canada post corp. v. canada
A-372-93
Canada Post Corporation (Appellant) (Applicant)
v.
Minister of Public Works and Michael Duquette (Respondents) (Respondents)
and
Information Commissioner of Canada (Intervenor)
Indexed as: Canada Post Corp. v. Canada (Minister of Public Works) (C.A.)
Court of Appeal, Pratte, Marceau and Létourneau JJ.A."Ottawa, January 23 and February 10, 1995.
Access to information " Appeal from F.C.T.D. decision documents compiled by Public Works Canada as agent of Canada Post Corporation under control of government institution " Word "control" in Access to Information Act, s. 4(1) undefined, unlimited " Act giving citizen meaningful right of access to government information " PWC owner of records constituted by it in execution of contract with CPC " Records collected by government institution in performance of official duties.
This was an appeal from a decision of Rothstein J. that documents compiled by Public Works Canada (PWC) for its use in providing property management and related services as agent of its principal, Canada Post Corporation (CPC) were "under the control of a government institution" within the meaning of subsection 4(1) of the Access to Information Act. The respondent, Duquette, a CUPW representative, made requests under the Act for disclosure of documents in the possession of PWC relating to the properties of CPC. PWC indicated its intention to withhold all records in respect of which CPC was a third party, but to release the remainder of the material contained in the files, including a revised computer printout of CPC properties. Upon a preliminary application by CPC for a determination as to whether the Act applied to these records, the Motions Judge refused to set aside the decision of PWC to disclose having found that the records were under its control.
Held (Marceau J.A. dissenting), the appeal should be dismissed.
Per Létourneau J.A.: The notion of control referred to in subsection 4(1) of the Access to Information Act is left undefined and unlimited. It is the duty of courts to give that provision a liberal and purposive construction without reading in limiting words not found in the Act. It is not in the power of this Court to cut down the broad meaning of the word "control" as it was Parliament's intention to give the citizen a meaningful right of access under the Act to government information. PWC had the day-to-day managerial and administrative control over the records that it created and that were in its possession and custody. It appears from a combined reading of sections 2 and 4 of the Act that the information that the government has under its control falls into the category of "government information" and that Parliament intended the Act to apply liberally and broadly with the citizen's right of access to such information being denied only in limited and specific exceptions. Subsection 4(1) contains a "notwithstanding clause" which gives the Act an overriding status with respect to any other Act of Parliament. Records constituted by PWC in the execution of its contract with the appellant belonged to PWC and were collected by that government institution in the performance of its official duties. The information contained in these records constituted government information subject to the Act.
Per Marceau J.A. (dissenting): The expression "under the control of" in section 4 of the Act was not used by the legislator to convey the sole meaning of being in one's hands, holding, possessing. "Control" had to mean and actually meant more than mere physical possession. It connotes authority whereas "possession" merely indicates custody. The history of the legislation indicate that, for Parliament, the word "control" had to be attributed a full and significant meaning different and well beyond that of mere possession. The only aspect that, in the context of the Act, may validly distinguish the idea of "control" from that of "mere possession" is the character of dominion or command that may be exercised over the information contained in the record. An institution may be said to have control over some record or information, and not only to be in possession thereof, when it can consider the information or record as its own so that it can keep it or dispose of it without regard to its nature or content and notwithstanding any objection of the individual concerned. This is realized only when the records have been compiled or created by the institution in the course of executing its official duties. PWC could not be said to be exercising "official duties" when it carried out its agreement with CPC. A department may be said to be conducting official duties only when it acts in the execution of a mandate conferred on it by Parliament or by the Governor in Council under an Act of Parliament. The records and information requested by the respondent were not subject to disclosure under the Access to Information Act.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 3 "government institution", "third party", 4, 20(1),(2), 44.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Freedom of Information Act, 5 U.S.C. 552 (1982).
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 8(3) (as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12), 10(3).
