; Commissioner's objection to production of documents upheld.
counsel:
Dogan D. Akman and Commander Stanley J. Blythe for applicants.
Daniel Brunet and Nathalie Daigle for respondent Information Commissioner of Canada.
Martha A. Healey for respondent Michel Drapeau.
solicitors:
Deputy Attorney General of Canada for applicants.
Office of Information Commissioner of Canada for respondent Information Commissioner of Canada.
Osler, Hoskin & Harcourt, Ottawa, for respondent Michel Drapeau.
The following are the reasons for order rendered in English by
MacKay J.: These reasons explain my disposition of a written objection to production of documents by the Information Commissioner, and also of four motions brought by the parties at an interlocutory stage in proceedings initiated by the applicants for judicial review.
To understand the context in which the motions are brought, it is necessary to sketch the background. Mr. Michel Drapeau, named as one of the respondents in this matter, is a former officer in the Canadian Armed Forces where he served until he was released in 1995. The grounds for his release were disputed and that matter was the subject of other proceedings when this application was dealt with. It is said he had frequent resort to access to information proceedings both before and after he left the Armed Forces. His requests for access were dealt with by the applicant, Ms. Bonnie Petzinger, the Access to Information and Privacy Coordinator for the Department of National Defence (DND). In the course of internal departmental proceedings leading to Mr. Drapeau's release from the Armed Forces, Ms. Petzinger had given evidence, perceived by Mr. Drapeau to be against his interests, upon which reliance was placed by the Department in its decision that his service be terminated.
After his release from the service Mr. Drapeau ultimately became dissatisfied with the responses or lack of them by DND to his requests for information. He filed a complaint with the Information Commissioner pursuant to section 30 of the Access to Information Act, R.S.C., 1985, c. A-1 as amended [S.C. 1992, c. 21, s. 4] (the Act). In that complaint, it was alleged that Ms. Petzinger was in a position of conflict of interest in dealing with his requests for information which led to a lack of objectivity on her part in dealing with his requests and resulted in a poorer level of service for his requests.
An investigation was initiated by the Information Commissioner in relation to Mr. Drapeau's complaint in January 1996. In March Ms. Petzinger was interviewed by the Commissioner's staff in the presence of counsel. Both Ms. Petzinger and DND were provided opportunities to make submissions to the Commissioner, including submissions concerning the allegation of possible conflict of interest or appearance of bias on the part of Ms. Petzinger in dealing with Mr. Drapeau's requests. The Minister of National Defence submitted written representations to the Commissioner on July 19, 1996, responding to correspondence in June which had outlined the Commissioner's preliminary statement of his findings.
On August 16, 1996, the Information Commissioner reported on his investigation of the complaint. That report, by letter dated August 16, 1996 to the Deputy Minister, DND, pursuant to section 37 of the Act, included the findings of the Commissioner in these terms:
. . . my findings are
1. the allegation of a lack of professional objectivity by Mrs. Petzinger in her dealings with Mr. Drapeau is not substantiated;
2. the allegation that Mrs. Petzinger subjected Mr. Drapeau to poor service in administering his access requests is not substantiated;
3. the allegation that Mrs. Petzinger is in a conflict of interest situation vis-à-vis Mr. Drapeau is substantiated in part. I find that, while there was no actual conflict of interest, there is an appearance of a conflict of interest. This arises because, in my view, past actions and positions taken by Mrs. Petzinger raise a reasonable apprehension of bias against Mr. Drapeau.
4. the allegations concerning privacy invasion do not fall within my mandate to investigate and I make no findings thereon.
Consequently, it is my conclusion that this complaint is, in part, well-founded. It is my recommendation that, for a period of time, Mrs. Petzinger have no further involvement in decision-making with respect to the administration of requests made by Mr. Drapeau or by NOVATIP Consulting under the ATIA [i.e. Access to Information Act]. It seems to me it would be appropriate for someone else to handle Mr. Drapeau's requests until all judicial or quasi-judicial proceedings, related to the termination of Mr. Drapeau's employment with ND, are concluded.
On August 26, 1996 the applicants, the Attorney General of Canada and Ms. Petzinger filed and served an originating notice of motion seeking judicial review and a variety of orders of relief against the Information Commissioner and Mr. Drapeau, named as respondents. I note that by letter of August 28, 1996 the Deputy Minister of National Defence, on behalf of the Minister, wrote to the Information Commissioner to advise that DND did not accept his conclusion about conflict of interest and did not intend to follow his recommendation.
Also on August 26, 1996 the applicants together, by motions separate from their originating notice of motion, but referred to therein, sought interlocutory relief on an urgent basis in relation to the matters raised by their application for judicial review. First, they sought a confidentiality order that would permit filing of certain affidavits on a confidential basis. Second, they sought an order of prohibition or an injunction enjoining the Commissioner from taking any further steps or acting upon his investigation and his report, with respect to the complaint of Mr. Drapeau, and enjoining communication of the report to Mr. Drapeau, or if it were already in his possession enjoining him from using or communicating its contents without leave of the Court. They also sought an order to stay proceedings initiated by the Commissioner pending the outcome of the application for judicial review. I note the principal relief sought by the originating motion filed on August 26 included a declaration that Mr. Drapeau's complaint to the Information Commissioner with respect to Ms. Petzinger "is frivolous and vexatious and was filed for improper and illicit purposes", and the applicants sought an order in the nature of certiorari to set aside or quash the Commissioner's investigation report of August 16, 1996.
