3430901 Canada Inc. et al. v. Canada (Minister of Industry), (2001) 282 N.R. 284 (FCA)

• Judge: Strayer, Décary and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 29, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 282 N.R. 284 (FCA);2001 FCA 254

3430901 Can. Inc. v. Can. (2001), 282 N.R. 284 (FCA)

MLB headnote and full text

Temp. Cite: [2001] N.R. TBEd. SE.010

The Information Commissioner of Canada (appellant) v. The Minister of Industry Canada (respondent)

3430901 Canada Inc. and Telezone Inc. (appellants) v. The Minister of Industry Canada (respondent)

(A-824-99; A-832-99; 2001 FCA 254)

Indexed As: 3430901 Canada Inc. et al. v. Canada (Minister of Industry)

Federal Court of Appeal

Strayer, Décary and Evans, JJ.A.

August 29, 2001.

Summary:

Telezone unsuccessfully applied for a personal communications services licence. Telezone applied under the Access to Infor­mation Act to compel the Minister of Indus­try to disclose documents relating to the decision. The Minister refused access. Tele­zone complained to the Information Com­missioner who recommended disclosure. The Minister refused complete disclosure. Tele­zone applied for judicial review. The Infor­mation Commissioner also applied for judi­cial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 177 F.T.R. 161, dismissed the applications. Telezone and the Information Commissioner appealed.

The Federal Court of Appeal dismissed both appeals.

Crown - Topic 7202

Examination of public documents - Free­dom of information - Bars - Interpretation - The Federal Court of Appeal referred to the principles applicable to the interpreta­tion of the Access to Information Act - See paragraphs 23 to 27.

Crown - Topic 7208

Examination of public documents - Free­dom of information - Bars - Advice by public servants - The Minister of Industry invited applications for personal communi­cations services licences - A working group evaluated the 17 applications and reported to the selection committee - The selection committee ranked the applications according to selection criteria and made recommendations to the Minister - The Minister awarded licences - An unsuccess­ful applicant and the Information Commis­sioner requested disclosure of material respecting the deliberations of the working group, the selection committee and the Minister - The Minister refused disclosure pursuant to s. 21(1)(a) or (b) of the Access to Information Act - The Federal Court of Appeal affirmed that the undisclosed material was statutorily exempt because it constituted advice, recommendations or accounts of deliberations by Ministry officials and the Minister had a discretion to refuse to disclose exempt material - See paragraphs 48 to 76.

Crown - Topic 7211

Examination of public documents - Free­dom of information - Bars - Consultations or deliberations by government officials - [See Crown - Topic 7208 ].

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review - Standard of review - An unsuccessful applicant for a personal communications services licence sought disclosure of infor­mation from the Minister of Industry - The Information Commissioner recommended disclosure - The Minister declined to dis­close several documents - The applicant and the Information Commissioner sought judicial review - The applications judge reviewed on a standard of correctness and held that the Minister lawfully exercised his discretion not to disclose the excluded records - The Federal Court of Appeal held that correctness was the appropriate stan­dard of review of whether the requested record fell within an exemption - The lawfulness of the exercise of the discretion to refuse to disclose an exempted record was on the grounds normally available in administrative law for the review of ad­ministrative decisions, including unreason­ableness - See paragraphs 28 to 47.

Crown - Topic 7283

Examination of public documents - Free­dom of information - Practice - Evidence and proof - An unsuccessful applicant for a personal communications services licence sought disclosure of information from the Minister of Industry - The Information Commissioner recommended disclosure - The Minister declined to disclose several documents on the ground they contained advice and recommendations - The appli­cant and the Information Commissioner sought judicial review - The Federal Court of Appeal held that the burden of proving that the Minister unlawfully exercised the discretion to refuse to disclose the records, was on the person requesting disclosure - See paragraphs 77 to 99.

