Judgments

[1994] 2 .F.C. 707

A-245-93

The Clerk of the Privy Council (Appellant)

v.

Ken Rubin (Respondent)

Indexed as: Rubin v. Canada (Clerk of the Privy Council) (C.A.)

Court of Appeal, Stone, Linden and Robertson JJ.A. —Ottawa, February 15 and March 14, 1994.

Access to information — Appeal from F.C.T.D. order granting application for judicial review of refusal to disclose communication between Clerk of Privy Council and Information Commissioner regarding complaint re: denial of information as to per diem remuneration paid to Chairman of Canada Council — Respondent denied access to representations made to Information Commissioner during investigation of complaint — Refusal based on Access to Information Act, s. 35 — Motions Judge finding provision inapplicable where investigation completed — Right of access under Act not absolute — Information Commissioner must preserve confidentiality of representations made during and subsequent to investigation — S. 35(2) to be construed in light of whole Act — Underlying policy preserving confidentiality of information at all times — Complainant having no right of access to representations under appellant’s control — Motions Judge wrong in restricting application of confidentiality requirements in s. 35 to duration of investigative process.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 13, 14, 15, 16(1)(c), 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187), 37, 41, 61, 62, 63 (as am. idem), 64, 65 (as am. idem).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; [1979] C.T.C. 71; (1979), 79 DTC 5068; 25 N.R. 361.

AUTHORS CITED

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

APPEAL from a Trial Division order ([1993] 2 F.C. 391) granting an application under section 41 of the Access to Information Act for judicial review of the appellant’s refusal to disclose information requested by the respondent. Appeal allowed.

COUNSEL:

Barbara A. McIsaac, Q.C., for appellant.

APPEARANCE:

Ken Rubin on his own behalf.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

RESPONDENT ON HIS OWN BEHALF:

Ken Rubin, Ottawa.

The following are the reasons for judgment rendered in English by

Stone J.A.: This is an appeal from an order of the Trial Division made March 2, 1993 [[1993] 2 F.C. 391] which granted the respondent’s application under section 41 of the Access to Information Act, R.S.C., 1985, c. A-1, for judicial review of the appellant’s refusal to disclose information that had been requested by the respondent.

The request for information grew out of two earlier requests under the Act, one (108-2/896060) by the respondent and the other (108-2/886055) by Mr. Don Sellar. Both requests sought to have disclosed the per diem remuneration paid to Allan Gotlieb, the Chairman of the Canada Council, who had been appointed by order in council [P.C. 1988-2584]. The refusal of both requests led the respondent and Mr. Sellar to lodge complaints with the Information Commissioner pursuant to section 30 of the Act. After investigating the complaint, the Information Commissioner found the appellant’s refusal to be well-founded. Mr. Sellar did not pursue the matter further. The respondent, however, brought an application pursuant to section 41 of the Act for a review of the matter. At the date the impugned order was made, that application had not been disposed of in the Trial Division.[1] In the meantime, on March 23, 1993, the Trial Division dismissed the application and thereby upheld the refusal of the appellant to disclose the sought-after information on the ground that the subject-matter of the request was “personal information” which was protected from disclosure by s. 19 of the Act.

The request for the information in issue in this appeal was made November 1, 1990. It sought the following information from the appellant:

Correspondence/communications records between yourselves and the Information Commissioner or their office regarding my complaint re PCO request 108-2/896060, and request 108-2/886055 and any internal memos/briefing notes/correspondence.

