Date: 20040106
Docket: T-2117-00
Citation: 2004 FC 1
BETWEEN:
CANADA POST CORPORATION
Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
Respondent
and
PETER HOWARD
Added Respondent
BACKGROUND
[1] The central issue raised by Canada Post Corporation ("CPC"), in its section 44 review under the Access to Information Act (the "Act"), is whether a document proposed for release but with severances (partial exemption) based on paragraph 20(1)(b) of the Act, was in the control of Public Works and Government Services Canada ("Public Works) a government institution listed under Schedule I of the Act or whether such document was in the control of an office - the Office of the Minister responsible for Canada Post Corporation, said by CPC to be a government institution not listed under Schedule I of the Act and therefore not subject to access by a requestor. At the time the request was made the Minister of Public Works was also the Minister responsible for CPC.
[2] In particular, a sub-issue is whether the Corporate Implementation Group ("CIG"), then a branch in Public Works, who had possession of the requested document and transmitted it to the Access to Information and Privacy ("ATIP") Office at Public Works to whom Mr. Howard's request for access was directed was part of the Office of the Minister responsible for Canada Post. Peter Howard was added as a party respondent in this proceeding. The document he sought was the full two volume report conducted by TD Securities and Dresden-Kleinworth Benson on the Canada Post Mandate Review (the "Report").
[3] There is no dispute between the parties that Public Works is a department listed under Schedule I of the Act and that under the heading of "Other Government Institutions" in that Schedule neither the Office of the Minister responsible for Canada Post nor CPC itself are listed.
[4] It is also common ground CPC received a third party notice under section 27 of the Act and made submissions against disclosure and by decision dated October 23, 2000, the Access to Information and Privacy Coordinator (the "Access Coordinator") at Public Works advised the requested record would be released with appropriate severances.
[5] The purpose of the Act is set out in section 2 which reads:
| 2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government. 2(2) Complementary procedures (2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. [emphasis mine]
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2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif. 2(2) Étoffement des modalités d'accès (2) La présente loi vise à compléter les modalités d'accès aux documents de l'administration fédérale; elle ne vise pas à restreindre l'accès aux renseignements que les institutions fédérales mettent normalement à la disposition du grand public. |
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[6] A key definition is that of government institution in section 3 which reads:
| 3. In this Act, "government institution" means any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I;
"head", in respect of a government institution, means (a) in the case of a department or ministry of state, the member of the Queen's Privy Council for Canada presiding over that institution, or(b) in any other case, the person designated by order in council pursuant to this paragraph and for the purposes of this Act to be the head of that institution; [emphasis mine] |
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3. Les définitions qui suivent s'appliquent à la présente loi. « institution fédérale » Tout ministère ou département d'État relevant du gouvernement du Canada, ou tout organisme, figurant à l'annexe I.
« responsable d'institution fédérale » a) Le membre du Conseil privé de la Reine pour le Canada sous l'autorité de qui est placé un ministère ou un département d'État; b) la personne désignée par décret, conformément au présent alinéa, en qualité de responsable, pour l'application de la présente loi, d'une institution fédérale autre que celles mentionnées à l'alinéa a). |
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[7] Section 4 of the Act deals with the right of access to government records. It
reads:
| 4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is (a) a Canadian citizen, or (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has a right to and shall, on request, be given access to any record under the control of a government institution. [emphasis mine]
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4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande_: a) les citoyens canadiens; b) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés.
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THE FACTS
[8] In 1995, the Government of Canada established a review team to examine financial and policy issues related to CPC including:
(1) the services which it provided and those which it should provide in the future;
(2) its continued exclusive privilege over the delivery of mail;
(3) whether it should aim to generate a commercial return or aim to operate at a break even level;
(4) pricing, cross-subsidization and fair competition marketplace issues;
(5) analysis of its current and future financial position and associated risks; and
(6) governance structure.