Public Works Act, R.S.C., 1985, c. P-38, s. 9(3) (as enacted by R.S.C., 1985 (1st Supp.), c. 13, s. 1).
cases judicially considered
considered:
Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).
referred to:
University of British Columbia v. Berg, [1993] 2 S.C.R. 353; (1993), 152 N.R. 99; Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143; [1988] 5 W.W.R. 151; (1988), 59 Alta. L.R. (2d) 353; 18 F.T.R. 15 (T.D.); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480; (1989), 23 C.P.R. (3d) 297; 24 F.T.R. 62 (T.D.); Warburton v. Loveland (1832), 6 E.R. 806 (H.L.); Bank of England v. Vagliano Brothers, [1891] A.C. 107 (H.L.).
authors cited
Canada. Treasury Board. Access to Information and Privacy Policies and Guidelines. Ottawa: Treasury Board of Canada, 1992.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Le Nouveau Petit Robert. Paris: Dictionnaires Le Robert, 1993.
APPEAL from a Trial Division decision ([1993] 3 F.C. 320) that documents compiled by PWC for its use in providing property management and related services as agent of principal CPC were "under the control of a government institution" within the meaning of subsection 4(1) of the Access to Information Act. Appeal dismissed.
counsel:
John B. Laskin for appellant (applicant).
Nanette Rosen for respondent (respondent) Minister of Public Works.
Timothy G. M. Hadwen for respondent (respondent) Michael Duquette.
Daniel Brunet for intervenor.
solicitors:
Tory Tory Deslauriers & Binnington, Toronto, for appellant (applicant).
Deputy Attorney General of Canada for respondent (respondent) Minister of Public Works.
Cavalluzzo, Hayes, Shilton, McIntyre & Cornish, Toronto, for respondent (respondent) Michael Duquette.
Legal Services, Office of the Information Commissioner of Canada, for intervener.
The following are the reasons for judgment rendered in English by
Marceau J.A. (dissenting): The two leading provisions of the Access to Information Act, R.S.C., 1985, c. A-1, are sections 2 and 4. The former sets out the purpose of the Act, the latter the right that is being created. They provide as follows:
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.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
. . .
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.
(2) The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.
(3) For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.
On reading those provisions, one cannot avoid noticing that they use terms whose purport is not readily clear. What is meant by "under the control" of the institution? Those are key words since the very ambit of the legislation depends on the definition that is attached to them. This is the issue that forms the subject of the current appeal from the Trial Division [[1993] 3 F.C. 320]. More precisely, the question raised is whether the Access to Information Act applies to records in the possession of a government institution pursuant to a private agreement according to which the institution performs services for a private party. Let us put the issue in its factual and procedural context so that it can be seen in its proper perspective.
Since 1981, Canada Post Corporation (Canada Post), has been a federal Crown corporation with a mandate to operate a postal service for Canada on a self-sustaining financial basis. It is not a "government institution" within the meaning formally assigned to that term in the Access to Information Act (the Act) [section 3]. Canada Post, however, has retained the services of the Department of Public Works and Government Services (Public Works) for the management of its properties. Public Works is authorized by its enabling statute to enter into commercial property management services contracts with parties not attached to the government [Public Works Act] (R.S.C., 1985, c. P-38, s. 9 [as am. by R.S.C., 1985 (1st Supp.), c. 13, s. 1]). The arrangement is governed by two agreements, the Comprehensive Realty Management and Services Agreement (the 1984 agreement) and the Grants in Lieu of Taxes Management Agreement (the 1988 agreement). Both agreements establish that the relationship between the parties is that of principal and agent and both stipulate that documents in relation to Canada Post properties shall be kept by Public Works. The 1988 agreement specifically states that any records relating to Canada Post are the property of Canada Post and must be transferred to it on termination of the agreement. The 1984 agreement has no such specific statement, but pursuant to clause 3.2 therein, Public Works has been instructed not to "release information concerning any Canada Post Corporation lease to anyone without the prior written consent of Canada Post," and not to discuss or impart any information of any kind regarding Canada Post to anyone outside of Public Works.
In February 1991, the respondent, Michael Duquette, a union representative of the Canadian Union of Postal Workers, made eight requests under the Act for disclosure of documents in the possession of Public Works relating to the properties of Canada Post. Public Works identified 53 volumes of documents and two computer printouts as records that fell within the requests. Advised of the requests, Canada Post responded that it was not subject to the Access to Information Act, and that, since the records in question were held by Public Works only as its agent, the Act was inapplicable. It further advised that the exemptions from disclosure in paragraphs 20(1)(b), (c) and (d) of the Act provided a further ground on which disclosure of the records should be denied. Public Works, however, was not convinced.
