Canada (Attorney General) et al. v. Information Commissioner (Can.) et al., (1997) 135 F.T.R. 254 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: October 24, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1997), 135 F.T.R. 254 (TD)

Can. (A.G.) v. Information Commr. (1997), 135 F.T.R. 254 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. SE.042

In The Matter Of an investigation conducted by the Information Commissioner of Canada (the "Commissioner") purportedly pursuant to sections 32 to 37, inclusive of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"), with respect to a complaint made by Michel Drapeau purportedly pursuant to paragraph 30(1)(f) of the Act against Bonnie Petzinger and thereby against the Department of National Defence.

In The Matter Of a report of findings and recommendation (the "report") dated August 16, 1996, issued by the Commissioner purportedly pursuant to section 37 of the Act and received by the Deputy Minister of National Defence on August 18, 1996.

In The Matter Of an application pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended for the following relief: a) a declaration against Michel Drapeau; b) a certiorari to set aside and quash the report; c) a prohibition and/or, in the alternative, an injunction to enjoin the Commissioner from proceeding further with his report, to deliver same or communicate the contents thereof to the public including to Michel Drapeau; d) pursuant to section 18.2 and paragraph 50(1)(b) of the Federal Court Act a stay of the proceedings of the Commissioner pending the outcome of the within proceedings; e) in the event the Commissioner has already communicated the contents of his report and recommendation, an injunction as against Michel Drapeau from making any use of the contents of the said report, to directly or indirectly communicate or disseminate its contents and/or to comment on said contents in any manner, form or forum.

The Attorney General of Canada and Bonnie Petzinger (applicants) v. The Information Commissioner of Canada and Michel Drapeau (respondents)

(T-1928-96)

Indexed As: Canada (Attorney General) et al. v. Information Commissioner (Can.) et al.

Federal Court of Canada

Trial Division

MacKay, J.

September 8, 1997.

Summary:

Drapeau filed a complaint under the Access to Information Act, alleging conflict of interest against the Department of National Defence and Petzinger, the Department's Access to Information and Privacy Coordinator. The Information Commissioner investigated the complaint and prepared a report. The report concluded that the complaint was, in part, well-founded, and recommended that, for a period of time, Petzinger have no involvement in decisionmaking respecting administration of Drapeau's requests under the Act. The Department and Petzinger applied for judicial review and sought on an emergency basis to file certain affidavits on a confidential basis and to prohibit the Commissioner from delivering the report to Drapeau and to prohibit Drapeau from publicly disclosing the report. Meanwhile, the Department of National Defence rejected the Commissioner's conclusion respecting conflict of interest and the recommendation.

The Federal Court of Canada, Trial Division, in a decision reported 119 F.T.R. 79, allowed the application to file affidavits on a confidential basis, but denied injunctive relief. The court dealt with the issue of costs. Thereafter, the Commissioner communicated to Drapeau the results of the investigation, the recommendation and the Department's rejections of the recommendation. The Department and Petzinger applied for leave to file, in an ex parte manner, an amended originating notice of motion and three further affidavits in support of the judicial review application. The Department and Petzinger filed a further motion for leave to file an additional affidavit. The motion included a request that the Commissioner forward a certified copy of certain material pursuant to Federal Court Rule 1612. The Commissioner filed a written objection to the request. The Commissioner and Drapeau each moved to strike out the originating notice of motion filed on behalf of the Department and Petzinger.

