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Date: 20010129 Docket: A-128-99 CORAM: DESJARDINS J.A. DÉCARY J.A. LÉTOURNEAU J.A. BETWEEN: LES ALIMENTS PRINCE FOODS INC. Appellant - AND - DEPARTMENT OF AGRICULTURE AND AGRIFOOD CANADA Respondent - AND - BERNARD DRAINVILLE Defendant (not present at the motion for dismissal) Hearing held at Québec, Quebec on Monday, January 29, 2001. Judgment from the bench at Québec, Quebec on Monday, January 29, 2001. REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A. Date: 20010129 Docket: A-128-99 CORAM: DESJARDINS J.A. DÉCARY J.A. LÉTOURNEAU J.A. BETWEEN: LES ALIMENTS PRINCE FOODS INC. Appellant - AND - DEPARTMENT OF AGRICULTURE AND AGRIFOOD CANADA Respondent - AND - BERNARD DRAINVILLE Defendant (not present at the motion for dismissal) REASONS FOR JUDGMENT (Delivered from the bench at Québec, Quebec on Monday, January 29, 2001) DÉCARY J.A. [1] The Court has before it an appeal from an order made by Dubé J. and reported at (1999), 164 F.T.R. 104 (F.C.T.D.). Dubé J. dismissed the appellant's motion asking the Court to find that the appearance by the Department of Agriculture as a respondent was inadmissible. According to the appellant the Department, as the tribunal whose decision is at issue, should not be a party to the application for judicial review. [2] In s. 48 the Access to Information Act provides that the burden of establishing that the head of a government institution is authorized to refuse to disclose a record is on the government institution in question when there is an application for judicial review by the person denied access (s. 41) or the Information Commissioner (s. 42). [3] Section 48 assumes, as counsel for the appellant acknowledged, that the federal institution is a party as such to the review proceeding laid down by the Act when that proceeding is initiated pursuant to ss. 41 and 42. [4] The Act contains no provision similar to s. 48 for cases in which the application for judicial review is filed pursuant to s. 44 by a third party objecting to the decision made by a federal institution to release a document. [5] The appellant relied on this discrepancy as a basis for arguing that, if the federal institution can be a party to the proceedings in cases covered by ss. 41 and 42 (in practice, when there is a refusal to disclose), it cannot be as in the case at bar in cases covered by s. 44 (in practice, when there is disclosure). Ironically, the appellant asked the Court to exclude the appearance by the Department of Agriculture although it had itself designated the Department as a defendant in its application for judicial review. [6] This argument cannot succeed. The only effect of s. 48 of the Act is to prescribe an unusual reversal of the burden of proof in a case of refusal to disclose, and this can be explained by the fact that a refusal is contrary to the aim of the Act. Unlike the usual situation, in which it is for a plaintiff to show how a decision is illegal, Parliament here intended that it would be for the government institution to show how its decision to refuse is legal. In the case of disclosure covered by s. 44, the usual practice again applies and the plaintiff (the third party) assumes the burden of showing how the government institution's decision is illegal. In our opinion, it follows that the Department of Agriculture is, within the meaning of Rule 303(1)(b), a person "required to be named as a party under an Act of Parliament". [7] In addition to this reason based on the wording we consider, consistent with what MacKay J. said in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, at 205 and 206, that it is essential to the structure of this particular Act that the Court, hearing an action which is more like a trial de novo than a typical judicial review proceeding, has before it the position of the government institution in question, regardless of the fact that the institution may be opposed to disclosure (in which case it assumes the burden of proof) or that the objection to disclosure comes from a third party. [8] The appeal will be dismissed with costs to the Minister and Mr. Drainville.
Québec, Quebec January 29, 2001 Certified true translation Suzanne M. Gauthier, LL.L. Trad. a. FEDERAL COURT OF APPEAL Date: 20010129 Docket: A-128-99 Between: LES ALIMENTS PRINCE FOODS INC.
Appellant
- AND - DEPARTMENT OF AGRICULTURE AND AGRIFOOD CANADA Respondent - AND - BERNARD DRAINVILLE Defendant
REASONS FOR JUDGMENT
FEDERAL COURT APPEAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD COURT FILE No.: A-128-99
Appellant AND: DEPARTMENT OF AGRICULTURE AND AGRIFOOD CANADA Respondent AND: BERNARD DRAINVILLE Defendant (not present at the motion for dismissal) PLACE OF HEARING: Québec, Quebec DATE OF HEARING: January 29, 2001 REASONS FOR JUDGMENT OF THE COURT BY: Décary J.A. DATED: January 29, 2001 APPEARANCES:
SOLICITORS OF RECORD:
Morris Rosenberg for the respondent Deputy Attorney General of Canada Société Radio-Canada for the defendant Montréal, Quebec |
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