Crown - Topic 7283

Examination of public documents - Free­dom of information - Practice - Evidence and proof - An unsuccessful applicant for a personal communications services licence sought disclosure of information from the Minister of Industry - The Information Commissioner recommended disclosure - The Minister declined to disclose several documents on the basis that they were exempt because they constituted advice, recommendations or accounts of deliber­ations by Ministry officials - The applicant and the Information Commissioner sought judicial review of the Minister's discretion­ary refusal to disclose - The Federal Court of Appeal held that the reasons for the Minister's exercise of discretion to refuse consisted of the letters by department officials to the applicant and to the Com­missioner and internal departmental mem­oranda relating to the requests - The court concluded that adequate reasons had been given for the refusal to disclose the exempt documents and the Minister's discretion was exercised lawfully - See paragraphs 100 to 117.

Cases Noticed:

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 25].

Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; 179 N.R. 350 (F.C.A.), refd to. [para. 26].

Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; 221 N.R. 145 (F.C.A.), refd to. [para. 27].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 28].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 28].

Asbestos Corp., Société Nationale de l'A­miante and Quebec (Province), Re (2001), 269 N.R. 311; 199 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 29].

Committee for Equal Treatment of Asbes­tos Minority Shareholders v. Ontario (Securities Commission) - see Asbestos Corp., Société Nationale de l'Amiante and Quebec (Province), Re.

Minister of National Revenue v. Mattel Canada Inc. (2001), 270 N.R. 153; 199 D.L.R.(4th) 598 (S.C.C.), refd to. [para. 29].

Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245; 168 F.T.R. 49; 99 D.T.C. 5337 (T.D.), refd to. [para. 30].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1, refd to. [para. 32].

Doe v. Information and Privacy Commis­sioner (Ont.) (1993), 64 O.A.C. 248; 106 D.L.R.(4th) 140 (Div. Ct.), refd to. [para. 40].

Ontario (Attorney General) v. Information and Privacy Commissioner (Ont.) et al. (1997), 101 O.A.C. 140; 34 O.R.(3d) 611 (C.A.), refd to. [para. 40].

Walmsley v. Ontario (Attorney General) - see Ontario (Attorney General) v. Infor­mation and Privacy Commissioner (Ont.) et al.

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147; 6 Admin. L.R.(2d) 54 (T.D.), affd. (1993), 154 N.R. 319; 13 Admin. L.R.(2d) 304 (F.C.A.), refd to. [paras. 43, 81].

Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298, refd to. [para. 46].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 69].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 81].

Ruby v. Royal Canadian Mounted Police, [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), refd to. [para. 92].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police.

Information Commissioner (Can.) v. Mc­Intyre (2001), 274 N.R. 341 (F.C.A.), refd to. [para. 117].

Canada (Minister of Industry) v. Canada (Information Commissioner) and McIn­tyre - see Information Commissioner (Can.) v. McIntyre.

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 2(1), sect. 4(1), sect. 21(1)(a), sect. 21(2), sect. 25, sect. 41, sect. 42(1), sect. 48, sect. 49 [para. 19].

Radiocommunication Act, R.S.C. 1985, c. R-2, sect. 5(1)(a)(i.1) [para. 19].

Counsel:

Lawrence Elliott, for the appellants, 3430901 Canada Inc. and Telezone Inc.;

Michael Phelan and Daniel Brunet, for the appellant, the Information Commissioner of Canada;

Christopher Rupar, for the respondent.

Solicitors of Record:

Borden Ladner Gervais LLP, Ottawa, Ontario, for the appellants, 3430901 Canada Inc. and Telezone Inc.;

Office of the Information Commissioner, Ottawa, Ontario, for the Information Commissioner of Canada;

Moris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

These appeals were heard on May 29, 2001, at Ottawa, Ontario, before Strayer, Décary and Evans, JJ.A., of the Federal Court of Appeal. On August 29, 2001, Evans, J.A., delivered the following judg­ment for the court.