By letter dated July 23, 1991, Public Works indicated its intention to: (1) withhold all records in respect of which Canada Post was a third party, relying on paragraphs 20(1)(b), (c) and (d) of the Act; (2) release the remainder of the material contained in the files; and (3) release a revised computer printout of Canada Post properties showing municipality, street address, asset type and asset name on the basis that this latter information was already public. Canada Post could only prevent disclosure by resorting to legal proceedings.
On August 12, 1991, Canada Post issued notice of an application for review, under section 44 of the Act,1*ftnote1 44. (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.
(2) The head of a government institution who has given notice under paragraph 28(1)(b) or subsection 29(1) that a record requested under this Act or a part thereof will be disclosed shall forthwith on being given notice of an application made under subsection (1) in respect of the disclosure give written notice of the application to the person who requested access to the record.
(3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review. in respect of the decision by Public Works to make disclosure. Following a series of pre-trial conferences, it was agreed by the parties, and ordered by the Associate Chief Justice, that the application would be split in two, the Court first being asked to determine whether the Act applied to the records in question. By decision rendered June 3, 1993, a Motions Judge denied the preliminary application and refused to set aside the decision of Public Works to disclose on the ground that the records were not under its control. It is this decision which is now before the Court for review.
In support of his decision, the learned Motions Judge delivered comprehensive, clear and well presented reasons in which he deals with each and every point of argument advanced by the parties, Canada Post and Michael Duquette.2*ftnote2 Public Works took no position before the Motions Judge and it is only at the appeal level that the Information Commissioner sought and obtained leave to intervene. I propose to review in some detail those reasons; in so doing, we will touch upon all the submissions of counsel, which submissions were substantially the same before the Court of Appeal.
The Judge starts his reasons by commenting on the status of the parties and the contractual relationship between them. Mr. Duquette's position as a union representative, writes the Judge, is not a relevant consideration, the right of access belonging to any Canadian citizen. Nor is the fact that Canada Post is a Crown corporation, since, by not being listed in Schedule 1 of the Act, it meets the definition of a third party as given in section 3 of the Act.3*ftnote3 3. In this Act,
. . .
"third party", in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution. As to the relationship between Canada Post and Public Works, it is clearly one of principal and agent on the basis of an agreement that contemplates confidentiality of the information acquired by the agent. In the absence of overriding statutory provisions, Public Works could not disclose Canada Post information in its possession. To do so would place it in breach of the principal/agent agreement.
The question, states the Judge, is whether such an agreement or the principal/agent relationship in itself precludes the operation of the Act. There is nothing in the Act which states that it does not extend to information held by a government institution in its capacity as an agent for a third party principal. The contention that a record which is in the possession of a government institution because of the principal/agent relationship would not be under the "control of the government institution" within the meaning of the Act has no basis. The word "control" is not defined in the Act, and the dictionary definitions cannot be relied on because the term is open to a wide variety of meanings depending upon the circumstances in which it is used. For one purpose, Canada Post could be said to have control over the records while, for other purposes, Public Works would have control.
It is not the dictionary definitions but rather the purpose and the scheme of the Act which have to be looked at for guidance, continues the Judge. The purpose of the Act is to provide a right of access to "government information," a phrase not defined in the Act but which could mean, as suggested by subsection 2(1), any information contained in records in the hands of a government institution. The word "control" is not to be modified depending on how the information is to be used by a government institution or the extent to which a government institution may dispose of it. Nor should "control" be affected by a private agreement between a government institution and a third party. The scheme of the Act, according to the Judge, is to be wholly inclusive and then to allow for exemptions; all information in the hands of the Government is subject to the Act and, therefore, to disclosure, except information expressly exempted. The same view of the Act was expressed in two prior decisions of the Trial Division, Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 and Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480.
The learned Judge then rejects the invitation of counsel to attach some significance to the Access to Information and Privacy Policies and Guidelines published by Treasury Board for its definition of control. This document may be an aid to interpretation but it is not binding on the Government or the Court. The Guidelines are not of assistance in the consideration of what constitutes control in the context of third party information in the possession of government institutions.