[9] On July 31, 1996, the review team produced a report to the Minister responsible for Canada Post who made it public on October 8, 1996, announcing a number of immediate policy actions including a moratorium on the closure of rural post offices, a freeze on government approval of postal rate increases and the withdrawal by Canada Post from the delivery of economy unaddressed ad mail. The Minister responsible for Canada Post also announced the government had retained financial advisors to assess the impact of the recommendations on Canada Post's ability to remain financially self-sustaining and on CPC's current financial position. The Minister expected the Report by the financial advisors to provide her with expert financial advice. TD Securities Inc. was identified as one of the financial advisors.
THE EVIDENCE
(1) From CPC
[10] The evidence to establish that an Office of the Minister responsible for Canada Post was created and is therefore an unlisted government institution for the purposes of the Act is derived mainly from an analysis by counsel for Canada Post of various statutory and regulatory provisions and, in particular, the provisions of the Canada Post Corporation Act (the "CPCA") and the Department of Public Works and Government Services Act (the "DPWA") as well as various designations who the Minister responsible for Canada Post has been from time to time. Added to this material, CPC filed the affidavit and supplementary affidavit of its Director of Economic Strategy and Regulatory Affairs, William R. Price.
[11] Mr. Price confirmed the chronology of events forming the background of this review and deposed to the realities of the interaction between CPC and the Minister responsible for CPC and persons said to be his officials, particularly those in the CIG.
[12] Mr. Price tells us the Report and recommendations of the financial advisors were analysed by the Minister responsible for Canada Post and her staff to brief and prepare the Minister to submit her advice and policy recommendations to government on CPC's future direction. He says the TD Securities analysis is the foundation for a subsequent draft supplementary report to the Minister responsible for Canada Post. That draft supplementary report is one of the documents in issue in the companion proceeding under court file T-1900-00.
[13] Mr. Price indicates, as a result of the process, the Minister responsible for Canada Post issued directions to CPC which summarized the government's decisions on actions to be taken by CPC. He also informs us the TD Securities analysis and draft supplementary report in their entirety have never been placed into the public domain but acknowledges a summary document of them was released to the public later in 1997 after having been carefully reviewed to determine what information should be released. He advises that all other information and the documents themselves were treated as confidential.
[14] Mr. Price opines the CPCA creates an office of Minister responsible for CPC and states, pursuant to the CPCA, any member of the Queen's Privy Council for Canada may be designated by the Governor in Council as that Minister.
[15] He advises us the CPCA confers upon the Minister responsible for CPC a number of powers in relation to CPC including for example the power to appoint directors (subsection 6(2)) to give directives to CPC (section 22) and to exercise such other powers and functions in relation to CPC as are defined in that statute.
[16] While he acknowledges the Minister of Public Works and Government Services (then Minister of Supply and Services) was designated in 1993 by Order in Council PC.1993-1987 to be the Minister responsible for the purposes of the CPCA, and exercised this dual responsibility at the time the request was made, Mr. Price says there have been historical instances where such was not the case. He cites the example the House Leader at one time was also Minister responsible for CPC and did not have any ministerial responsibilities for any federal government department.
[17] In a supplementary affidavit, Mr. Price updated the Court on recent changes in portfolio management for CPC as follows:
(1) By SI/2002-34, dated January 30, 2002, the Minister of State, Deputy Prime Minister and Minister of Infrastructure and Crown Corporations, John Manley, was designated as the Minister responsible for the purposes of the CPCA;
(2) a month later, by SI/2002-48, pursuant to paragraph 2(a) of the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council transferred "to the Office of Infrastructure and Crown Corporations of Canada the control and supervision of the portion of the Public Service in the Department of Public Works and Government Services known as the Corporate Implementation Group" [emphasis mine];
(3) on August 6, 2002, the Minister of Transport was designated to be the Minister responsible for the CPCA and by another Order in Council of the same date the CIG was transferred from the Office of Infrastructure and Crown Corporations of Canada to the Department of Transport.
[18] Mr. Price describes the communications to and by the Minister responsible for Canada Post. He recites:
29. Formally, most reports, requests for approvals, tablings, etc. are prepared by CPC staff along with a covering letter to be signed by the Minister responsible for CPC. This covering letter is prepared on the letterhead of the Minister responsible for CPC. These materials flow to the Minister from CPC via a daily or twice-daily satchel... .
