A-556-79
In re John G. McManus and in re Atomic Energy
Control Board (Applicants)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, January 9 and 11, 1980.
Judicial review — Application to review decision of Member
of Restrictive Trade Practices Commission requiring applicant
McManus to answer a question — Whether member erred in
law in requiring applicant to answer the question — Whether
Court has jurisdiction to review the decision — Combines
Investigation Act, R.S.C. 1970, c. C-23, s. 17(1),(2) — Atomic
Energy Control Regulations, SOR/74-334, s. 26 — Atomic
Energy Control Act, R.S.C. 1970, c. A-19, Schedule — Offi
cial Secrets Act, R.S.C. 1970, c. O-3, s. 4(1)(a) — Uranium
Information Security Regulations, SOR/77-836, s. 3(a) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to set aside a decision of a
Member of the Restrictive Trade Practices Commission requir
ing the applicant McManus, an officer of the Atomic Energy
Control Board, pursuant to section 17(1) and (2) of the Com
bines Investigation Act to answer a question put to him at a
hearing before the Commission. The applicant claimed the
Commissioner erred in law in requiring him to answer the
question on the following grounds: the Commission was not a
department or agency of the Government of Canada and
therefore section 26(a) of the Atomic Energy Control Regula
tions regarding disclosure of information did not apply; the
oath of secrecy under the Atomic Energy Control Act which he
was required to sign prevented him from answering the ques
tion; he is prohibited from answering the question by virtue of
section 4(1)(a) of the Official Secrets Act and of section 3(a)
of the Uranium Information Security Regulations. The ques
tion was raised as to whether the decision of the Commissioner
was one which the Court has the power to review under section
28 of the Federal Court Act.
Held, the application is dismissed. In view of the conclusion
reached on the merits it becomes unnecessary to decide the
jurisdictional question. A disclosure to the Commissioner is a
disclosure to the Director who is appointed pursuant to section
2 of the Combines Investigation Act. That Act is administered
by the Minister of Consumer and Corporate Affairs and that
Department is a Department of the Government of Canada
pursuant to the Financial Administration Act. A person provid
ing information to a Commissioner is therefore providing infor
mation to a department or agency of the Government of
Canada as those terms are used in section 26(a) of the Atomic
Energy Control Regulations. The Commissioner and Director
and the Restrictive Trade Practices Commission are persons
"legally entitled" to all relevant information and the applicant
would not be breaching the oath of secrecy required under the
Atomic Energy Control Act. Section 17 of the Combines
Investigation Act requires the applicant to answer the question
and since he is "authorized to communicate" the information
he is not contravening the provisions of section 4(1)(a) of the
Official Secrets Act. The provisions of the Uranium Informa
tion Security Regulations do not apply because he is in the
category of individuals covered by the excepting provisions of
section 3(a)(i).
APPLICATION for judicial review.
COUNSEL:
T. A. McDougall, Q.C. and J. P. Manley for
applicants.
J. W. Brown, Q.C. and C. S. Goldman for
Director of Investigation and Research,
Department of Consumer and Corporate
Affairs.
E. A. Bowie for Attorney General of Canada.
M. S. F. Watson for Rio Algom Limited.
E. Binavince for Uranium Canada Limited.
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for applicants.
Box 25, Commerce Court West, Toronto, for
Director of Investigation and Research,
Department of Consumer and Corporate
Affairs.
Deputy Attorney General of Canada for
Attorney General of Canada.
Fasken & Calvin, Toronto, for Rio Algom
Limited.
Gowling & Henderson, Ottawa, for Uranium
Canada Limited.
The following are the reasons for. judgment of
the Court rendered in English by
HEALD J.: This is a section 28 application to set
aside a decision of the Restrictive Trade Practices
Commission dated September 12, 1979 by which
the applicant McManus was ordered to answer a
certain question put to him by counsel for the
Director of Investigation and Research in the
course of a hearing before the said Commission.
The applicant McManus is the Director of Plan
ning and Administration of the applicant the
Atomic Energy Control Board (AECB). An inqui
ry into the marketing of Canadian uranium (here-
inafter the "Uranium Inquiry") was commenced
on September 30, 1977 by direction of the Minis
ter of Consumer and Corporate Affairs pursuant
to the provisions of section 8(c) of the Combines
Investigation Act, R.S.C. 1970, c. C-23 as amend
ed. Upon an application by the Director of Investi
gation and Research, Combines Investigation Act
(hereinafter the "Director"), an order was issued
by the Restrictive Trade Practices Commission
dated June 27, 1979 pursuant to section 17 of the
Combines Investigation Act ° requiring the appli
cant McManus to appear before a member of the
Commission to give evidence upon oath in connec
tion with the Uranium Inquiry. The applicant
McManus appeared before R. C. McLellan, Q.C.
a member of the Restrictive Trade Practices Com
mission and was sworn and answered some ques
tions. However he refused to answer the following
question on the advice of counsel:
Did you attend a meeting of the Atomic Energy Advisory Panel
on February 28, 1972, at which time consideration was given to
the policy to be applied by the Atomic Energy Control Board
and others with respect to the marketing of uranium produced
in Canada?