The two interlocutory motions came on on an urgent basis before my colleague Mr. Justice McKeown and were dealt with on August 30, 1996 [(1996), 119 F.T.R. 77 (F.C.T.D.)]. The application for filing certain affidavits on a confidential basis was allowed in part, and the application for injunctive relief was dismissed. Thereafter on September 3, the Commissioner communicated to Mr. Drapeau the results of his investigation, including the recommendation made to the Minister, and the latter's rejection of the recommendation.
On September 11, 1996 the applicants sought to file, in an ex parte manner, an amended originating notice of motion and three further affidavits in support of the application for judicial review. That led to written directions of September 19 by my colleague Mr. Justice Pinard directing that the applicants seek leave of the Court to file the amended originating notice of motion, and to file the additional affidavits. On that same day, September 19, the applicants filed a motion for leave to file the documents in question. On September 27, the applicants filed a further motion for leave to file an additional affidavit.
In both the original originating notice of motion and the amended version for which leave to file is now sought, the applicants request, pursuant to Rule 1612 of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)], that the Commissioner forward a certified copy of certain materials. In response, the Commissioner filed a written objection, under Rule 1613 [as enacted idem], an objection dated September 27, 1996, which was argued in this proceeding and is now disposed of by order.
Also raised by the applicants' amended originating notice of motion is an issue concerning the standing in these proceedings of the Commissioner. The applicants question the Commissioner's standing as a respondent, though he was so named by them in the original originating notice of motion filed August 26, 1996. They do not question standing of the Commissioner as an intervenor. For purposes of the hearing in relation to the motions before the Court and here dealt with, in view of the Commissioner's involvement as a respondent in preliminary proceedings before Mr. Justice McKeown, and again before Madam Justice McGillis who set a schedule for preparation for hearing of these motions, I directed the Commissioner should have the capacity to participate in the manner of a respondent in view of the preparations made for the hearing before the issue of standing was raised. The standing of Ms. Petzinger as an applicant is also raised, by the Commissioner, and Mr. Drapeau submits that he should not be a respondent, drawn in willy-nilly to a dispute between two public officers, the Attorney General of Canada and the Information Commissioner. These reasons deal with these various issues of standing.
In addition to the Commissioner's objection and the motion for leave to file an amended originating notice of motion, two other motions, separately filed on September 27, 1996 by the Commissioner and by Mr. Drapeau, were also argued at the hearing. They seek orders striking out the originating notice of motion filed on behalf of the Attorney General and of Ms. Petzinger. Consistent with that position both the Commissioner and Mr. Drapeau opposed the application for leave to file the amended originating notice of motion, and the motions to file additional affidavits which the applicants sought leave to do.
The several matters argued in this proceeding are dealt with in these reasons under the following headings:
(i) The Commissioner's objection to production of documents;
(ii) The amendment of or striking out the originating notice of motion;
(iii) Applications to file supplementary affidavits;
(iv) The standing of the several parties; and
(v) Costs.
The Commissioner's objection to production of documents
As noted, in the originating notice of motion, both the original and amended versions, applicants request production of documents. That is expressed as follows:
The applicants, pursuant to Rule 1612 of the Federal Court Rules, request that the Commissioner send, both to the counsel for the applicants and to the Registry of the Court, a certified copy of the following materials which are in its possession.
The duly certified full Record of Proceedings before the Commissioner and within his office with respect to the Report, Findings and Recommendations under Review and without limiting the generality of the foregoing:
1. the tape recordings of all the proceedings and interviews;
2. the transcriptions of said tapes;
3. all notes, memoranda, written communication or oral communication reduced to writing with the co-respondent Michel Drapeau and other persons outside the Office of the Commissioner;
4. all notes, memorandum, written communication and oral communication reduced in writing between the Commissioner and his staff as well as among his staff in relation to the initiation and conduct of the investigation, the preparation of the preliminary and final reports other than communication which is covered by solicitor-client privilege . . . .
It is the Commissioner's position that the applicants have been provided with all the documents they are entitled to under the Act. They have all the correspondence between the Commissioner and DND concerning the complaint, including a copy of a summary of the Drapeau complaint; the notification of January 11, 1996 to the Minister of National Defence of the Commissioner's intention to investigate the complaint and of the substance of the complaint; the request by the Commissioner on June 7, 1996 to the Minister to make representations in relation to the Commissioner's preliminary statement of the results of his investigation; the report by the Commissioner to the Minister dated August 16, 1996 following consideration of representations made on behalf of the Minister on July 19, 1996; the acknowledgment on behalf of the Minister, dated August 28, 1996 which advised that the recommendation of the Commissioner would not be followed; and a copy of the Commissioner's report to the claimant dated September 3, 1996.
All other materials relating to the investigation and the report of the Commissioner, including any other materials within the descriptions of the applicants' four categories set out in the originating notice of motion, are said by the Commissioner to be privileged and are not to be disclosed, in accord with provisions of the Act. It is submitted that Rules 1612 and 1613 of the Federal Court Rules do not extend to documents and records of the Commissioner which are precluded from disclosure by the Act.
Those Rules provide that in proceedings for judicial review, a party may request in writing relevant material that is in the possession of the federal board, commission or tribunal against whose decision relief is sought, and the board, commission or tribunal shall produce a certified copy of the material requested unless it objects to do so in writing. In that event a judge may, after hearing the parties, order that a certified copy of the material requested be produced.
The sections of the Act upon which the Commissioner relies in declining to produce the documents here requested, in so far as they are relevant, include the following [sections 34, 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, Item 1), 62, 63 (as am. idem), 65 (as am. idem)]:
34. Subject to this Act, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act.
35. (1) Every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private.