The Judge also refuses to give any significance to the fact that the Privacy Act, R.S.C., 1985, c. P-21, and provincial access statutes use the terms "held," "custody or control" and "possession" in addition to the term "control." The appellant's argument that this must lead to the conclusion that "control" as used in the Access to Information Act must mean something narrower is not valid. There is no evidence as to why this wording was used in the other statutes. Furthermore, the task of the Court is to ascertain the meaning of the term "records under the control of a government institution" by looking to the wording and context of the Access to Information Act. Based on the scheme of the Act and the case law, there are convincing reasons why the term contemplates records in the possession of a government institution and not a narrower meaning.
The Judge finally expresses complete disagreement with the claim that documents can only be disclosed if they are within the legal possession of Public Works, not just the physical possession. This distinction may be relevant in the context of discovery of documents, but there is no analogy between discovery of documents in litigation and access to records under the Act. The discovery process is adversarial in nature and relevancy is the predominant test for disclosure. By contrast, access under the Act is based on the public interest in disclosure and not on the private interest of litigants. There are many exemptions justifying confidentiality under the Act that would not be available in the discovery process. The considerations for disclosure and confidentiality under the Act constitute a code in themselves which cannot properly be interpreted by reference to considerations in the discovery process. The fact that a government institution has possession of records, whether in a legal or corporeal sense, is sufficient for such records to be subject to the Act.
This is, as I understand it, the substance of the reasoning of the learned Motions Judge and his treatment of the various submissions of the parties. I realize that my summary is far from doing justice to the precision and comprehensibility of his reasons, but I think I followed closely enough his thoughts. In the course of my analysis, in dealing with the same points as he did, it will become clear that I share many of those thoughts. The point remains, however, that I respectfully disagree with his central conclusion and that disagreement gives me my starting point.
1. My first proposition is that it is not possible that the expression "under the control of" as used in the Act, especially in section 4 where the right is created, was used by the legislator to convey the sole meaning of being in one's hands, holding, possessing. In the minds of the drafters of the Act and in the understanding of Parliament, "control" had to mean and actually meant more than mere physical possession. I base my assertion on several interrelated reasons.
The first to be mentioned is that, in their normal and proper sense, the two words "control" and "possession" do not signify the same concept. "Control" connotes authority whereas "possession" merely indicates custody. It is true that they are used interchangeably in some contexts, but that occurs because normally one is an attribute of the other. Possession is usually a consequence of control. To say, as the learned Judge says and counsel for the respondent repeats, that a person who has possession of a thing has some control over it simply means that a person has one of the basic attributes of control. There is no such thing as a proportion of control. While I am prepared to agree with the Motions Judge that the dictionary definition alone cannot solve the problem, it is necessary to recognize that, in common but proper language, "control" and "possession" do not have the same meaning and cannot be taken one for the other.
A second reason is that Parliament cannot be presumed to have used the term "control" instead of the more simple expressions "in the hands of" or "in the possession of" without realizing the difference, by accident or inadvertence, so to speak. Not only was that term a key one in the new legislation, but the Privacy Act, discussed and enacted at the same time (see S.C. 1981-82-83, c. 111), uses different terms or couples the term "control" with others. In section 2 and subsections 8(3) [as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12] and 10(3) of the Privacy Act, for example, the phrases "held by a government institution" and "under the custody or control" are used. The lack of concordance could not have passed unnoticed.
Another reason is that the history of the legislation provides, I think, an undeniable indication that, for Parliament, the word "control" had to be attributed a full and significant meaning different and well beyond that of mere possession. I reproduce again here for convenience, in both versions this time, French and English, the central provision of the Act, subsection 4(1):
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. [Emphasis added.]
The French term that corresponds to the English one "control" is, as emphasized, "relevant de." It is clear that the drafters had some difficulty in choosing the right word. There is a French word "contrôle" of course, but it does not appear that it can be used with respect to a thing, especially a document. In the original statute in 1982, the corresponding French phrase for "records under the control of a government institution" (both in section 2, which sets out the policy of the Act, and in section 4, reproduced above) was "documents de l'administration fédérale." This was not changed in the revised statutes of 1985. It was only in 1992, in an Act said to be enacted essentially to correct certain anomalies, inconsistencies, archaisms and error in the statutes of Canada,4*ftnote4 S.C. 1992, c. 1. that Parliament substituted a new French subsection 4(1) with the added word "relevant," a word which was already used in other provisions of the Act. Why was the substitution made? Obviously because it was felt that the English word "control" had a meaning which was not communicated properly by the French preposition "de," a preposition which is most usually used to signify the "appartenance," the belonging. Was the substituted expression "relevant de" any closer to the English "control" and any clearer? Maybe not, although it ought to be noted that the Le Nouveau Petit Robert dictionary defines the expression "relevant de," in its figurative sense, as "être du domaine de," which is clearly more indicative of a "direct connection" than the former simple preposition. But be that as it may, it remains clear to me that the phrase "records under the control of a government institution" does not simply mean "government institution's records" or "records in the possession of" or "in the hands of" a government institution, all three phrases being properly expressed by the French words used initially, "documents d'une institution fédérale."
