Information Commissioner (Can.) v. Canada (Attorney General), (2014) 447 F.T.R. 267 (FC)

• Court: Federal Court (Canada)
• Case Date: November 21, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 447 F.T.R. 267 (FC);2014 FC 133

Information Commr. v. Can. (A.G.) (2014), 447 F.T.R. 267 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. AP.021

The Information Commissioner of Canada (applicant) v. The Attorney General of Canada (respondent)

(T-367-13; 2014 FC 133; 2014 CF 133)

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

Federal Court

Tabib, Prothonotary

February 6, 2014.

Summary:

Section 11(2) of the Access to Information Act (ATIA) allowed government institutions to charge fees for the time, in excess of five hours, reasonably required to search and prepare records requested under the ATIA as such fees may be prescribed and calculated by regulations made under the ATIA. Section 7(2) of the Access to Information Regulations provided that a government institution might charge a fee of $2.50 per person per quarter hour for every hour in excess of five hours that was spent on search and preparation of a "non-computerized record". In 2011, Human Resources and Skills Development Canada (HRSDC) assessed and charged a fee in respect of a request for information that was mostly kept in the form of electronic records. On October 6, 2011 the Information Commissioner of Canada received a complaint regarding those fees. The Commissioner concluded that the complaint was well-founded, and, referring to its interpretation of s. 7(2) of the Regulations, recommended that HRSDC cease to assess fees for searching and preparing electronic records. The HRSDC disagreed with the Commissioner's interpretation. The Commissioner applied for a reference, seeking a judicial determination of the correct interpretation of s. 7(2) of the 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 dismissed the motion.

Practice - Topic 3793

References and inquiries - References by tribunals to the courts - Striking out notice of reference - Section 11(2) of the Access to Information Act (ATIA) allowed government institutions to charge fees for the time, in excess of five hours, reasonably required to search and prepare records requested under the ATIA as such fees might be prescribed and calculated by regulations made under the ATIA - Section 7(2) of the Access to Information Regulations provided that a government institution might charge a fee of $2.50 per person per quarter hour for every hour in excess of five hours that was spent on search and preparation of a "non-computerized record" - In 2011, Human Resources and Skills Development Canada (HRSDC) assessed and charged a fee in respect of a request for information that was mostly kept in the form of electronic records - On October 6, 2011, the Information Commissioner of Canada received a complaint regarding those fees - The Commissioner concluded that the complaint was well-founded, and, referring to its interpretation of s. 7(2) of the Regulations, recommended that HRSDC cease to assess fees for searching and preparing electronic records - The HRSDC disagreed with the Commissioner's interpretation - The Commissioner applied for a reference under s. 18.3 of the Federal Courts Act, seeking a judicial determination of the correct interpretation of s. 7(2) of the 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 dismissed the motion - It was certainly arguable that Parliament intended advisory bodies such as the Commissioner to have the right to refer to the court for determination issues of law that arose in the course of the performance of their duties - If so, if followed that it was enough to meet the requirements of s. 18.3 that the question be susceptible of determining how the Commissioner was to conduct herself - In the present case, a positive answer to the question posed by the Commissioner would be decisive of the "matter" before her - She would have no choice but to report to the complainant that the complaint was not well founded, and that HRSDC's decision not to implement her recommendations was justified - Accordingly, the court could not conclude that this reference was so manifestly ill-founded that it did not have the slightest chance of success.

Cases Noticed:

Alberta (Attorney General) et al. v. Westcoast Energy Inc. (1997), 208 N.R. 154 (F.C.A.), refd to. [para. 12].

Martin Service Station Ltd. v. Minister of National Revenue, [1974] 1 F.C. 398; 1 N.R. 464 (F.C.A.), refd to. [para. 12].

Rosen, Re, [1987] 3 F.C. 238; 80 N.R. 47 (F.C.A.), refd to. [para. 12].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48; 58 C.P.R.(3d) 209 (F.C.A.), refd to. [para. 13].

Air Can., Re (1997), 144 F.T.R. 161 (T.D.), refd to. [para. 18].

Immigration Act, Re (1991), 137 N.R. 64 (F.C.A.), refd to. [para. 20].

Canada (Attorney General) v. Information Commissioner of Canada (2007), 316 F.T.R. 167; 2007 FC 1024, refd to. [para. 25].

Pieters v. Canada (Attorney General) (2007), 313 F.T.R. 231; 2007 FC 556, refd to. [para. 27].

Counsel:

Jill Copeland and Louisa Garib, for the applicant;

Brian Harvey, for the respondent.

Solicitors of Record:

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

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

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

This motion was heard at Ottawa, Ontario, on November 21, 2013, by Tabib, Prothonotary, of the Federal Court, who delivered the following judgment on February 6, 2014.