(2) In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to
(a) the person who made the complaint,
(b) the head of the government institution concerned, and
. . .
but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.
36. (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power
(a) to summon and enforce the appearance of persons . . .
(b) to administer oaths;
(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Information Commissioner sees fit, whether or not the evidence or information is or would be inadmissible in a court of law;
. . .
(3) Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, in a prosecution for an offence under this Act, or in a review before the Court under this Act or an appeal therefrom, evidence given by a person in proceedings under this Act and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceedings.
. . .
62. Subject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.
63. (1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information
(a) that, in the opinion of the Commissioner, is necessary to
(i) carry out an investigation under this Act, or
(ii) establish the grounds for findings and recommendations contained in any report under this Act; or
(b) in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom.
(2) The Information Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution if in the opinion of the Commissioner there is evidence thereof.
. . .
65. The Information Commissioner or any person acting on behalf or under the direction of the Commissioner is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom.
For the applicants some eleven grounds are urged as bases for an order under subsection 1613(4) of the Rules that the materials they requested be produced. A number of those grounds relate to the key issue raised by the Commissioner, that is, to resolve any conflict between the Court's Rules and the terms of the Act, about disclosure. It is urged on behalf of the Attorney General that none of the sections of the Act relied upon by the Commissioner authorize withholding of the information requested, for Parliament could not have intended the Act to be construed to preclude disclosure of any information the Commissioner determines to withhold where it is alleged, as here, that the complaint is laid for malicious purposes and the investigation is not in accord with the Commissioner's mandate under the Act, or, as it was described, that the matter raised by the application for judicial review is "tainted by illegality".
The applicants' allegations of illegality relate to concerns arising from their perceptions of how the Commissioner should conduct investigations. Here the complaint of the intervenor, Mr. Drapeau, was initiated in late November 1995. The Minister of National Defence was notified under section 32 of the Act on January 11, 1996 of the intention of the Commissioner to investigate the complaint and of the substance of the complaint, a summary of which was sent to the Minister at that time. Yet the applicants contend that the Commissioner did not comply with section 32 which provides:
32. Before commencing an investigation of a complaint . . . , the Information Commissioner shall notify the head of the government institution concerned of the intention to carry out the investigation and . . . of the substance of the complaint.
It is urged that the Commissioner did not assess whether the complaint was a legitimate one before commencing the investigation, that somehow the time lapse before the Minister was notified of the matter in January 1996 suggests the investigation had begun earlier, and further, that the failure of the Commissioner to provide particulars of the complaint in response to requests, especially in regard to any alleged default of the applicant Ms. Petzinger, constituted failure on the part of the Commissioner to give notice of the "substance of the complaint" as required by section 32. In particular, it is urged that the process led Ms. Petzinger and others concerned at the Department of National Defence to assume that an interview of her was merely a formality to wind up the investigation, but thereafter the Commissioner's report of August 16 suggested that her continuing involvement with requests of Mr. Drapeau raised an apprehension of bias, and therefore someone else should have that responsibility pending the outcome of proceedings initiated by Mr. Drapeau to question termination of his service with the Armed Forces.
The applicants' argument assumes a particular process of investigation that is not warranted from the terms of the Act. The responsibility for investigating complaints is that of the Commissioner under section 30 and the process of investigation, in my opinion, is clearly a matter for determination by the Commissioner, subject to the Act, under section 34 which provides that he may determine the procedure to be followed in the performance of any duty or function of the Commissioner.
Section 34 is also a response, together with subsection 63(1), to the applicants' argument that the Commissioner is bound to provide at least minimal information about documents in the Commissioner's records, comparable to the minimum applicable where documents are claimed as subject to privilege in an affidavit of documents, i.e. the date, the sender or creator and the recipient of each document, the topic and perhaps material statements from each. Without that information, it is urged the Commissioner's claim to object to the release of documents cannot be assessed. But this assumes a right in the applicants akin to discovery of documents in possession of the Commissioner, a right that does not exist. Under subsection 63(1) of the Act the decision of what information to disclose to parties against whom complaints are made, is a decision based on the Commissioner's opinion of what is necessary to carry out an investigation or to establish the basis for the findings and recommendations of a report under the Act. In my view, absent a strong case that the disclosure already made does not reasonably meet those objectives, the Court may not intervene to direct the Commissioner that the discretion vested in him has not been properly exercised, and that he must disclose further information.
This introduces the principal issue underlying the Commissioner's objection to providing the information requested by the applicants. That is, in the Commissioner's view, he has no authority or discretion to provide the information requested by the applicants. Information gathered in the course of an investigation, apart from that determined to be released under subsection 63(1), is precluded from release except for narrowly defined exceptions under the Act, principally those exceptions set out in section 63. The limitation on disclosure of information obtained in an investigation is reinforced by other provisions: subsection 35(1) which directs that every investigation shall be conducted in private; subsection 35(2) which provides for reasonable opportunities to make representations in the course of an investigation for the claimant, the head of the government institution concerned and any third party that has provided the information or might be affected by its release, but specifically provides that no one is entitled to be present during, or to have access to or to comment on, representations made by any other person; and section 62 which requires that the Commissioner and every person acting under his direction "shall not disclose any information that comes to their knowledge in the performance of their duties and functions under th[e] Act". Further, section 65 provides that the Commissioner, and anyone acting on his behalf, is not a compellable witness in relation to any matter arising in the course of an investigation.
It is urged for the applicants that the Act should be interpreted in light of the absence of clear parliamentary expression of its intent, by the Act, to preclude application of basic procedural requirements and principles of the common law that would ensure disclosure of information on which adverse findings or conclusions about individuals are based.