30. Once all such reports or requests receive full approval within CPC (by the Board of Directors or by the President as the case may be), they are specifically addressed and forwarded to the Minister responsible for CPC by the President of CPC. These materials are then forwarded under the signature of the Minister responsible for CPC to the appropriate point of receipt or the decision maker in the Government for disposition.
31. Informally, the President of CPC and certain of his senior executives may provide both written and oral presentations and briefings to the Minister responsible for CPC on these reports and requests for approval, or on issues of general and ongoing importance between CPC and the Minister responsible for CPC. Such meetings could include the Minister's personal staff and certain senior officials such as the Deputy Minister or the Assistant Deputy Minister of the Corporate Implementation Group.
32. Before the approved reports, requests, etc. referred to above are forwarded by CPC to the Minister responsible for CPC, advance drafts, presentations, and briefing notes are prepared and meetings and discussions are held between CPC and various staff levels within the Corporate Implementation Group, the Central Agencies (Treasury Board Secretariat, Department of Finance and Privy Council Office) and other government Departments as required. These records and briefings are prepared for the purpose of permitting staff to prepare notes and brief relevant Ministers on matters relating to CPC that are to come before the Ministers for consultation or approval. [emphasis mine]
[19] Mr. Price, then in his affidavit, describes the Corporate Implementation Group in the following terms:
33. In order to assist him in exercising his statutory responsibilities as the Minister responsible for CPC, the Minister has assigned secretariat responsibilities for CPC to the Corporate Implementation Group. The Corporate Implementation Group is a group of officials who administer all matters relating to those Crown Corporations for which the [Minister of Public Works] is the responsible Minister. Although for administrative convenience the Group is made up of civil servants who are employed by PWGSC, the Group does not perform any duties relating to the Departmental responsibilities of PWGSC. A manager level person within Corporate Implementation Group concentrates on matters relating to CPC.
34. The Corporate Implementation Group reports to an Assistant Deputy Minister within PWGSC, Ms. Christiane Ouimet, who reports to the Deputy Minister, Ms. Janice Cochrane.
35. The management and staff of the Corporate Implementation Group are generally responsible for briefing the Minister responsible for CPC on matters relating to CPC, such as government relations and corporate issues. They are routinely copied and briefed by CPC in parallel or in advance on most matters which are of interest to, or which will be submitted to, the Minister responsible for CPC for his consideration and action. The purpose of these briefings is to permit staff of the Corporate Implementation Group to provide independent analysis, review and comment on such matters to the Minister responsible for CPC.
36. Also, the staff of the Corporate Implementation Group provide valuable input and guidance to CPC on matters relating to the role of the Minister responsible for CPC and the approval process within the Government. The staff and management of the Corporate Implementation Group will often join the staff of the Central Agencies during briefings by CPC. [emphasis mine]
[20] He mentions that documents provided by CPC to the Minister responsible for CPC, or to the Minister's staff, are kept separate and distinct from other documents relating to the departmental activities of Public Works. The TD Securities study, he states, was not delivered to the Minister of Public Works.
[21] Mr. Price concludes his affidavit by reiterating the TD Securities document commissioned by the Minister responsible for CPC is a secret report that was addressed and delivered to her. Thus, Mr. Price contends the Report is under the control of the Minister responsible for CPC, a body or office to which the Access to Information Act does not apply.
(2) By the Minister of Public Works and Government Services Canada
[22] The respondent countered Mr. Price's affidavit with the affidavit of Christiane Ouimet. She was, at the time, employed with the Department of Public Works as the Assistant Deputy Minister to whom the CIG reported to and for which she was responsible.
[23] According to her, the CIG is a departmental branch of Public Works responsible for supporting the Deputy Minister of Public Works in his role as Principal Policy Advisor to the Minister of Public Works. She adds the Deputy Minister of Public Works, supported by CIG, assists the Minister of Public Works in the management of his Crown Corporation portfolio.