The Federal Court of Canada, Trial Division, (1) allowed the Commissioner's application to strike out the Department and Petzinger's originating notice of motion, without costs; (2) allowed Drapeau's application to strike out the Department and Petzinger's originating notice of motion with costs on a solicitor-client basis for the proceedings after the date of the decision reported at 119 F.T.R. 79; (3) dismissed the Departments and Petzinger's motions for leave to file an amended originating notice of motions and supplementary affidavits; and (4) upheld the Commissioner's objection to the production of documents.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - Judicial review applicants sought leave to file additional supporting affidavits - One respondent asserted that leave should be denied since the information contained in the affidavits was available when the originating notice of motion was filed and because one of the affidavits was sought to be filed after the respondents had responded to the applicants' submissions - The other respondent asserted that the affidavits were improper since they were in a large part sworn on information and belief - The Federal Court of Canada, Trial Division, struck the originating notice of motion, but stated that it would have otherwise granted leave to file the affidavits without comment on the weight to be given to the evidence - Any prejudice could have been offset by granting the respondents leave to file further affidavits or argument in response - See paragraphs 59 to 61.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties - Drapeau filed a complaint under the Access to Information Act - The Information Commissioner investigated and prepared a report - The respondents applied for judicial review - The respondents sought leave to file an amended originating notice of motion - The amended notice deleted reference to the Commissioner as a respondent, but still sought forms of relief directed to him and costs - The Federal Court of Canada, Trial Division, held that the Commissioner was properly excluded as a respondent - The Commissioner's proper standing was as an intervenor with full party status to make submissions on issues other than the merits of his decision which was not before the court - See paragraphs 62, 63.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties - Drapeau filed a complaint under the Access to Information Act against the Department of National Defence and Petzinger, the Department's Access to Information and Privacy Coordinator - The Information Commissioner investigated and prepared a report - The Department and Petzinger applied for judicial review - The Department and Petzinger sought leave to file an amended originating notice of motion - The amended notice deleted reference to the Commissioner as a respondent - Drapeau questioned his standing as a respondent, particularly where he was the sole respondent - The Federal Court of Canada, Trial Division, held that Drapeau was properly named as a respondent where he was an interested person adverse in interest to the Department and Petzinger in the proceedings before the Information Commissioner - See paragraph 64.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - Drapeau filed a complaint under the Access to Information Act, alleging conflict of interest against Petzinger and the Department of National Defence (the Department) - The Information Commissioner investigated and made a recommendation - The Department sought judicial review - In dismissing the Department's notice of motion, the Federal Court of Canada, Trial Division, held that special reasons existed to award Drapeau solicitor and client costs from the date of an interim order, where (1) if not earlier, it was clear after the interim order that there was no possibility of a declaration or other relief directed to Drapeau, a private citizen; (2) the continuing claim for costs required Drapeau to actively participate in the proceedings; and (3) the applicants characterized Drapeau's purpose in making the complaint, which was his statutory right, as illicit and improper - See paragraphs 70 to 72.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - Drapeau filed a complaint under the Access to Information Act, alleging conflict of interest against Petzinger and the Department of National Defence (the Department) - The Information Commissioner investigated and made a recommendation - The Department sought judicial review - In dismissing the Department's originating notice for judicial review, the Federal Court of Canada, Trial Division, denied the Commissioner's request for solicitor and client costs - If the applicants' actions were misguided, it did not constitute special circumstances warranting costs within the meaning of Federal Court Rule 1618 - Further, the fact that there was no basis that warranted continuing the proceedings and the originating motion was struck out, did not constitute special circumstances warranting an order of costs payable by one officer of the government to another - See paragraph 69.

Administrative Law - Topic 3351

Judicial review - General - Practice - Intervenors - General - [See first Administrative Law - Topic 3347 ].

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - [See first Administrative Law - Topic 3347 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Drapeau filed a complaint under the Access to Information Act, alleging conflict of interest against Petzinger and the Department of National Defence - The Information Commissioner investigated and prepared a report which recommended that, for a period of time, Petzinger have no involvement in decisionmaking respecting administration of Drapeau's requests under the Act - The Department and Petzinger sought judicial review - Meanwhile, the Department of National Defence rejected the Commissioner's recommendation - The Federal Court of Canada, Trial Division, allowed Drapeau's and the Commissioner's applications to strike the originating notice of motion, where the judicial review application was moot - See paragraphs 46 to 49.

Courts - Topic 4073

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Striking out pleadings - [See Courts - Topic 2286 ].