The applicants urge that the principle of Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.) should be applied where the accuracy and completeness of the investigator's report is in issue, as it is said to be here. In my opinion, the decision in Pathak, which deals with an investigator's report under the Canadian Human Rights Act [R.S.C., 1985, c. H-6], has no application. That Act does not contain provisions similar to those in the Access to Information Act prohibiting release of information obtained in an investigation. Moreover, in that case, the Court of Appeal, denying production of documents under Rule 1612 where those in issue were not before the Commission for purposes of its decision, makes clear that documents requested under Rule 1612 must specify the material requested and the material must be relevant. The rule is to ensure that the record that was before the decision-maker whose decision is questioned on judicial review is before the Court. It is not intended to facilitate discovery of all documents that may be in the decision-maker's possession, or all documents that may have been gathered in an investigation. Yet that appears to be the nature of the applicants' requests for documents in this case.
On this issue of the interplay of Rule 1612 and the provisions of the Act, it seems to me helpful to consider the decision of the Court of Appeal by Mr. Justice Stone in Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.), a decision endorsed and upheld by the Supreme Court of Canada, [1996] 1 S.C.R. 6. There, the Court was concerned with an appeal from the decision of the judge reviewing, under section 41 of the Act, a decision by the Information Commissioner upholding a refusal to release information requested under the Act. In that case the complainant sought correspondence or records of communications, between the Office of the Privy Council and the Information Commissioner, arising in the course of an investigation, including internal memos, briefing notes or correspondence. Mr. Justice Stone, writing for the Court of Appeal, upheld the refusal to release the information there sought. After reviewing the purpose of the Act and its provisions against disclosure, he concluded that the complainant was properly refused access to representations made to the Commissioner during an investigation.
In my opinion, the decision in Rubin is conclusive of the issue here raised. If that sort of information may not be compelled to be provided in review proceedings set out by the Act itself, because of the provisions of the Act against disclosure, as Rubin teaches, those provisions should be similarly applied to preclude disclosure in judicial review proceedings initiated to review the decision of the Commissioner as a result of an investigation, with a view to setting it aside.
The applicants referred to comments of my colleague Madam Justice Reed in Majeed v. Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 75 (F.C.T.D.), where reference was made to personal information precluded from release under the Privacy Act [R.S.C., 1985, c. P-21], noting that the statute did not render immune from production any information properly identified under Rule 1612, and relevant to an applicant's claim of bias, for purposes of litigation. Those comments were made in circumstances where the Act now before this Court was not in question. The circumstances in Majeed are not comparable to those in this case. Moreover, whatever else may be alleged by the applicants about the Commissioner's decision here in question, they do not base their claims for relief on allegations of bias on the part of the Commissioner.
For the Information Commissioner, the written objection filed in response to the applicants' request for disclosure of information obtained in the course of the Commissioner's investigation, also urges that, in addition to the statutory provisions precluding disclosure, information is protected from disclosure under common law privilege with respect to deliberative secrecy applicable to an office like that of the Information Commissioner or indeed under solicitor-client privilege. Neither basis was argued extensively by the Commissioner when this matter was heard and I make no finding with regard to those submissions.
I am persuaded, however, that the objection of the Commissioner, made under subsection 1613(2) of the Rules, to production of documents requested by the applicants pursuant to Rule 1612, is to be upheld. Thus, after considering submissions of the applicants and those on behalf of the Commissioner, I decline to make any order under subsection 1613(4) of the Rules for production of any of the material requested by the applicants.
Amendment of, or striking out, the applicants' originating notice of motion
The separate motions, of the applicants in accord with the order of Mr. Justice Pinard, for leave to file an amended originating notice of motion, and the motions of the Information Commissioner and of Mr. Drapeau, that the applicants' originating notice of motion be struck out, are interrelated and are here considered together.
If the amendments now proposed for the originating notice of motion are such that in essence that motion is still subject to the concerns raised by the motions to strike, then if the latter motions are allowed that would dispose of the original originating notice of motion filed on August 26, 1996, and it would effectively dispose of the motion for leave to amend, and also of the applicants' motions for leave to file additional affidavits in support of the originating notice. Nevertheless, I deal with the motions independently in case on appeal my determination of the ultimate result is found in error. Thus, I first examine the proposed amended originating notice of motion to assess the amendments now proposed, and then the question of leave for it to be filed, subject to my determination of the applications to strike, which I then consider.
The amendments proposed to the originating notice of motion include the following:
1. Deletion of the Information Commissioner as a respondent, leaving only Michel Drapeau as the respondent to the application, a change which raises the issue of standing of the Commissioner in these proceedings;
2. Change or omission in the amended version of some forms of relief originally requested, in particular,
i) a change in the declaration, originally sought to declare the complaint of Mr. Drapeau to be frivolous, vexatious and "filed for improper and illicit purposes", now changed to seek a declaration that the Commissioner failed to investigate the complaint properly and to determine whether the complaint fits the earlier description as frivolous, etc.; (That change, in my view, would not alter the essence of the relief sought, though it does delete the request for a declaration dealing directly with Mr. Drapeau's complaint. I note the Information Commissioner suggests this change arose from comments of McKeown J. in earlier interlocutory proceedings, that in his view the Court had no jurisdiction to issue an order directed in effect to an individual, Mr. Drapeau, rather than to a federal board, commission or tribunal.)
ii) deletion in the amended version of those forms of relief refused earlier by order of Mr. Justice McKeown including, prohibition or injunctive relief enjoining the Commissioner from taking further steps, and from communicating his report to Mr. Drapeau, and, if the latter were already in possession of the Commissioner's report, precluding Mr. Drapeau from communicating its contents without leave of the Court. In addition, McKeown J. declined to order a stay of further proceedings by the Commissioner pending determination of this application for judicial review, which the applicants originally sought. (Those forms of relief having been refused, the deletions in the amended motion are said to be good housekeeping.)
