rubin v. canada
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*ftnote1 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.