Information Commissioner (Can.) v. Canada (Attorney General), 2015 FC 405

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: February 25, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 405;(2015), 477 F.T.R. 255 (FC)

Information Commr. v. Can. (A.G.) (2015), 477 F.T.R. 255 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. AP.025

The Information Commissioner of Canada (applicant) v. The Attorney General of Canada (respondent) and VIA Rail Canada Inc., The Canadian Air Transport Security Authority and The Business Development Bank of Canada (intervenors)

(T-367-13; 2015 FC 405)

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

Federal Court

Harrington, J.

March 31, 2015.

Summary:

An individual (the requestor) requested certain records from Human Resources and Skills Development Canada (HRSDC) under the Access to Information Act. In accordance with s. 11(2) of the Act and s. 7(2) of the Access to Information Regulations, HRSDC calculated and required payment of search and preparation fees before it would provide some of the records. The requestor complained to the Office of the Information Commissioner. The Commissioner took the position that no search and preparation fees were payable because the records in question were in electronic form and s. 7(2) of the Regulations referred to non-computerized records. HRSDC disagreed with the Commissioner's conclusion. Pursuant to s. 18.3(1) of the Federal Courts Act, the Commissioner applied for a reference which was framed as follows: "Are electronic records non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the Access to Information Act and subsection 7(2) of the Access to Information Regulations?" The Attorney General moved to strike the application on the basis that s. 18.3 was not available to government bodies whose functions were merely advisory, rather than determinative.

A Prothonotary of the Federal Court, in a decision reported at (2014), 447 F.T.R. 267, dismissed the motion.

The Federal Court held that search and preparation fees could not be applied to electronic or computerized records.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - [See Crown - Topic 7172 ].

Crown - Topic 7172

Examination of public documents - Freedom of information - Legislation - Application fees - Section 11(2) of the Access to Information Act provided that a government institution could charge search and preparation fees for records requested under the Act "calculated in the manner prescribed by regulation" - Section 7(2) of the Access to Information Regulations set out the search and preparation fee that could be charged for a "non-computerized record" - In a reference filed by the Office of the Information Commissioner, the issue was whether these sections authorized the imposition of fees for records that were in electronic form - The Federal Court held that search and preparation fees could not be imposed for electronic or computerized records - In ordinary parlance, emails, Word documents and other records in electronic format were computerized records - Records that were machine readable were also computerized - The Regulation was very specific and spoke only of a "non-computerized record" - There was a gap - However, Parliament made it very clear that there could be no fee unless it was prescribed by regulation - See paragraphs 45 to 64.

Practice - Topic 3791

References and inquiries - References by tribunals to the courts - General - The Office of the Information Commissioner took the position that search and preparation fees could not be charged for records requested under the Access to Information Act that were in electronic form - The Commissioner applied for a reference respecting this issue - The Federal Court noted that the reference involved the proper interpretation of the Act and the Access to Information Regulations - The court was being called upon to form its own opinion, not to decide whether the opinion of the Commissioner was reasonable - There was no decision of the Commissioner under review - Consequently, the general principle that deference should be given to a decision-maker interpreting his or her home statute did not apply - See paragraphs 33 to 35.

Statutes - Topic 513

Interpretation - General principles - Omissions or gaps - [See Crown - Topic 7172 ].

Cases Noticed:

The Putbus, [1969] 2 All E.R. 676; [1969] 1 Lloyd's Rep. 253, refd to. [para. 3].

Blank v. Canada (Minister of Environment), [2000] F.T.R. Uned. 689; 100 A.C.W.S.(3d) 377 (T.D.), refd to. [para. 11].

Police Authority for Huddersfield v. Watson, [1947] K.B. 842, refd to. [para. 29].

Baron et al. v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 324 F.T.R. 133; 2008 FC 341, refd to. [para. 30].

Yeager v. Correctional Service of Canada, [2003] 3 F.C. 107; 299 N.R. 352; 2003 FCA 30, refd to. [para. 32].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 36].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 37].

Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 39].

Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285; 325 N.R. 369; 2004 SCC 60, refd to. [para. 40].

Parsons v. Citizens' Insurance Co. (1881), L.R. 7 App. Cas. 96 (Ont. P.C.), refd to. [para. 41].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 44].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 45].

Toronto (City) v. Ontario (Attorney General) and Viking Houses; Peel (Municipality) v. Ontario (Attorney General) and Viking Houses, [1979] 2 S.C.R. 1134; 29 N.R. 244, refd to. [para. 64].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 11(2) [Appendix].

Access to Information Regulations, SOR/83-507, sect. 7(2) [Appendix].

Counsel:

Louisa Garib and Diane Therrien, for the applicant;

Gregory Tzemenakis, for the respondent;

Loïc Berdnikoff, for the intervenors.

Solicitors of Record:

Sack Goldblatt Mitchell LLP, Toronto, Ontario, for the applicant;

Legal Services, Office of the Information Commissioner of Canada, Gatineau, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Lavery, de Billy LLP, Montreal, Quebec, for the intervenors.

This reference was heard at Ottawa, Ontario, on February 25, 2015, before Harrington, J., of the Federal Court, who delivered the following judgment and reasons on March 31, 2015.