3. Finally, the applicants vary the style of cause in the amended version of the motion, deleting reference to the interlocutory orders earlier refused by McKeown J.
The amended originating notice of motion preserves requests as set out in the original similar motion for
(i) declaratory relief, as noted above, modified but in essence for the same general purpose, at least in condemnation of the complaint of Mr. Drapeau;
(ii) certiorari to set aside the Commissioner's report of August 16, 1996;
(iii) prohibition enjoining the Commissioner from acting upon his recommendation and proceeding further with his report, an order comparable in part to one of those sought in the original application;
(iv) an order for costs, on a solicitor-client basis, against both the Commissioner and Mr. Drapeau.
In my view the amended originating notice of motion seeks review of the same decision, that is, the report of August 16, 1996 by the Commissioner, with the same general purpose, to have it set aside. The changes in the amended version for the most part concern deletion of forms of relief earlier refused by McKeown J. For the Commissioner it is urged that the change in the declaratory relief sought by the amended version, to review the process of the investigation by the Commissioner, raises a new issue that ought to be the subject of a different application, but in my view, such a review was at least implicit in the original notice of motion.
In my opinion, the amended version is within the bounds of the objections raised by the motions of the Commissioner and of Mr. Drapeau that the originating motion herein be struck out. Before turning to those motions I deal first with the applicants' motion for leave to file the amended originating motion, keeping in mind that resolution of the leave question may ultimately here depend upon determination of the motions to strike.
The applicants urge that Pinard J. erred in law in basing his directions to seek leave upon subsection 303(1) of the Rules which provides:
Rule 303. (1) For the purpose of determining the real question in controversy, or of correcting any defect or error, the Court may, at any stage of a proceeding, and after giving all interested parties an opportunity to be heard, order any document in the matter to be amended on such terms as seem just, and in such manner as it may direct.
It is urged that the Rule is inapplicable since the purposes set out in the Rule, determining the real question in controversy, or correcting any defect or error, were not the reasons for the amendments here sought. Moreover, it is urged that the applicants have a right to file an amended originating notice of motion, at least within 30 days of the decision in question as was the case here, unilaterally, without the necessity of notice to other parties.
I decline to comment on the applicants' argument about the validity of the directions of Mr. Justice Pinard, issued to the Registry to deal with the amended originating notice of motion, which the applicants sought to file with additional affidavits, without the courtesy of notice to other parties to the proceedings already initiated, who already had been involved in interlocutory hearings before McKeown J. The direction of Pinard J., that leave be sought, ensured that all parties to the proceedings have notice and opportunity to respond to the changes proposed by the applicants' amending documents.
In light of the directions given by my colleague Pinard J., my task is to determine whether leave be granted as now requested. I would grant leave, subject to determination of the applications to strike the originating notice of motion, for the following reasons. The amendments do correct the error of the first motion in seeking a declaration in effect against an individual, Mr. Drapeau. The change introduces no basic change in the substance of the applicants' complaints and it creates no ultimate prejudice to the interests of the Commissioner or Mr. Drapeau if these proceedings are to continue. The Court can by direction vary times for filing of their responses to the amended originating notice, if that be required.
I turn to the motions to strike. I note that the respondent Drapeau requests, in the alternative if the originating notice of motion is not struck out, that the application should, at the very least, be dismissed in so far as it is directed to relief against him. He protests that he should not be a respondent in the matter. I note the amended originating notice of motion would eliminate requested declaratory relief against him, but not the applicants' request for costs against him.
The motions to strike are based on the grounds that the originating notice of motion is frivolous and vexatious, and an abuse of the Court's process for there is said to be no serious issue raised by, and no reasonable prospect of success of, the applicants' originating notice of motion. Argument was directed to the jurisdiction of the Court to strike a motion, a matter not expressly provided for in the Rules. As I indicated in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), in my opinion, it is within the inherent jurisdiction of the Court to grant such relief, but discretion to do so would only be exercised where it is clear there is no basis for proceeding by originating motion. (See also American Cyanamid Co. v. Canada (Minister of National Health and Welfare) (1994), 55 C.P.R. (3d) 461 (F.C.T.D.); and David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.).)
If the Court may strike an originating notice of motion, is this a case where it should do so? The Information Commissioner urges several grounds for so doing.
First, it is urged that there is no serious issue raised by the application for review, a finding said to have been made by McKeown J. in the earlier proceedings for injunctive and other relief. However, as I read his comments (reasons for order, delivered from the bench on August 30, 1996, and subsequently edited and released on September 20, 1996, published at (1996), 119 F.T.R. 77 (F.C.T.D.), his references to finding no serious issue were not made with reference to the applicants' originating notice of motion as a whole. Rather, they related to the interim relief there sought, a prohibition order or an injunction against the Commissioner's publishing or releasing to Mr. Drapeau his report and recommendations of August 16, 1996. McKeown J. found that the Commissioner had a duty under the Act to report following investigation of a complaint, and to release the report to the parties concerned. Further, in the investigation of Mr. Drapeau's complaint the Commissioner had met the standard of fairness required, by providing opportunity to both parties, i.e., the Minister of National Defence and Mr. Drapeau, as well as Ms. Petzinger, to comment on the matter before him. He had then determined what recommendations to make, a matter entirely within the Commissioner's discretion. Accordingly, the learned Judge found no serious issue raised about alleged lack of jurisdiction of the Commissioner to make his recommendation and to release the report.