A final and even more compelling reason to assert that the expression "under the control of" is not the equivalent of "in the possession of" or "in the hands of," can be very simply put. It seems to me that to read the Act this way could lead to absurd results, as it would fail to catch records belonging to the Government but left in the hands of an outside custodian, but it would make subject to the Act documents falling into the hands of the institution by accident or illegally (as in the case of an illegal seizure). There would be nothing in the Act to prevent such senseless consequences.
2. My second proposition is the following. The only aspect that, in the context of the Act, may validly distinguish the idea of "control" from that of "mere possession" is the character of dominion or command that may be exercised over the information contained in the record, which itself depends on the capacity in which the institution has acquired the information concerned. Let me explain this proposition.
It is evident that the distinction between "control" and "possession" in the context of the Act cannot come from the subject-matter of the record or the nature of the information contained therein. Nor can it come from the source of the information. In setting up the specific exemptions to disclosure, the Act clearly anticipates that information under the control of the government institution may be of any type and can be provided by or related to any individual. I refer here to the provisions relating to documents containing personal information or trade secrets of a third party, or information of a financial or scientific nature that is confidential, etc. It is evident also that the distinction can in no way be related to the intention of the informant, the consent of the creator of the record or the will of the individual concerned. The purpose of the Act could otherwise be completely defeated and, I repeat, the scheme itself presupposes objections and reticences by people affected.
Bearing in mind these initial observations, it would appear to me that an institution may be said to have control over some record or information, and not only to be in possession thereof, when it can consider the information or record as its own so that it can keep it or dispose of it without regard to its nature or content and notwithstanding any objection of the individual concerned. And this, in my judgment, is realized only when the records have been compiled or created by the institution in the course of executing its official duties.
This view of the scope of the Act that I suggest can certainly not be seen as betraying the goal and the purpose of the legislation. The Act, it is well known, was enacted in 1982 as part of a move toward open government. To achieve open government, to prevent the taking of governmental decisions behind closed doors, to enhance the public's knowledge of the information and options available to decision makers, to ensure citizens' access to the documentary basis of management and investigation of public problems, it is not necessary to recognize a right of access going beyond documents prepared and information gathered by a government institution in the course of executing official duties. Nor can it be seen as being inconsistent with the scheme of the Act which presupposes a large base limited by exemptions subject to strict interpretation. We are concerned here with the threshold question of the reach of the Act, not the application of its diverse exemptions. The interpretation must be fair, large, liberal and purposive, but that is what is required at the threshold stage of determining the scope of the Act. That the exemptions must give rise to a restrictive interpretation, once it is established that the Act applies, is another matter.
The view I suggest does not appear to me to be somehow inconsistent with any of the provisions of the Act. One may think otherwise on reading subsection 20(2):
20. . . .
(2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
The purpose of subsection 20(2) is to require disclosure of information relating to public health and safety. It operates by overriding the exemptions which would otherwise apply in the case of records relating to product and environmental testing. It was obviously felt that, in those cases, the public interest in disclosure was paramount although an exception to the override could be made for testing provided to third parties for a fee. The provision admittedly has meaning only if a government service may be provided for a fee and the information obtained thereby remains within the scope of the Act. But there is nothing surprising about that. The Government charges fees for many services it performs in the conduct of its official duties. The fee, the purpose of which is, of course, to help defray the cost of the service, does not have the effect of taking the government institution out of its official duties and making it function in a purely commercial capacity, or as an agent for the party benefitting from the service. The drafters would have had in mind those cases where the government institution, despite the fee, keeps acting in an official capacity.