On December 17, 1990 the request was refused on the ground that by virtue of section 35 of the Act the respondent was not entitled to have access to representations made to the Information Commissioner in the course of the investigation of a complaint. On December 20, 1990, the respondent submitted a complaint to the Information Commissioner with respect to this second refusal. The complaint was duly investigated by the Information Commissioner after which the respondent was informed by letter of October 8, 1991, that the appellant had lawful authority to deny the request and accordingly that the refusal was well-founded. In arriving at his conclusion the Information Commissioner considered whether the refusal properly fell within the exceptions contained in either paragraph 16(1)(c) or section 35 of the Act. He canvassed arguments for and against disclosure and laid particular emphasis on the integrity of the investigative process which he saw as requiring that parties to a complaint “be assured that the representations made to the Commissioner will remain confidential” and stated that “[t]he process of complaint investigation and resolution cannot function effectively without the candour and confidence which such an assurance serves”. He then concluded:

In my view, the department’s decision to rely upon s. 35 does not taint its decision to deny you access to the requested records. While it could be argued that s. 35 provides only a reason for withholding and that invocation of paragraph 16(1)(c) is the proper means to that end, I can see no useful purpose in quibbling over which section of the Act to invoke when I have no doubt that the records have been lawfully withheld.

In the Trial Division, the applicability of both paragraph 16(1)(c) and section 35 of the Act as grounds for sheltering the requested information from disclosure, were in issue. These read as follows:

16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains

…

(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

(i) relating to the existence or nature of a particular investigation,

(ii) that would reveal the identity of a confidential source of information, or

(iii) that was obtained or prepared in the course of an investigation; or

…

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

(c) where the Information Commissioner intends to recommend under subsection 37(1) that a record or a part thereof be disclosed that contains or that the Information Commissioner has reason to believe might contain

(i) trade secrets of a third party,

(ii) information described in paragraph 20(1)(b) that was supplied by a third party, or

(iii) information the disclosure of which the Information Commissioner could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,

the third party, if the third party can reasonably be located,

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.

The learned Motions Judge considered the possible application of both paragraph 16(1)(c) and of section 35 in some detail. He found paragraph 16(1)(c) to be inapplicable because, in his view, it “relates to records that arise in individual cases”. Section 35 did not entitle the respondent to disclosure of “representations” made to the Information Commissioner in the course of an investigation, but had no application after the investigation had been completed. Despite that view, the Motions Judge acknowledged the importance of preserving the credibility and effectiveness of the Information Commissioner and the need of maintaining strict confidentiality on a continuing basis of information given to him in the course of an investigation of a complaint. As he put it, at page 403: “Parties must have confidence that the Information Commissioner will not divulge the information given to him.” In his view, section 35 was inapplicable to the subject request for the following reasons, which appear at page 404:

In spite of these observations and my perception that Parliament intended the Office of the Information Commissioner to be an efficient and effective mediator in disputes involving access to information under government control, I cannot accede to the argument made by counsel for the PCO in this case.

The words of section 35 are clear. Section 35 only applies “[i]n the course of an investigation of a complaint”. There is nothing express or implied in section 35 that would suggest that it has application after the conclusion of an investigation by the Commissioner. For me to hold that section 35 is broad enough to require confidentiality even after the conclusion of the Commissioner’s investigation would be tantamount to my adding words to the section.

The issues in this appeal are whether the Motions Judge erred in restricting the application of the confidentiality requirements in section 35 of the Act to the duration of the investigative process and, secondly, whether he erred in refusing to apply the provisions of paragraph 16(1)(c) of the Act to the investigative process of the Information Commissioner as a whole.

In approaching these issues it is well to bear in mind the general scheme of the Act in so far as it relates to the issues raised for decision. The purpose of the Act is set forth in subsection 2(1):

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Subsection 4(1) provides a basic right of access, as follows:

4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is

(a) a Canadian citizen, or

(b) a permanent resident within the meaning of the Immigration Act,

has a right to and shall, on request, be given access to any record under the control of a government institution.

Thus it will be seen from the provisions of these two sections, that although the Act creates a right of access, the right is not absolute. It must be examined in the light of other provisions of the Act and the exemptions therein contained. Several such exemptions are grouped together in sections 13-26 of the Act.