In my view, the finding of McKeown J. that no serious issue is raised concerned the Commissioner's jurisdiction to report with his recommendations, it was not a comment on the seriousness of issues raised by the originating motion as a whole. The latter was not a matter before him in the earlier proceedings. His finding, then, is not a basis for striking the originating notice of motion, either in its original or its amended version.
A second basis for striking out the originating motion urged by the Commissioner is that the nature of his report and recommendations, made in the exercise of his administrative discretion under the Act, is without binding effect or binding legal consequences. As Cory J. noted in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at page 399 the recommendation of the Commissioner is not to be considered a final or binding decision. That is clear from the events in this case where by letter of August 28, 1996 the Minister of National Defence advised that the recommendation of the Commissioner was not accepted and would not be implemented. The Commissioner's subsequent report to Mr. Drapeau so reported.
In view of this it is said that the applicant, Bonnie Petzinger, is unaffected either by the Commissioner's recommendation or by dismissal of the applicants' request that the Commissioner's recommendation be quashed, since the Minister's decision was not to implement the recommendation.
While I am not persuaded that the function of the Commissioner, by reason of its ultimate outcome, that is, a report with non-binding recommendations following an investigation, is beyond the Court's jurisdiction in relation to judicial review, I am persuaded that by the Minister's decision not to implement the recommendation the issue raised by this application for judicial review became moot. While this is not an action such as that dealt with by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the words of Sopinka J. for the Court in that case seem to me apt in the circumstances here. He said, at page 353:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the Court will have no practical effect on such rights, the Court will decline to decide the case.
In my opinion the relief here sought will have no practical effect upon the rights of the parties now that the Minister has declined to act on the Commissioner's recommendation. There is no longer a controversy between the applicants and the Commissioner, except with respect to the appropriateness of the Commissioner's recommendation, which is not to be followed in any event. Because the relief sought is now moot in regard to any practical effects, pursuit of that relief by judicial review is futile in any practical sense. That, in my opinion supports a conclusion that the proceedings should now terminate by striking the originating notice of motion, unless there be some other compelling reason that the matter continue to a hearing.
A third basis for striking out the application at this stage is said by the Commissioner to lie in the purpose of the application, to question the appropriateness of the Commissioner's recommendation, a matter said to be beyond the scope of judicial review in this case, in view of the statutory discretion vested in the Commissioner under subsection 37(1) of the Act. In the words of McKeown J. in his decision (at page 79) in regard to earlier interlocutory proceedings:
Parliament has granted the Commissioner the discretion to determine what recommendations are appropriate in the circumstances of a particular case. It is not for me to review the appropriateness but, rather, I must review the lawfulness
The applicants urge that statement goes too far but I am not so persuaded. So long as a recommendation is not clearly unreasonable in light of the evidence and materials before the Commissioner, and the minimal standards of fairness applicable are met, the Court will not intervene. The discretion is the Commissioner's alone, not the Court's.
In my opinion, the applicants' originating motion seeks to challenge the appropriateness of the Commissioner's recommendation. The merits of the recommendation are not a matter for the Court. Unless the application and supporting affidavits establish a basis for finding the Commissioner acted unlawfully, that his recommendation was clearly unreasonable on the basis of material before him, or that he failed to meet the minimal standard of fairness required in exercise of his administrative discretion, the Court may not intervene.
The fourth argument of the Commissioner for striking the originating notice of motion is that none of those grounds upon which the Court might intervene are here established even on a prima facie basis by the application and supporting affidavits.
While the applicants urge that the Commissioner did not act within the authority delegated by statute, in initiating investigation of Mr. Drapeau's complaint, I have noted the process of investigation is a matter for the Commissioner's discretion under the Act. Further, the characterization of Mr. Drapeau's complaint as having been made for illicit purposes or that the Commissioner should have so decided in advance of any investigation implies that the intent or purposes of a complainant under the Act are qualifying elements of a complaint to be investigated. The Act, however, does not speak of screening of complaints in light of the intent or purpose of the complainant. Any person whose request for government information is not met, or is not met in a reasonable time, may file a complaint with the Commissioner, who then has a duty to investigate the complaint (see the Act, section 30).
In my opinion, no ground is established, prima facie, by the application for judicial review or by supporting affidavits, that would lead the Court to conclude that the Commissioner was here acting without lawful authority.
Further, on the basis of the evidence before the Commissioner his recommendation cannot be said to be clearly unreasonable or without any basis in the information then before the Commissioner and known to all parties. In other proceedings, as all were aware, Ms. Petzinger had given testimony, as she might be called to do again, with effect perceived, at least by Mr. Drapeau, to be against his interests. True, on behalf of the Minister of National Defence, the Deputy Minister by letter of August 28, 1996 advising the Commissioner that the recommendation would not be implemented, made clear that the Minister did not accept the basis for or the recommendation itself made by the Commissioner. That does not mean the Commissioner's recommendation was not within his discretion to make or that it could be characterized as clearly unreasonable in the circumstances known to him, and known to the parties.