Finally, I will note that my view does not disavow the results in the two prior decisions of the Court referred to by the Motions Judge since, in both cases, the Montana Band of Indians case as well as the Ottawa Football Club case, it was in their capacity as government institutions and in the exercise of their official duties that the Department of Indian Affairs and the Department of Fitness and Amateur Sport respectively had received the information and prepared the records in question.
On the other hand, while my interpretation of the word "control" goes against neither the policy behind the Act, nor the scheme of the Act, it is, to a certain extent, supported by the administrative understanding as set out in the Access to Information and Privacy Policies and Guidelines issued by the Treasury Board of Canada, which has ultimate authority for the administration of the Act. These Guidelines state [at page 13]:
The term "under the control of a government institution" means that an institution is authorized to grant or deny access to the record, to govern its use, and, subject to the approval of the National Archivist, to dispose of it. A record that is in the possession of or held by an institution, whether at headquarters, regional, satellite or other office, either within or outside Canada, is presumed to be under its control unless there is evidence to the contrary. A record held elsewhere on behalf of an institution is also under its control.
The definition of "control" as described in the first part of that text is quite close to the one I have adopted and, as to the second part, it is only logical that "control" so defined can be presumed if one is in "possession" since, as noted above, possession is a main attribute of control.
And finally, the view I suggest is in line with the American jurisprudence developed under the American Freedom of Information Act of 1967, 5 U.S.C. 552 (1982), a legislation adopted long before the Canadian Act but with the same philosophy and purpose. In the American legislation, "agency records" are made subject to disclosure. American courts soon recognized that the term "agency records" required precision and, to that end, introduced the concept of control. It was ultimately decided that a two-part test would be applied to determine what constitutes an "agency record" under the Act. Here is how, in Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), Mr. Justice Marshall, delivering the opinion of the United States Supreme Court, described that test, at pages 144-145:
Two requirements emerge from Kissinger and Forsham, each of which must be satisfied for requested materials to qualify as "agency records." First, an agency must "either create or obtain" the requested materials "as a prerequisite to its becoming an [cad096]agency record[cad039] within the meaning of the FOIA".
. . .
Second, the agency must be in control of the requested materials at the time the FOIA request is made. By control we mean that the materials have come into the agency's possession in the legitimate conduct of its official duties. [My emphasis.]
3. I will not have to spend much time on my third proposition, so self-evident it appears to me. In my judgment, Public Works cannot be said to be exercising "official duties" when it carries out its agreement with Canada Post. Of course, Public Works had to have formal legislative authorization to enter into such a private commercial agreement; it was clear that the bulk of the work would be performed by public employees; and Government standards, guidelines and procedure were normally to be followed. But I see nothing there that could make the execution of such a private and commercial contract an official duty. In my understanding, a department may be said to be conducting official duties only when it acts in the execution of a mandate conferred on it by Parliament or by the Governor in Council under an Act of Parliament.
My conclusion, based on the three propositions explained above, is that the records and information requested by the respondent are not subject to disclosure under the Access to Information Act. I would therefore suggest that the judgment of the Motions Judge be set aside and that the application of the appellant to reverse the decision of the Minister to disclose the records be granted.
* * *
The following are the reasons for judgment rendered in English by
Létourneau J.A.: I agree with the reasons for judgment given by Rothstein J. To these reasons, I only wish to add a few remarks.
The notion of control referred to in subsection 4(1) of the Access to Information Act5*ftnote5 S.C. 1980-81-82-83, c. 111, Sch. I "1" [now R.S.C., 1985, c. A-1]. S. 4(1) reads:
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. (the Act) is left undefined and unlimited. Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or "de jure" and "de facto" control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen's right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government.
It is, in my view, as much the duty of courts to give subsection 4(1) of the Access to Information Act a liberal and purposive construction, without reading in limiting words not found in the Act or otherwise circumventing the intention of the legislature as "[i]t is the duty of boards and courts," as Chief Justice Lamer of the Supreme Court of Canada reminded us in relation to the Canadian Human Rights Act,6*ftnote6 R.S.C., 1985, c. H-6. "to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature."7*ftnote7 University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 371. (My emphasis.) As a general rule, "[I]n reading a statute words should not be added or deleted and the reader should not try to fill the gaps he thinks he sees."8*ftnote8 E. A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983, at p. 94. It is not in the power of this Court to cut down the broad meaning of the word "control" as there is nothing in the Act which indicates that the word should not be given its broad meaning.9*ftnote9 Warburton v. Loveland (1832), 6 E.R. 806 (H.L.). On the contrary, it was Parliament's intention to give the citizen a meaningful right of access under the Act to government information. As Lord Halsbury L.C. said in Bank of England v. Vagliano Brothers:
It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction.10*ftnote10 [1891] A.C. 107 (H.L.), at p. 120.
