T-2176-89
X (Applicant)
v.
Minister of National Defence (Respondent)
INDEXED AS: X V. CANADA (MINISTER OF NATIONAL
DEFENCE) (T.D.)
Trial Division, Strayer J.—Ottawa, November 19
and 28, 1990.
Access to information — Application for determination
failure to give access to requested records within 30 days
refusal of access — Information provided outside initial
30-day period allowed under Access to Information Act, but
within extended period — Application dismissed — S. 41
inapplicable as neither refusal of access, nor deemed refusal
under s. 10(3) — Refusal of access condition precedent to
application of ss. 49, 50 — Disclosure only remedy under
ss. 49, 50.
Federal Court jurisdiction — Trial Division — Application
for determination failure to give access to requested records
within 30 days refusal of access under Access to Information
Act — Information provided outside initial 30-day period
allowed under Act, but within extended period — Ss. 49, 50
authorizing Court to order disclosure or to make "such other
order as the Court deems appropriate" — No jurisdiction
unless genuine and continuing refusal to disclose — Meaning
of phrase "such other order".
This was an application for a determination that the failure
to give the applicant access to requested records within thirty
days was a "refusal" to give access. The Department of Nation
al Defence had advised the applicant that it required an
extension of time beyond the 30 days normally allowed under
the Access to Information Act to respond. The information was
provided after expiry of the original 30-day period, but prior to
the expiry of the extended time period. The applicant argued
that the extension was unnecessary. The respondent submitted
that the Court lacked jurisdiction to hear the application under
section 41 (which gives any person who has been refused access
to a record a right to apply to the Court to review the matter)
because the applicant had been given the information. The
respondent also submitted that there was no remedy available
in the absence of an actual refusal of access. Sections 49 and 50
authorize the Court to order disclosure or to make "such other
order as the Court deems appropriate" where a department
head has refused to disclose a record. The respondent submitted
that "such other order" is limited to matters connected with
disclosure since the Court's jurisdiction is predicated upon a
refusal to disclose. The issue was whether the Court had a
mandate to review the decision to extend the time limit for
responding to a request for access to a record.
Held, the application should be dismissed.
The application was frivolous and vexatious. The Court can
entertain an application by a private party only under section
41, and then only when access has been refused. There had
been neither refusal of access nor deemed refusal of access.
Subsection 9(1) indicates that an extension of time for response
is not refusal of access, although it could lead to a "deemed
refusal" under subsection 10(3) where access is not granted
within the time limits set out in the Act. Access was given
within the extended time limits.
No remedy could be granted under section 49 or 50. Refusal
of access is a condition precedent to an application under
sections 49 and 50. Reference in those sections to "such other
order as the Court deems appropriate" only authorizes the
Court to modify the form of the remedy to achieve disclosure or
perhaps to declare that disclosure should have been made where
the record no longer exists. In the absence of a genuine claim
for refusal of access which is still continuing at the time of
hearing, the Court has no jurisdiction.
Not every decision under the Act is subject to judicial review.
There may be other remedies available, i.e. the Information
Commissioner may investigate complaints that the institution
head has extended unreasonably the time limit for response and
either prepare a special report to Parliament or identify defici
encies in a general report.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 7,
9(1)(b), 10(3), 30(1)(c), 41, 49, 51.
CASES JUDICIALLY CONSIDERED
APPLIED:
X v. Canada (Minister of National Defence), T-1112-89,
F.C.T.D., Dubé J., judgment dated 15/6/90, not reported.
NOT FOLLOWED:
Canada (Information Commissioner) v. Canada (Minis-
ter of External Affairs), [1990] 3 F.C. 514 (T.D.).
APPEARANCE:
Mr. X on his own behalf.
COUNSEL:
Meg Kinnear for respondent.
APPLICANT ON HIS OWN BEHALF:
Mr. X.
SOLICITOR:
Deputy Attorney General of Canada, Ottawa,
for respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
The applicant seeks some kind of determination
by the Court that the respondent's failure to give
access within thirty days to records requested by
the applicant on March 23, 1989 amounted to a
"refusal" to give access.
Facts
On March 23, 1989 the applicant submitted an
access to information request to the Department of
National Defence seeking records containing fur
ther information relevant to certain references in a
memorandum of March 5, 1985 which he had
obtained from the U.S. National Security Agency.