Sections 30-37 provide for the making, investigation and disposition of complaints from a refusal of access. The right of a person to complain is provided for in subsection 30(1). According to section 31, a complaint must be made within one year from the time when the request for information was received. Section 32 requires the Information Commissioner to notify the head of the government institution concerned of the intention to carry out the investigation and of the substance of the complaint. The powers of the Information Commissioner in relation to his investigation of a complaint are set forth in section 36 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187]. These include the summoning and enforcing the attendance of persons and their compellability to give evidence on oath and to produce documents and things; and the administration of oaths and the reception of evidence and other information “whether on oath or by affidavit or otherwise” as the Information Commissioner sees fit, whether the evidence is or would be admissible in a court of law. Section 37 of the Act specifies the duties of the Information Commissioner following the disposition of a complaint. Generally speaking, these are to report to the head of the government institution concerned pursuant to subsection 37(1) and to a complainant pursuant to subsection 37(2). Nothing in this section appears to bind the head of a government institution to implement any recommendation of the Information Commissioner. The recourse left to a complainant is to apply to the Trial Division for review of the matter, pursuant to section 41 of the Act, whenever the head of a government institution persists in denying a request despite a recommendation made by the Information Commissioner to the contrary.

While the primary task facing the Court with respect to section 35 is the construction of the language in which it is cast, the Act does contain provisions which appear to be of assistance in performing this task. The appellant directs the Court’s attention to sections 61-65 as evincing an underlying policy that, subject to some exceptions, information received by or on behalf of the Information Commissioner must not be disclosed at any time, either while an investigation is underway or after it has been completed. Thus by section 61, Parliament was at pains to ensure that the Commissioner and persons acting on behalf or under his direction maintain the secrecy of information relating to any investigation under the Act. That section reads:

61. The Information Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any investigation under this or any other Act of Parliament shall, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.

Section 62 appears even more explicit in proscribing the disclosure of information that is received by the Information Commissioner or by others acting on his behalf or under his direction in the performance of their duties and functions. It reads:

62. Subject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commission shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.

A limited discretion is allowed to the Information Commissioner of disclosing information with respect to matters of administration, offences related to the enforcement of the Act, certain kinds of criminal prosecutions and review proceedings under the Act. This is provided for in section 63 [as am. idem] which reads:

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.

The care with which the Information Commissioner and others are required to deal with information in carrying out an investigation under the Act is again highlighted in section 64. That section instructs the Information Commissioner to take reasonable precautions not to disclose information in the following circumstances:

64. In carrying out an investigation under this Act and in any report made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose,

(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or

(b) any information as to whether a record exists where the head of a government institution, in refusing to give access to the record under this Act, does not indicate whether it exists.

Finally, but significantly, the competency or compellability of the Information Commissioner or any person acting on his behalf or under his direction as witnesses is severely qualified by the provisions of section 65 [as am. idem] of the Act, which read:

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.

The Motions Judge was able to conclude that paragraph 16(1)(c) and section 35 were inapplicable by examining the language in which they were cast. I agree that it is this language which requires interpretation and that it is the interpretation of this language which must remain the primary focus of inquiry. Subsection 35(1) could not be plainer in setting forth Parliament’s intention: the investigation of the complaint “shall be conducted in private”. On the other hand, the Motions Judge thought that the purpose of the concluding words of subsection 35(2) was to protect from disclosure any “representations” made to the Information Commissioner only if they were so made, as the opening words state, “[i]n the course of an investigation” itself. This allowed him to conclude that such “representations” were not by the subsection shielded from disclosure once the Information Commissioner’s investigation of a complaint had been completed.

The appellant submits that when the internal structure of the subsection is examined, it will be seen that its opening words were not intended to qualify its closing words but only to demarcate the period during which the “reasonable opportunity to make representations shall be given” to persons falling within paragraphs (a) to (c). As counsel put it, because the concluding words are introduced by the conjunction “but”, they were meant to qualify the first portion of the subsection because that word marks the introduction of an independent sentence connected in sense though not in form with that portion. In short, the words in the second portion, “but no one is entitled as of right … to have access to … representations made to the Commissioner by any other person”, evince a clear intention that no right of access to representations made in the course of an investigation was intended at any time.