Counsel for the Director sought a ruling that the
applicant McManus was required to answer that
question. After hearing argument of counsel, Com
missioner McLellan reserved his decision on the
matter. On September 12, 1979, in extensive and
carefully considered reasons, he ruled that the
applicant McManus was obliged to answer the
question above set out. It is that decision by Com
missioner McLellan which is the subject of this
section 28 application.
' Section 17(1) and (2) of the Combines Investigation Act
reads as follows:
17. (1) On ex parte application of the Director, or on his
own motion, a member of the Commission may order that
any person resident or present in Canada be examined upon
oath before, or make production of books, papers, records or
other documents to such member or before or to any other
person named for the purpose by the order of such member
and may make such orders as seem to him to be proper for
securing the attendance of such witness and his examination,
and the production by him of books, papers, records or other
documents and may otherwise exercise, for the enforcement
of such orders or punishment for disobedience thereof, all
powers that are exercised by any superior court in Canada
for the enforcement of subpoenas to witnesses or punishment
of disobedience thereof.
(2) Any person summoned under subsection (1) is com
petent and may be compelled to give evidence as a witness.
Before the hearing of the section 28 application
the Court asked the Registry to advise all counsel
interested in this application that the Court would
wish to hear them, at the outset, on the question as
to whether the decision by Commissioner McLel-
lan is one which this Court has the power to review
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10. At the hearing before us,
counsel did argue the jurisdictional question exten
sively and very ably. At the conclusion of that
argument, the Court reserved its decision on the
question of jurisdiction and heard the application
on the merits. In view of the conclusion which we
have reached on the merits, it becomes unneces
sary to decide the jurisdictional question. Assum
ing jurisdiction but without so deciding this dif
ficult question 2 the Court has reached the
conclusion that this section 28 application should
be dismissed.
Counsel for the applicants cited four different
statutory and regulatory provisions in support of
his submission that Commissioner McLellan was
in error in deciding that the applicant McManus
was obliged to answer the question set out above
which was asked of him by counsel for the
Director.
The first provision relied on is section 26 of the
Atomic Energy Control Regulations (SOR/74-
334). Section 26 reads as follows:
Disclosure of Information by the Board
26. No information that has been obtained by the Board by
virtue of these Regulations with respect to any business shall be
disclosed without the consent of the person carrying on such
business, except
(a) to any department or agency of the Government of
Canada or of a province or to a person authorized in writing
by such department or agency to require such information
for the purposes of discharging the function of that depart
ment or agency;
(b) for the purpose of any prosecution of an offence under
the Act or these Regulations; or
(c) for the purpose of any obligation under any international
treaty or arrangement for the control of atomic energy to
which Canada is a party.
2 On the argument before us of the jurisdictional question,
counsel for the applicants, counsel for the Director of Investiga
tion and Research (Department of Consumer and Corporate
Affairs), counsel for the Attorney General of Canada and
counsel for Rio Algom Limited all made submissions in support
of the Court's jurisdiction. The only counsel who submitted
that the Court was without jurisdiction to hear the application
was the counsel for Uranium Canada Limited.