On April 21, 1989 the Department of National
Defence advised the applicant that it was neces
sary to consult outside of the Department and
therefore an extension of 270 days beyond the
normal 30 days statutory time limit for reply was
required, such extension being fixed in accordance
with paragraph 9(1)(b) of the Access to Informa
tion Act.' It will be noted that section 7 of the Act
requires the head of an institution to which a
request for access to information is directed to
respond to the person making the request within
30 days, either to advise him that the request will
not be granted or to grant the request and make
the record available. This section is, however sub
ject to subsection 9(1) which provides in part:
R.S.C., 1985, c. A-1.
9. (1) The head of a government institution may extend the
time limit set out in section 7 or subsection 8(1) in respect of a
request under this Act for a reasonable period of time, having
regard to the circumstances, if
(b) consultations are necessary to comply with the request
that cannot reasonably be completed within the original time
limit....
by giving notice of the extension and, in the circumstances set
out in paragraph (a) or (b), the length of the extension, to the
person who made, the request within thirty days after the
request is received, which notice shall contain a statement that
the person has a right to make a complaint to the Information
Commissioner about the extension.
A letter dated August 4, 1989 was sent by the
respondent's department to the applicant providing
him with copies of the records requested by him. It
will be noted that this material was sent to him
some 99 days after the original 30-day period had
expired, but 171 days prior to the expiry of the
extended time period fixed by the respondent
under subsection 9(1). The evidence indicates that
the record proved not to be very extensive and
that, while consultations were held with the Na
tional Security Agency of the United States and
with the Department of Justice of Canada, nothing
like the 270 additional days reserved for itself by
the Department of National Defence was actually
required.
The applicant asserts that in fact his request
could have been responded tô within 30 days and
that both the failure to produce the record within
30 days and the extension of time to 270 days
amounted to a refusal of access. He made a com
plaint to the Information Commissioner on August
11, 1989, after receiving the records he sought.
The Commissioner investigated the complaint and
determined that the 270 days extension was not
justified. But the applicant says he is also entitled
to bring an application in this Court for a determi
nation that there was a refusal of access, even
though he has long since had the information
which he requested. He asserts, inter alla, that the
delays in production of the material and the un
necessary 270 days extension were the result more
of staff shortages in the relevant unit in the
Department of National Defence than of the
intrinsic difficulty of his request. His evidence on
this point is mostly hearsay and inconclusive.
The respondent primarily contends that this
Court has no jurisdiction to hear this application
nor to grant the kind of remedy being sought. He
also denies that there was any unnecessary delay
or that the extension of time was unreasonable.
In support of the Minister's position, his counsel
cited, inter alia, section 41 of the Access to Infor
mation Act under which the applicant purports to
bring this application. This section provides:
41. Any person who has been refused access to a record
requested under this Act or a part thereof may, if a complaint
has been made to the Information Commissioner in respect of
the refusal, apply to the Court for a review of the matter within
forty-five days after the time the results of an investigation of
the complaint by the Information Commissioner are reported to
the complainant under subsection 37(2) or within such further
time as the Court may, either before or after the expiration of
those forty-five days, fix or allow. [Emphasis added.]
The respondent contends that the only role of the
Court under the Act is to hear applications by
persons who have actually been refused access to a
record, and this applicant has not been refused
access. In fact he received the material requested
over two months before this notice of motion was
filed. It is true that subsection 10(3) of the Act
provides:
10. ...
(3) Where the head of a government institution fails to give
access to a record requested under this Act or a part thereof
within the time limits set out in this Act, the head of the
institution shall, for the purposes of this Act, be deemed to have
refused to give access.
But there was no allegation in the present case
that the respondent had failed to give access within
the times permitted by the Act. That is, subsection
9(1) quoted above specifically allows a department
head to extend the time for reply on certain speci
fied grounds, provided that the applicant is noti
fied and advised that he has a right to make a
complaint to the Information Commissioner con
cerning that extension of time. Thus there was
neither refusal of access nor deemed refusal of
access, because access was given before even half
of the extended time period had expired.
The respondent also contends that there is no
remedy which the Court can give in the absence of
an actual refusal of access. Sections 49, 50, and 51
authorize the Court to make certain orders. Sec
tions 49 and 50 deal with situations where a
department head has refused to disclose a record.
They provide as follows:
49. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of a provision of this Act not referred to in section 50,
the Court shall, if it determines that the head of the institution
is not authorized to refuse to disclose the record or part thereof,
order the head of the institution to disclose the record or part
thereof, subject to such conditions as the Court deems appro
priate, to the person who requested access to the record, or shall
make such other order as the Court deems appropriate.
50. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or
18(d), the Court shall, if it determines that the head of the
institution did not have reasonable grounds on which to refuse
to disclose the record or part thereof, order the head of the
institution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who
requested access to the record, or shall make such other order
as the Court deems appropriate.
It will be noted that these sections both require the
Court to order the head of the institution to dis
close the record to the person requesting it "or ...
make such other order as the Court deems appro
priate". The respondent contends that "such other
order" as referred to in these sections must be
understood to be limited to matters connected with
the disclosure of a record since the jurisdiction of
the Court under each of these sections is predicat
ed on there having been a refusal to disclose a
record. Therefore, it is said, the broad terminology
of "such other order" cannot be taken to support
broad declarations of right or wrong which pass
judgment on the conduct of the head of an institu
tion, where in fact there has been no refusal of
disclosure.
Apart from these legal issues, the respondent
asserts that his response to the request of the
applicant for access was appropriate in the circum
stances and that a response by August 4 to a
request of March 23 was reasonable, considering
that the security agency of a foreign government
had to be consulted.
Conclusions
I have concluded that this application is frivol
ous and vexatious. The essential legal issue is as to
whether this Court has a mandate to review the
decision by the head of an institution under sub
section 9(1) to extend the time limit for respond
ing to a request for access to a record. It is true
that subsection 9(1) as quoted above says that the
head of the institution may only extend the time
limit "for a reasonable period of time" and only on
certain specified grounds such as that consulta
tions are necessary. This means that the head is
constrained in certain ways in the exercise of his
discretion. But that does not mean that the Federal
Court has the responsibility of second-guessing the
department head on such matters as whether a
delay beyond 30 days, as in this case, was "reason-
able". The Court has power to entertain an
application by a private party in support of access
only under section 41, and under that section only
by a "person who has been refused access to a
record". It is clear by subsection 9(1) that an
extension of time for response by the head of an
institution is not a refusal of access. It is obviously
not on its face a refusal to disclose. It only leads to
a "deemed refusal" under subsection 10(3) if no
decision is taken within the extended time period
and no disclosure is made.
It is amply clear from looking at the Act as a
whole that not every decision taken thereunder by
heads of institutions is subject to judicial review.
This is readily understandable when one considers
that prior to this statute there was no common law
or statutory right of access to records held by the
Government of Canada and no right of action in
respect thereto. How government institutions
responded to requests by citizens for information
was typically a matter for political judgment only
and the sanctions, if any, for refusal to disclose
were essentially political. Into this situation the
Access to Information Act was introduced, relying
in large measure on (1) a statutory codification of
rules for the guidance of officials as to what
records should or should not be disclosed; (2)
overall administrative supervision of all govern
ment institutions in this respect by a "designated
Minister", referred to in section 70, who is to keep
under review the manner in which "records" are
maintained in the government and to prescribe for
all institutions certain procedures for compliance
with the Act; (3) an independent ombudsman-type
officer, the Information Commissioner, who can
receive complaints under the Act or indeed initiate
such complaints, and can carry out investigations
which can then be followed by discussions with
departments with a view to resolving the problem
without further difficulties; (4) reports to Parlia
ment and designated committees of both Houses
by the Information Commissioner under sections
38 and 39 and by heads of each institution under
section 72; and (5) a right to seek judicial review
in cases of actual or deemed refusal of access for
the purpose of obtaining that access. It will be seen
from this that a large measure of administrative
and political control has been provided to try to
ensure the proper administration of the Act, as
well as a new right of action in specified circum
stances. Among other matters of which complaint
may be made to the Information Commissioner, a
person requesting access may pursuant to para
graph 30(1)(c) complain that the institution head
has extended unreasonably the time limit for
response. Such a complaint can be pursued by the
Information Commissioner and can be the subject
of a special report to Parliament or be referred to
in a general report. The Information Commission
er can also through such processes identify and
report on patterns of conduct or systemic deficien
cies, where similar complaints are frequently made
about the same institution or about access to the
same type of information.