Finally, as noted by McKeown J. in the earlier proceedings in this matter, the Minister of National Defence had full opportunity to comment on the complaint and upon the Commissioner's provisional conclusions following investigation. The Minister did comment before the report and recommendations were finally determined. Ms. Petzinger had opportunity to and did comment orally on the complaint in the course of the investigation. It is worth repeating that the Commissioner found no basis for the complaint of Mr. Drapeau about a lack of professional service on her part, or for the complaint that she subjected him to poor service. What the report did conclude was that the allegation that she was in a conflict of interest situation vis-à-vis Mr. Drapeau was not established in fact but her past actions raised a reasonable apprehension of bias against Mr. Drapeau. That is a judgment that a reasonable person, knowledgeable about the relationship of the parties, could reasonably apprehend that Ms. Petzinger, in decisions relating to requests by Mr. Drapeau for access to information, would have a bias against him. That is not a conclusion that she was biased. It is not a conclusion she or the Minister could establish was in error merely by disagreeing with it. It is a conclusion that, in my opinion, was reasonable in light of the information available to the Commissioner. Clearly it was a conclusion open to him on the information before him, and there was opportunity for the parties to comment on his findings, as proposed after the investigation, before they were finally included in his report. I agree with McKeown J. who commented in earlier proceedings that the standard of fairness required of the Commission was fully met.
Thus, in my view, the originating notice of motion and its amending version, together with original and further affidavits for which leave to file is sought, do not in this case establish a prima facie basis for this Court to intervene to grant the relief sought by the applicants. In those circumstances there is no possibility of success for the applicants' originating notice of motion. That assessment meets the exceptional circumstances that warrant exercise of the Court's discretion to strike out, at this stage, the applicants' originating notice of motion. That discretion I now exercise by order accompanying these reasons.
As a consequence of that determination, by order accompanying these reasons I also dismiss the applicants' motion for leave to file the amended originating notice of motion.
Applications to file supplementary affidavits
Since I order the striking of the originating notice of motion and the dismissal of the application for leave to file an amended version, by order accompanying these reasons I also dismiss the applicants' motions for leave to file supplementary affidavits: of Alta Erker, Nos. 1, 2 and 3, all sworn September 11, 1996; and of Robert Emond, dated September 27, 1996.
If I were not striking out the originating notice of motion I would allow the motions for leave to file all these affidavits, without any comment on the weight any of the evidence so added would have in these proceedings. I do so despite argument by the Commissioner that leave should be denied for filing at this stage since the information sought to be put before the Court is not new, i.e., the information was available when the original originating notice of motion was filed, and because the final affidavit, of Robert Emond, is sought to be filed after the Commissioner has responded to the applicants' submissions.
Subsection 1603(1) [as enacted by SOR/92-43, s. 19] of the Rules requires that in the ordinary case affidavit evidence in support of an originating notice of motion be filed with that motion. It does not preclude later filing of affidavit evidence with leave of the Court. In this case affidavits were then filed; now further affidavits are sought to be filed to complete the documentary record before the Court: that purpose is questioned by counsel for Mr. Drapeau, who urges the additional affidavits should be struck since in large part, particularly those of Alta Erker, are sworn on information and belief, not as affidavits of fact within the knowledge of the affiant. By their nature it is said they are improper since only affidavits sworn concerning matters within the knowledge of the affiant are permitted in proceedings for judicial review. Here the "facts" to which reference is made in the affidavits relates to documents the applicants seek to put before the Court to complete the contextual record for considering their application for judicial review. I would not be prepared to refuse leave to file the affidavits for those reasons, though I stress their filing may have little or much significance for the outcome of the proceeding for judicial review if it were to go forward. The ultimate assessment of the weight of evidence they provide would be a matter for the hearing judge. Any prejudice to the Commissioner, or to Mr. Drapeau, if the proceedings were to go forward, could be offset by leave to those parties to file further affidavits or argument in response.
The standing of several parties
The amended originating notice of motion by deleting reference to the Commissioner as a respondent, while still seeking forms of relief directed to him, and costs, raises the issue of the Commissioner's standing in these proceedings. For the applicants it is urged that the Commissioner ought not to have standing as a respondent, now that the application for injunction relief has been refused, on the basis of the Court of Appeal's decision in Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (C.A.) (sometimes referred to as Bernard). For the Commissioner, it is urged that his function is comparable to that of a commission of inquiry, and practice accepts such a body as a party respondent where its process or its decisions are subject to proceedings by way of judicial review. The circumstances seem particularly awkward for the private party adverse in interest to the applicants with regard to the Commissioner's decision, in this case Mr. Drapeau, particularly where the application, as here, is initiated by the Attorney General. Nevertheless, the Court of Appeal decision in Bernard is determinative of the issue; the federal board, commission or tribunal whose decision is subject to review is not a proper party respondent but may be an intervenor in these proceedings, not to argue the merits of the decision made, but to deal with questions of jurisdiction and process.
In my opinion, the Information Commissioner is properly excluded as a respondent if this matter were to proceed to a hearing on the basis of the amended originating notice of motion. The proper standing as intervenor with full party status to make submissions on issues other than the merits of his decision, a matter not before the Court, should continue for the Commissioner, if this matter were to proceed.
For Mr. Drapeau, his standing as a respondent is questioned by his counsel, particularly if he be the sole respondent. Nevertheless, as "an interested person who is adverse in interest to the applicant[s]" in the proceedings before the federal board, etc., here the Information Commissioner, he is properly named as a respondent in the notice of motion (subsection 1602(3) [as enacted by SOR/92-43, s. 19] of the Rules), and if this matter were to proceed he would so continue.