[24] She deposes:
The CIG's Portfolio management and departmental activities include (1) organizing and providing secretariat support to the regular meetings of the Minister with the heads of the Portfolio organizations; (2) developing briefings and advice on submissions and reports by Portfolio organizations, as requested; (3) identifying emerging Portfolio issues, liaising with central agencies and coordinating responses, as required; (4) providing integrated administrative, logistical and other support, as required.
[25] CIG's portfolio management and departmental activities relate to one agency and seven federal Crown Corporations and their subsidiaries that report to Parliament through the Minister of Public Works.
[26] In order to provide the support to the Deputy Minister in advising and assisting the Minister of Public Works, "it is typically necessary to consult and exchange information with Portfolio organizations. Ongoing consultations and exchanges of information are considered to be essential to the operations of the CIG in developing appropriate advice and recommendations to the Deputy Minister and ultimately the Minister in the overall management of Portfolio organizations."
[27] She concludes her affidavit by saying when Mr. Price deposed the CIG does not perform any duties relating to the department duties of Public Works, he was mistaken. The support provided by the CIG to the Deputy Minister of Public Works and the Minister of Public Works forms part of the departmental responsibilities of Public Works.
[28] One of the documents she appended to her affidavit stated CIG was originally established as an ad hoc organisation to support the 1993 departmental integration and later evolved to include responsibility for the department's Program Review Plan and other sensitive corporate projects. In April 1996, CIG was tasked with assisting the Deputy Minister in supporting the Minister with the Crown Corporations within his portfolio such as Canada Post Corporation and Canada Mortgage and Housing Corporation. Another document she appended described CIG's mandate as "to provide direct support to the Deputy Minister in managing a full spectrum of issues and initiatives on public sector governance, strategic business concerns and portfolio management".
[29] The respondent also filed the affidavit of Andrée Morissette, a Senior ATIP Officer with the Department of Public Works. She described how the request was processed by ATIP. She confirmed the CIG held the Report and forwarded that record to the ATIP office at Public Works.
ANALYSIS
(1) The structure of the CPCA
[30] I cite below the relevant statutory provisions in the CPCA concerning the Minister:
(a) Minister is defined:
2. (1) In this Act,
"Minister" means such member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act;
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« ministre » Le membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l'application de la présente loi.
(b) section 4 establishes a corporation to be called Canada Post Corporation and section 5 describes its objects;
(c) section 6 creates a Board of Directors and subsection 6(2) provides that each Director, other than the Chairman and the President, shall be appointed by the Minister with the approval of the Governor in Council;
(d) the Board, by section 10, shall direct and manage the affairs of the corporation;
(e) section 19 empowers the corporation to make regulations covering a wide range of matters such as prescribing rates of postage, prescribing what is a letter and what is non-mailable matter, providing for closure of Post Offices and the termination of rural routes and the termination of letter carrier routes as well as carrying out any international postal agreement.
(f) in connection with those regulations, section 20 requires pre-publication and it is to the Minister that interested persons may make representations;
(g) by subsection 20(3), it is the Minister who submits proposed regulations to the Governor in Council for consideration and approval;
(h) section 22 provides for ministerial directives and stipulates that in the exercise of its powers and the performance of its duties, CPC shall comply with such directives as the Minister may give to it;
(i) the Minister causes tablings in Parliament relevant to CPC (subsection 22(5));
(j) the Minister has a role to play with the authorized capital of the corporation (section 27.1); the corporation is authorized to issue to the Minister and the Minister is authorized to acquire the shares of the corporation which shares shall be registered in the name of the Minister (section 27.2) these shares having the exclusive right to vote at meetings of the shareholders of the corporation (subsection 27.2(4));
(k) the Minister is concerned with the financial management of the corporation. For example, section 29 provides the Minister of Finance, on application by the CPC approved by the Minister, may lend to CPC money;
(l) it is the Minister who enters into agreements with governments of other countries and with the approval of the Minister, the corporation may make such arrangements for transmitting mail in emergencies;
(m) it is the Minister who makes prohibitory orders prohibiting the delivery of mail in circumstances where a person mailing a letter is committing or attempting to commit an offence.