The soundness of the argument may be tested in two ways. The first is by considering the peculiar role of the Information Commissioner, standing as he does on neutral ground between disputing parties—the one who asserts a right of disclosure and the other who denies it. The uniqueness of his role was alluded to by the Motions Judge at pages 403-404 of his reasons, where he stated:

A second reason for section 35 would appear to relate to the role of the Information Commissioner. While he has no power to order disclosure, a credible and effective Commissioner should have significant persuasive power to encourage voluntary resolution of requests for information under government control. In this context, it should be remembered that such information may be either government information, or information of private individuals or others that is under government control.

An important aspect of the development of that credibility and effectiveness is, in my view, the maintenance of strict confidentiality of information that is given to the Commissioner. Indeed, the provisions of the Act that require that the Information Commissioner maintain strict confidentiality on a continuing basis over information given to him, support this conclusion. Parties must have confidence that the Information Commissioner will not divulge the information given to him.

Enhancing the persuasive influence of the Information Commissioner is consistent with the objective that access requests should be resolved quickly and at minimal costs. Of course, in the event a dispute cannot be resolved at the Information Commissioner stage, a complainant can always have recourse to this Court. However, that is his last resort and would not likely be as satisfactory as a resolution at the Information Commissioner stage, because of the additional time and expense involved.

Forced disclosure of representations, it seems to me, may well result in the role of the Information Commissioner becoming more formal and the process thereby becoming less effective. This is not in the interest of the promotion of timely access to information under government control which is the rationale for the legislation

I respectfully agree with these views. In my view, this reasoning also argues for preserving the confidentiality of representations made in the course of an investigation during as well as subsequent to the investigation unless, of course, the statute requires or permits disclosure.

The second way of testing the appellant’s argument is to consider subsection 35(2) in the light of the Act as a whole. I have already recited several provisions as appearing to reflect an underlying policy of at all times preserving the confidentiality of information received from a disputing party during an investigation. These are sections 61-65. Sections 61, 62 and 65, in particular, lend considerable force to the appellant’s submission. The operation of section 61 is not limited to any particular period of time. Section 62 requires that, subject to the 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.” Section 65 renders the Information Commissioner or any person acting on behalf of or under the direction of the Commissioner “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” except in proceedings of the sort therein mentioned.

I find merit in the appellant’s argument. Subsection 35(2) appears to have two distinct purposes. It ensures in its opening portion that the persons referred to in paragraphs (a) to (c) must have a reasonable opportunity to make representations “[i]n the course of an investigation of a complaint”. The words which follow the paragraphs expressly deny the right of “access to … representations made to the Commissioner”. I am unable to see that the opening words qualify this denial of access. In my view, sections 61, 62 and 65 reinforce this construction. On their face, sections 61 and 62 create on-going obligations which bind those to whom they are directed at all times. Similarly, section 65 shields information acquired during an investigation from disclosure in legal proceedings except in the types of proceedings which are specifically mentioned. Section 63, on the other hand, enables the Commissioner and the others to whom section 65 is addressed, to disclose information in very limited circumstances. To construe subsection 35(2) as protecting against the disclosure of information to the respondent during the course of an investigation but not afterwards would produce inconsistency and disharmony between that subsection and other sections of the Act to which I have just referred. I do not think Parliament should be taken as having intended this to be so. (See e.g., R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865, at page 872; E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto, 1983), at pages 34-35.) In my view, the fact that the confidentiality of representations made to the Information Commissioner during an investigation of a complaint must be preserved, save in limited circumstances, indicates that the complainant was given no right of access to any such representations under the appellant’s control in the circumstances of this case. I so construe the provisions of subsection 35(2) of the Act.

As I have concluded that subsection 35(2) does deny a right of access to the requested information, there is no need to examine the further argument that it is protected from disclosure by virtue of paragraph 16(1)(c) of the Act.

I would allow the appeal with costs, set aside the order of the Trial Division of March 2, 1993 and dismiss the respondent’s application for judicial review.

Linden J.A.: I agree.

Robertson J.A.: I agree.

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