I can find no fault with the Trial Judge's finding that Public Works Canada (PWC) had the day-to-day managerial and administrative control over the records that it created and that were in its possession and custody.
In addition, while section 2 of the Act11*ftnote11 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.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. [My emphasis.] refers to "government information" and provides, as its general purpose, the right of access to such information, it appears from a combined reading of section 4 and section 2 that the information that the government has under its control falls into the category of "government information." It also appears clearly from these two provisions that Parliament intended the Act to apply liberally and broadly with the citizen's right of access to such information being denied only in limited and specific exceptions. It is also very significant in this respect that subsection 4(1) contains a "notwithstanding clause" which gives the Act an overriding status with respect to any other Act of Parliament.
In the present instance, section 5.3 of the Comprehensive Realty Management and Services Agreement signed by the appellant and PWC on August 1984 gives the appellant a right to inspect and audit the records held by PWC and to copy and take extracts from such records:
5.2 PWC shall keep accurate books and records of account in respect of services performed for CPC under this agreement, and shall complete such statements of account for CPC as CPC may require from time to time.
5.3 CPC may, at any reasonable time and with prior notice to PWC, enter PWC's premises to inspect any books and records of PWC relating to services performed under this agreement, to inspect any other documentation relating to such service, or to perform an audit of all books and records of PWC in relation to the performance of such services. PWC shall allow CPC to copy and take extracts from such books, records, and other documentation and shall assist CPC as requested.
In my view, this lends credibility to the respondent's contention (Duquette) that those records constituted by PWC in the execution of its contract with the appellant, in fact, belong to PWC. Otherwise, why would the appellant give itself a right of access to, audit, inspection and photocopy of its own records?
Finally, I agree with the respondent Duquette and the Information Commissioner of Canada that the records under the control of PWC which were in part created and in part obtained by PWC were collected by that government institution in the performance of its official duties or functions.
As a matter of fact, by enacting, in 1985, subsection 9(3) of the Public Works Act,12*ftnote12 R.S.C., 1985, c. P-38, s. 9. S. 3 was enacted by R.S.C., 1985 (1st Supp.), c. 13, s. 1. Parliament habilitated PWC to perform services in relation to properties not belonging to Canada:
9. . . .
(3) The Minister may, with the approval of the Governor in Council, incur expenditures or perform, or have performed, services or work in relation to
(a) properties belonging to Canada of which the Minister does not have the management, charge or direction; or
(b) properties not belonging to Canada.
In doing so, Parliament obviously had in mind that this government Department could sell its services to third parties not subject to the Access to Information Act which it has just recently passed in July 1982. Parliament's awareness of the possibility that the Government could provide services to such third parties and yet remain itself governed by the Act can even be found in subsection 20(2) of the Act which, broadly stated, gives the public a right of access to the results of environmental testing carried out by the Government on behalf of a third party, unless the testing was done for a fee.
I am satisfied that PWC, as a government institution, had in its possession records which fell under its control, that the information contained in these records was obtained by PWC in the legitimate conduct of its official activities pursuant to a contract with the appellant and therefore that such information constituted government information subject to the Act.
Counsel for the appellant forcefully argued that Parliament clearly intended to exclude the appellant from the scope of the Act because the appellant was involved in commercial activities in a highly competitive environment. Therefore, it could not have wanted to bring it back within the ambit of the Act in such an indirect and counterproductive manner.
There is, indeed, a short answer to that contention. The appellant was not required to resort to the services of PWC. It could have entered into a similar agreement with any third party not subject to the Act. It chose to do business with a government institution that it knew was bound by the Act and it cannot now complain of the hardship resulting from its choice.
For these reasons as well as those given by Rothstein J., I would dismiss the appeal with costs to the respondent Duquette.
Pratte J.A.: I agree.