ACCESS TO INFORMATION |
Canada (Information Commissioner) v. Canada (Minister of the Environment)
A-233-01
2003 FCA 68, Noël J.A.
7/2/03
15 pp.
Appeal from decision ([2001] 3 F.C. 514 (T.D.)) granting Information Commissioner's application to review decision of Minister of Environment Canada (MEC), on advice of Privy Council Office (PCO), denying applicant Ethyl Canada Inc. (applicant) access to four documents which both MEC and PCO determined were Cabinet confidences--Appellant argued Applications Judge erred by ordering any severable information be disclosed, thereby denying MEC opportunity to invoke any exemption applying to information under Access to Information Act, ss. 13 to 26--MEC should have opportunity to claim any exemption possibly applying--From outset government officials took position four documents in issue entirely outside purview of Access to Information Act-- Owing to that approach, those charged with reviewing documents have not turned their mind to exemptions which might come into play if parts of requested documents released --Having regard to fact third party rights may be affected, just and appropriate to vary order to allow head of government institution opportunity to consider and claim any exemption possibly applying--Otherwise appeal dismissed--Regarding Court's jurisdiction to review certificate issued under Canada Evidence Act (CEA) s. 39, Applications Judge's decision entirely consistent with Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3--Babcock makes clear that courts can review decisions which "do not flow from statutory authority clearly granted and properly exercised" and may consider "surrounding evidence" to determine whether statutory power has been properly exercised--Order of Applications Judge potentially confusing because not expressly referring to purpose contemplated by Access to Information Act, ss. 69(1)(b) and 39(2)(b) of CEA--Such purpose essential to validity of order and cannot be ascertained with respect to documents in issue unless organized body or corpus of words meeting definition of "discussion paper" within documents or appended to documents--Person charged with review of documents must determine whether, within or appended to documents, organized body or corpus of words coming within definition of "discussion paper"--Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39--Access to Information Act, R.S.C., 1985, c. A-1, ss. 13, 26, 69(1)(b).