(2) The structure of the Financial Administration Act
[31] The CPCA must be read in conjunction with certain provisions of the Financial Administration Act ("FAA") which, in Part X, governs Crown corporations. "Appropriate Minister" is defined as the Minister specified by or pursuant to any other Act of Parliament as the Minister in respect of that corporation. At the time of the request for access to the Report that person was also the Minister of Public Works and Government Services.
[32] Section 88 of the FAA stipulates that each Crown corporation is ultimately accountable, through the appropriate Minister, to Parliament for the conduct of its affairs. Section 29 empowers the Governor in Council, on recommendation of the appropriate Minister, to give a directive to any parent Crown corporation defined to mean a corporation that is wholly owned directly by the Crown. Section 122 of the FAA requires that each parent Crown Corporation to annually submit a corporate plan to the appropriate Minister for the approval of the Governor in Council on the recommendation of the Minister. Section 123 contains similar provisions with respect to submitting and operating budget for approval by Treasury Board on recommendation of the appropriate Minister. Section 124 contains like provisions in respect of annual capital budgets.
[33] Without necessity to elaborate, the FAA gives the appropriate Minister a supervisory role in borrowings, surpluses, receipt of auditors' reports, recommendations on the appointment of auditors.
(3) The structure of the Department of Public Works and Government Services
[34] The Department of Public Works and Government Services is established by an Act of Parliament which came into force on July 12, 1996. It repealed the Public Works Act and The Department of Supply and Services Act.
[35] Section 3 of that Act states:
| 3. (1) There is hereby established a department of the Government of Canada called the Department of Public Works and Government Services over which the Minister of Public Works and Government Services appointed by commission under the Great Seal shall preside.(2) The Minister holds office during pleasure and has the management and direction of the Department. [emphasis mine] |
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3. (1) Est constitué le ministère des Travaux publics et des Services gouvernementaux, placé sous l'autorité du ministre des Travaux publics et des Services gouvernementaux. Celui-ci est nommé par commission sous le grand sceau. (2) Le ministre occupe sa charge à titre amovible; il assure la direction et la gestion du ministère. |
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[36] It is the Governor in Council, pursuant to section 4, who appoints the Deputy Minister to hold office during pleasure to be the Deputy Head of the Department.
[37] By section 5, the " Department shall operate as a common service agency for the Government of Canada, and its activities as a common service agency shall be directed mainly toward providing the departments, boards and agencies of the Government of Canada with services in support of their programs".
[38] Section 6 sets out the Minister's powers, duties and functions as the central purchasing authority for the Government of Canada, the central provider of services such as translation, architectural or engineering and the manager of Canada's public works.
[39] Sections 15 and 16 of that Act read:
| 15. The Minister may, on request of a department, board or agency of the Government of Canada, provide it with (a) management consulting services; (b) information management and information technology systems and services; (c) accounting services; (d) auditing services; (e) financial services; (f) services and advice in relation to the acquisition, management or disposition of real or immovable property;(g) architectural and engineering services, including services in respect of the adoption and application of related codes, standards, procedures, guidelines and technologies; and (h) services of any other kind that are within the ambit of the Minister's powers, duties and functions. 16 Services to governments and other bodies 16. The Minister may do any thing for or on behalf of (a) any department, board or agency of the Government of Canada or Crown corporation, or (b) with the approval of the Governor in Council, any government, body or person in Canada or elsewhere that requests the Minister to do that thing, where the Minister is authorized to do that thing under this or any other Act of Parliament for or on behalf of any department, board or agency of the Government of Canada. |
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15. Le ministre peut fournir, sur demande des ministères ou organismes fédéraux, les services suivants_: a) conseils en gestion; b) gestion de l'information et services et systèmes liés à l'informatique; c) comptabilité; d) vérification comptable; e) services financiers; f) services et conseils relatifs à l'acquisition, à la gestion et à l'aliénation de biens immeubles; g) services d'architecture et de génie, notamment en ce qui touche les normes, procédures et techniques à appliquer; h) les autres services qui relèvent de sa compétence. 16 Autres bénéficiaires des services 16. Le ministre peut exercer toute activité relevant des attributions que la présente loi ou toute autre loi fédérale lui confère et qu'il peut exercer pour le compte des autres ministères ou organismes fédéraux pour le compte_: a) des autres ministères ou organismes fédéraux et des sociétés d'État; b) avec l'agrément du gouverneur en conseil, des gouvernements, des organisations ou des personnes, au Canada et à l'étranger, qui le lui demandent.