This history and framework confirms the some
what narrow scope of the new powers specifically
given to the Federal Court: under section 41, it can
hear the application of a person (or, under section
42, of the Information Commissioner) where there
has been actual or deemed refusal of access to a
record; and under section 44 it can hear the
application of a "third party" who objects to dis
closure by the head of an institution of a record
which may affect that third party. The applicant
here does not come within section 41, the only
section relevant to the present situation and the
one on which he relies, because he has not been
refused access: access was delayed but in fact has
long since been given to him and within the time
limits permitted by the statute. That being the
case there can be no remedy granted under sec
tions 49 or 50, the sections authorizing appropriate
orders by the Court, because those remedial
powers arise only where the Court finds a refusal
to disclose a record. I am satisfied that where
those sections authorize "such other order as the
Court deems appropriate" such orders must be
directly pertinent to providing access or its equiva
lent where there is first a finding that access has
been refused. Refusal of access is a condition
precedent to an application under those sections
and the only matter to be remedied by the Court
where it finds for the applicant. The reference to
"such other order", in my view, only authorizes
the Court to modify the form of the remedy to
achieve disclosure in some form or perhaps to
declare that disclosure should have been made
where the record no longer exists.
1 was referred to two recent decisions of my
colleagues, Dubé and Muldoon JJ. which appear
to me somewhat divergent. In X v. Canada (Min-
ister of National Defence) 2 the present applicant
had brought a motion under section 41 in respect
of material he had requested from the Department
of National Defence on August 12, 1988. The
Department extended the reply time by ninety
days and then failed to make disclosure until two
2 T-1112-89, June 15, 1990, not reported.
months after the expiry of that extended period.
The applicant requested the Court to require the
Minister of National Defence to provide a detailed
explanation as to why he had failed to respond in
time and a "judgment" that the Minister was
"deemed to have refused to give access to records
by reason of subsection 10(3) of the Access to
Information Act". Dubé J., while making it clear
that he did not condone these delays, held that he
could not award any "judgment" to Mr. X because
there was no actual refusal to disclose. Although
there would have been a "deemed refusal" because
disclosure had not been made before the expiry of
the extended time, the material had since been
provided to the applicant long before the hearing
of the motion. That is, the only remedy the Court
can give is to order disclosure and such an order is
not available if disclosure has already taken place.
In Canada (Information Commissioner) v.
Canada (Minister of External Affairs), 3 however,
where the facts were somewhat similar in that a
time extension had been fixed by the Department
of External Affairs and disclosure was not made
within that time but was made prior to the hearing
of the motion, Muldoon J. proceeded to accept
jurisdiction to make a series of declarations as to
the shortcomings of the respondent department in
its administration of the Act. He reviewed the
exercise of discretion under section 9 of the Act,
holding that a 120-day time extension was not
justified under subsection 9(1). He further found
the Department to have acted unreasonably in the
pace at which it processed the request. He found
that the 120-days' extension amounted to a
deemed refusal to disclose. He apparently based
his jurisdiction to make such declarations on the
closing words of section 49 that "the Court .. .
shall make such other order as the Court deems
appropriate".
3 [1990] 3 F.C. 514 (T.D.).
It will be apparent from what I have already
indicated that I respectfully agree with the
approach taken by Dubé J., that in the absence of
a genuine claim for refusal of access, a refusal
which is still continuing at the time of hearing in
this Court, the Court has no jurisdiction in the
matter. Further, unless there is a genuine and
continuing refusal to disclose and thus an occasion
for making an order for disclosure or its equiva
lent, no remedy can be granted by this Court. In
my respectful view it is not the role of the Court to
immerse itself in the reasonability of the conduct
of the internal affairs of a government department
in matters of access to information, except where a
genuine and continuing refusal or deemed refusal
of access can be demonstrated. Other remedies
exist under the Act for enhancing political and
administrative control over any deficiencies, if
such they be.
As I indicated earlier, I regard this application
as frivolous and vexatious because its futility
should have been amply evident to the applicant.
Having already failed in a previous application
against the same respondent 4 to obtain any order
from the Court even in a stronger case (a situation
where access had only been granted after the
expiration of the extended time) I cannot imagine
how the applicant could reasonably believe that he
could come back and obtain an order in a case
where there had been no failure to disclose during
the extended period. While Dubé J. granted the
applicant costs in the earlier motion, which was
one of first impression and where there had been a
"deemed refusal" to grant access at least for a
short period, there are no such extenuating cir
cumstances in this case. The applicant has
unnecessarily occupied the time and resources of
the Court and of the respondent. Costs are award
ed against him which I shall fix in the amount of
$200, the respondent having requested the Court
to fix an amount if he should be awarded costs.
4 Supra, note 2.
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.