Crown - Topic 7113

Examination of public documents - General - Disclosure by Information Commissioner - Drapeau filed a complaint under the Access to Information Act alleging conflict of interest against Petzinger and the Department of National Defence - The Information Commissioner investigated and prepared a report - The Department and Petzinger sought judicial review - The Department and Petzinger sought to have the Commissioner forward a certified copy of certain material pursuant to Federal Court Rule 1612 - The Commissioner objected, asserting that all other material relating to the investigation and report were privileged and not to be disclosed according to the provisions of the Act - The Federal Court of Canada, Trial Division, upheld the Commissioner's objection - See paragraphs 14 to 31.

Crown - Topic 7285

Examination of public documents - Freedom of information - Practice - Costs - [See both Administrative Law - Topic 3349 ].

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Courts - Topic 2286 ].

Practice - Topic 2488

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Amendments - Judicial review applicants sought leave to amend their originating notice of motion - The Federal Court of Canada, Trial Division, dismissed the judicial review application - The court stated that but for the dismissal it would have granted leave to amend, where the amendments corrected an error in the originating motion in seeking a declaration in effect against an individual - The amendments did not introduce any basic change in the substance of the complaints nor any ultimate prejudice to the respondents' interests - The court could by directions vary times for filing of the respondents' responses to the amended notice - See paragraphs 32 to 40.

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Striking out - Judicial review applicants sought, inter alia, a declaration that a complaint under the Access to Information Act was frivolous and vexatious and filed for improper and illicit purposes and an order setting aside the Information Commissioner's report - The applicants sought leave to file an amended originating notice of motion which, inter alia, changed the declaration to provide that the Commissioner failed to investigate the complaint properly - The Commissioner and complainant sought to strike out the originating motion - The Federal Court of Canada, Trial Division, rejected an assertion that the amended notice raised a new issue that should be subjected to a different application to strike - See paragraphs 32 to 37.

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Striking out - Respondents sought to strike out an originating notice of motion for judicial review - The Federal Court of Canada, Trial Division, rejected an assertion that it lacked jurisdiction to strike a motion - The court reiterated that "... it is within the inherent jurisdiction of the court to grant such relief, but discretion to do so would only be exercised where it is clear there is no basis for proceeding by originating motion" - See paragraph 42.

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Striking out - [See Courts - Topic 2286 ].

Practice - Topic 3604.6

Evidence - Affidavits - Supplementary affidavits - [See Administrative Law - Topic 3345 ].

Practice - Topic 3604.7

Evidence - Affidavits - Time for filing - [See Administrative Law - Topic 3345 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See first Administrative Law - Topic 3349 ].

Cases Noticed:

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), dist. [para. 26].

Rubin v. Clerk of the Privy Council (Can.), [1994] 2 F.C. 707; 167 N.R. 43 (F.C.A.), affd. [1996] 1 S.C.R. 6; 191 N.R. 394, appld. [para. 27].

Majeed v. Minister of Employment and Immigration (1993), 68 F.T.R. 75 (T.D.), dist. [para. 29].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.), refd to. [para. 42].

American Cyanamid Co. et al. v. Canada (Minister of National Health and Welfare) et al. (1994), 81 F.T.R. 174; 55 C.P.R.(3d) 461 (T.D.), refd to. [para. 42].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), refd to. [para. 42].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345, refd to. [para. 46].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 48].

Canadian Human Rights Commission v. Canada (Attorney General) and Bernard, [1994] 2 F.C. 447; 164 N.R. 361 (F.C.A.), folld. [para. 62].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 34, sect. 35, sect. 36(1), sect. 36(3), sect. 62, sect. 63, sect. 65 [para. 18].

Federal Court Rules, rule 1612, rule 1613 [para. 16].

Counsel:

Dogan Akman and Commander S.J. Blythe, for the applicant;

Daniel Brunet and Nathalie Daigle, for the respondent, Information Commissioner of Canada;

Martha Healey, for the respondent, Michel Drapeau.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Daniel Brunet, Nathalie Daigle, for the respondent, Office of Information Commissioner of Canada;

Osler, Hoskin & Harcourt, Ottawa, Ontario, for the respondent, Michel Drapeau.

These matters were heard in Ottawa, Ontario, on October 24, 1996, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on September 8, 1997.