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(4) The Control Issue
[40] The resolution of this issue turns on whether, taken together, the Minister responsible for Canada Post coupled with the CIG make up an office coming within the definition of "government institution" for the purposes of the Act.
[41] Since such an office is not listed in the Schedule to the Act, that statute would not apply to it and there would be no basis or authority to honour Mr. Howard's request for the Report.
[42] Counsel for CPC begins his submission by observing that the word "office" in the definition of government institution in the Act is not defined. He then turns to the Canadian Oxford Dictionary 1988, and says the word "office" includes: "5. A position with duties attached to it; a place of authority or trust or service especially of a public nature. 6. Tenure of an official position, especially, that of a government Minister...".
[43] The proper approach to statutory interpretation is set out in the Supreme Court of Canada's decision in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, where Justice Iacobucci, on behalf of the Court, stated the following:
¶ 21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
¶ 22 I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".
¶ 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.
[44] After considering the evidence, I cannot but conclude CPC has failed to establish the existence of an Office of the Minister responsible for Canada Post and I do so for several reasons.
[45] First, counsel for CPC could not point to me any legislation or regulation which created or established such an office. I examined a number of government institutions listed in the Schedule to the Act and, in particular, those designated as offices.
[46] I find all of the institutions listed in Schedule I were created or established by either legislation or regulation pursuant to which each of those institutions were authorized to operate with the support of employees who are under the management and direction of the designated person responsible and accountable for the operations of that institution.
[47] Second, in the context of the Public Service of Canada, it is a fundamental principle that Ministers need to be supported by responsible officials in the carrying out of their statutory functions and duties. For this proposition, I only need cite, as he then was, Justice Dixon's decision in The Queen v. Harrison, [1977] 1 S.C.R. 238, at page 245-46:
See also S.A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works [[1943] 2 All E.R. 560 (C.A.)]. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or verdicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.
[48] For an in depth review of the Carltona doctrine and the impact of an amendment to subsection 24(2) of the Interpretation Act (Canada), see Henry Molot's article in (1994) 26 Ottawa L. Rev. 257.
[49] CPC argues the CIG constitutes those responsible officials. Even if I accepted for purposes of argument the CIG was totally dedicated to assisting the Minister responsible for Canada Post, such an argument would ignore the fact that officials and personnel in CIG were appointed to their positions by the Public Service Commission to postings approved in the Department of Public Works by Treasury Board and whose staff relations under the Public Service Staff Relations Act are within the departmental structure of the Department of Public Works and Government Services.
[50] In my view, the Office of the Minister responsible for Canada Post could only exist as a government institution for the purposes of the Access to Information Act if the applicable infrastructure of position authorization and appointment in those positions were complied with. I recognize that in Crown Corporations, greater flexibility exists. I repeat that counsel for Canada Post could point to no instrument which reflected the intention by the Government of Canada to create such an office immune from the operation of the Access to Information Act. All of the evidence points to the direction of inclusion for the purposes of the Act rather than exclusion.
[51] Third, the Access to Information Act needs machinery to operate. The Act focusses on the head of government institution who, in the case of a government department, is the Minister autorized by section 73 of the Act to designate one or more employees of that institution to exercise or perform any of the powers, duties required of the head of the institution under the Act.
[52] In this case, the Minister operated through the ATIP office at Public Works to whom the request was directed, likely through the publication of the information about Public Works issued pursuant to section 5 of the Act, although I have no direct evidence on this.
[53] It was the ATIP office at Public Works who processed the request. It was that office who identified CIG as the appropriate branch within Public Works holding the requested document. CPC's argument ignores the existing institutional structure for processing access requests which points or reinforces the proposition that, for the purposes of the Access to Information Act, there cannot be carved out of the department structure to which the Act applies, a government institution such as CIG to whom the Act would not apply. Such a result would be incongruous.