For the Commissioner, written submissions urged that neither Ms. Petzinger nor the Minister of National Defence, were properly applicants in these proceedings, at least after the decision of the Minister not to accept and implement the recommendation made by the Commissioner. I am not so persuaded. If the application were not now struck out and it were to be pursued the Attorney General, acting here for Her Majesty's interests including those of the Minister, would continue to represent those interests and Ms. Petzinger would continue to be an applicant unless she were to withdraw from any further proceedings.
In the result, if proceedings were to continue, the style of cause should be varied to include Mr. Drapeau as the sole respondent to the applicants' motion, with the Information Commissioner as intervenor, with the latter having the right to make submissions in regard to the process followed in his investigation and report, and in regard to his statutory jurisdiction.
Costs
Rule 1618 provides that in respect of an application for judicial review no costs shall be payable unless the Court, for special reasons, so orders. Here all of the parties ask for costs.
The Attorney General seeks costs against both named respondents, on a solicitor-client basis, no less, "having regard to the avoidable and considerable expenses which they caused the applicants to incur by refusing to proceed on September 24, 1996". That date was when the applicants' motions for leave to amend and to file further affidavits came on for hearing and were not disposed of because other motions were about to be filed and Madam Justice McGillis then directed a schedule for filing all motions and for their hearing. The applicants' perception of delay, resulting from an order, is not a ground for special reasons warranting costs let alone costs on a solicitor-client basis.
The Commissioner requested costs against both applicants on a solicitor-client basis for all proceedings occurring after the decision on August 30, 1996 of McKeown J. dismissing injunctive relief sought by the applicants. Even if the actions thereafter of counsel for the applicants were to be perceived as misguided, which is my general interpretation of the several bases urged by the Commission as the grounds for urging solicitor and client costs, that would not in itself constitute the basis for such an award, nor would it in this case be a special reason that would warrant an order for costs on a party and party basis. Even where there is found to be no basis that would warrant continuing proceedings, and that an originating notice of motion for judicial review should be struck out, that would not constitute special circumstances warranting an order of costs under Rule 1618 in a case involving the Attorney General of Canada as applicant and an agency of Her Majesty as respondent. Moreover, it would be even more extraordinary to order costs on a solicitor-client basis. I decline to order costs payable by one officer of government to another.
Counsel for Mr. Drapeau also seeks an order for costs on a solicitor and client basis, payable by the applicants in relation to all stages of this proceeding, including the interlocutory motions dealt with by McKeown J. I note that in the order of August 30, 1996 made by his Lordship in disposing of the motion for injunctive relief he ordered costs to the respondent Mr. Drapeau on a solicitor-client basis in the cause to be payable by the applicants, and he deemed 75% of the time taken to deal with two motions over two days was attributed to that motion. As for the other motion before him, to order that certain materials be maintained in confidence, he specifically ordered no costs. Thus, to that stage the only matter of costs then raised was dealt with.
For proceedings since then I find special reasons to warrant costs on a solicitor-client basis payable by the applicants to the respondent Mr. Drapeau as a result of these factors:
(i) If not earlier, at least after the decision of McKeown J. on August 30, 1996, it was clear there was no possibility, in proceedings for judicial review, of a declaration or other relief directed to Mr. Drapeau, a private citizen, yet the applicants did not withdraw all claims against him. In the amended originating notice of motion they still sought costs on a solicitor-client basis against Mr. Drapeau, in essence because he had filed a complaint with the Information Commissioner which led to considerable time and expense for the applicants in dealing with subsequent proceedings, including those here initiated by the applicants. As noted earlier, the Act permits complaints to be filed and Mr. Drapeau simply acted within his statutory rights. Doing so gave no basis for relief against him in costs or otherwise.
(ii) Continuing the claim for costs against the respondent Mr. Drapeau left him with no real alternative to continuing an active role, with counsel, in the proceedings to date. Absent a claim for costs, with no claim for other relief against him, he might have opted to play no active role in this stage of proceedings, after August 30, even though he continued to be a named respondent.
(iii) In written submissions and in argument for the applicants the purposes or intent of Mr. Drapeau in making a complaint to the Commissioner were characterized as illicit and improper. His intent or purposes have no legal significance for the Commissioner whose obligation is to investigate complaints made to him. In my opinion, counsel for the applicants ought to have understood the Act, the Commissioner's responsibility and Mr. Drapeau's statutory right to seek access to government information and to complain if his requests were not met with reasonable response.
In my opinion the circumstances here constitute special reasons warranting an order of costs pursuant to Rule 1618. The continuing claim by the applicants in costs and continuing allegations of illicit purpose on the part of Mr. Drapeau, when it ought to have been clear to counsel for the applicants that there was no basis for either in this case, particularly after the order of August 30, 1996 by McKeown J., warrant costs on a solicitor-client basis payable to Mr. Drapeau in regard to all proceedings, after August 30, 1996, including his own motion to strike the originating notice of motion.
Conclusion
For the reasons outlined, orders now issue disposing of the various motions dealt with in these reasons.
Thus orders issue:
(1) allowing the application of the respondent, the Information Commissioner and striking out the applicants' originating notice of motion, but without ordering costs;
(2) a similar order allowing the application of the respondent Michel Drapeau, striking out the applicants originating notice of motion, with costs payable by the applicants to this respondent on a solicitor-client basis for proceedings after August 30, 1996;
(3) dismissing the applicants' motions for leave to file an amended originating notice of motion, to file three supplementary affidavits of Alta Erker and to file a supplementary affidavit of Robert Emond, in view of the determination that the originating notice of motion be struck, without any order as to costs;
(4) upholding the objection of the respondent Information Commissioner to production of documents requested by the applicants in their originating notice of motion, and declining to order that the documents be produced, again without any order as to costs.