The paragraph of section 26 applicable herein is
paragraph (a). In our view, section 26 of the
Regulations does not entitle the applicant McMa-
nus to refuse to answer because the excepting
provisions of paragraph (a) apply to the factual
situation in this case. A disclosure to Commission
er McLellan under section 17 of the Act is a
disclosure to the Director who in conducting this
Inquiry is acting in discharge of the statutory
functions assigned to him. We agree with Commis
sioner McLellan that his order to the applicant
McManus to attend for examination before him
was in furtherance of the discharge of that statu
tory function and that the excepting provisions of
section 26(a) of the Regulations supra apply to
authorize the applicant McManus to disclose to
the Inquiry all information in his possession which
is relevant to the Inquiry. Applicants' counsel sub
mitted that the Director was not a department or
agency and that, therefore, section 26(a) did not
apply. We do not agree with this submission. The
Director, pursuant to section 2 of the Combines
Investigation Act, is appointed under the provi
sions of that Act. That Act is administered by the
Minister of Consumer and Corporate Affairs. The
Department of Consumer and Corporate Affairs
is, pursuant to the Financial Administration Act,
R.S.C. 1970, c. F-10, and Schedule A thereto, a
Department of the Government of Canada. Com
missioner McLellan is a member of the Restrictive
Trade Practices Commission, appointed by the
Governor in Council pursuant to section 16(1) of
the Combines Investigation Act. We are accord
ingly satisfied that when the applicant McManus
provides information to Commissioner McLellan,
he is providing information to a department or
agency of the Government of Canada as those
terms are used in section 26(a) of the Regulations
supra. As stated by counsel, to interpret section
26(a) in the restrictive fashion suggested by coun
sel for the applicants would be repugnant to the
specific provisions of section 17 (supra) and sec
tion 21 of the Combines Investigation Act 3 and
since the Regulation in question is subordinate
legislation, it should not be construed so as to
3 Section 21 of the Combines Investigation Act reads as
follows:
21. The Commission or any member thereof has all the
powers of a commissioner appointed under Part I of the
Inquiries Act.
abrogate a law of general application such as the
Combines Investigation Act.
Applicants' second submission was that the
"Oath of Fidelity and Secrecy" which the appli
cant McManus was required to sign as an officer
of the Atomic Energy Control Board prevented
him from answering the question put to him. The
oath taken by the applicant McManus is set out in
the Schedule to the Atomic Energy Control Act,
R.S.C. 1970, c. A-19, and the relevant portion
thereof reads as follows,
I further solemnly swear that I will not communicate or
allow to be communicated to any person not legally entitled
thereto any information relating to the affairs of the Board, nor
will I allow any such person to inspect or have access to any
books or documents belonging to or in the possession of the
Board and relating to its business.
We agree with Commissioner McLellan that the
Director in this Inquiry, and a member of the
Restrictive Trade Practices Commission before
whom the applicant McManus was ordered to
attend for examination under the compulsion of
section 17 of the Combines Investigation Act are
persons "legally entitled" to all relevant informa
tion in the possession of Mr. McManus and that
accordingly he would not be breaching that oath in
providing that information to Commissioner
McLellan.
The applicants' third submission was that the
applicant McManus is prohibited from answering
the question put to him by virtue of the provisions
of section 4(1)(a) of the Official Secrets Act,
R.S.C. 1970, c. O-3.
The relevant portion of that section reads as
follows:
4. (1) Every person is guilty of an offence ... who ...
(a) communicates the code word, pass word, sketch, plan,
model, article, note, document or information to any person,
other than a person to whom he is authorized to communi
cate with, or a person to whom it is in the interest of the
State his duty to communicate it;
We agree with counsel for the Attorney General
of Canada that since section 17 of the Combines
Investigation Act requires the applicant McManus
to answer the question, he is surely "authorized to
communicate" the information to Commissioner
McLellan whom the statute authorizes to compel
his testimony. For these reasons we are not pre
pared to accept this submission.
The fourth and final submission of counsel for
the applicants was that the applicant McManus
was prohibited from answering the question put to
him by virtue of the provisions of section 3(a) of
the Uranium Information Security Regulations
(SOR/77-836).
Said section 3(a) reads as follows:
Security of Information
3. No person who has in his possession or under his control
any note, document or other written or printed material in any
way related to conversations, discussions or meetings that took
place between January 1, 1972 and December 31, 1975 involv
ing that person or any other person in relation to the exporting
from Canada or marketing for use outside Canada of uranium
or its derivatives or compounds shall
(a) release any such note, document or material or disclose
or communicate the contents thereof to any person, foreign
government or branch or agency thereof or to any foreign
tribunal unless
(i) he is required to do so by or under a law of Canada, or
(ii) he does so with the consent of the Minister of Energy,
Mines and Resources; or
We do not agree with this submission because,
in our view, the excepting provision of section
3(a)(i) applies to the facts of this case. Since
section 17 of the Combines Investigation Act
requires the applicant McManus to testify and to
produce relevant documents, he is in the category
of individuals covered by section 3(a)(i) and thus
the Uranium Information Security Regulations do
not apply.
For all of the foregoing reasons, we have con
cluded that Commissioner McLellan was correct
in ruling that the applicant McManus is obliged to
answer the question asked of him by counsel for
the Director.
For these reasons, we would dismiss the section
28 application.
• * *
URGE J.: I agree.
* * *
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.