[54] Fourth, CPC's argument misconstrues the Minister of Public Works' duties as portfolio manager of six Crown Corporations and how his/her portfolio management interacts with the Access to Information Act. Ministers who manage agencies, tribunals or corporations in their portfolio are constitutionally responsible for all of the agencies in those portfolios, but their relationship with those agencies, the degree of responsibility they have for them and the power of direction they have over them will vary from one agency to another and these matters are generally set out in the enabling legislation for each entity. The respondent's materials, pages 190 through page 206 of the respondent's confidential application record makes this clear.
[55] The need for flexibility is evident by the fact that at least two of the Crown Corporations in the Minister of Public Works' portfolio at the time of the request were recognized as government institutions listed in the Schedule to the Act for which the Presidents of those corporations were designated as heads of institutions for the purposes of the Act. The respondent's material makes it clear Deputy Ministers, in addition to the role as manager of the department, acts as the principal policy advisor to the Minister by giving advice to the Minister on matters within the Minister's responsibility and authority. That includes advice with respect to a Minister's portfolio.
[56] Fifth, CPC's argument attempts to bifurcate the Minister's functions as head of his department and his portfolio management for Agencies and Crown Corporations. Such bifurcation is not appropriate. The Minister is constitutionally responsible for both areas and in terms of the Access to Information Act, he must rely on the support of his departmental officials to discharge his responsibilities under that Act.
[57] Having rejected CPC's argument the Office of the Minister responsible for Canada Post constitutes a government institution, I rely on Justice Rothstein's decision, as a member of the Federal Court, in Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320, as sustained by the Federal Court of Appeal reported at (1995), 60 C.P.R. (3d) 441, for the proposition that control normally means possession.
[58] Counsel for Canada Post made an argument based on Justice Noël's, as he then was, decision in Privacy Commissioner of Canada v. Canada Labour Relations Board, [1996] 3 F.C. 609, (F.C.T.D.), that, onto the possession criteria should be grafted a further condition that possession of a document must have been acquired through the exercise of authorized statutory functions. Assuming without deciding such to be the case, CIG, in my view, was in possession of the requested report in the exercise of its duty to advise the Deputy Minister and the Minister in the discharge of their responsibilities in managing CPC as part of the Minister's portfolio.
(5) Necessity to Issue Reasons
[59] Counsel for CPC argues the lack of reasons justify quashing the decision to disclose made by the Access Coordinator. He relies on the Supreme Court of Canada's decision in Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817.
[60] I agree with the following propositions made by counsel for the respondent:
(1) Baker, supra, does not stand for the proposition reasons for decision are invariably required. At paragraph 24 of her reasons, Justice L'Heureux-Dubé stated the following:
¶ 43 In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
I note here that a section 44 review is a review de novo.
(2) In Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, Justice MacKay drew a distinction between decisions to disclose as contrasted with a decision not to disclose. At paragraph 25, he stated:
Unlike the situations in Ternette and Davidson where the Court was concerned with decisions not to disclose records and the reasons specified for those decisions, we are here concerned with decisions to disclose records. No reason need be specified for that. The Act requires it. Disclosure is the responsibility of the respondent unless the information requested is among the categories specifically exempt under the Act.
(3) The recent Federal Court of Appeal decision in 3430901 Canada Inc. and Telezone Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 421, does not elevate CPC's comfort in respect to this point. I note in that case, the record did not contain an affidavit of the official at Industry Canada explaining the basis of the decision. Moreover, it was a refusal to disclose case. Justice Evans went on to decide in any event, that in the circumstances before him, reasons had been provided and the real question was as to the sufficiency of those reasons. Moreover, Justice Evans at paragraph 103 stated he was willing to assume for the purposes of the appeal, but need not decide, that Industry Canada was obliged to provide reasons for its discretionary refusal to disclose the documents requested by Telezone and the Information Commissioner. For these reasons, the Telezone case does not assist CPC; and
(4) The Supreme Court of Canada's decision in Dagg v. Minister of Finance, [1997] 2 S.C.R. 403, at paragraph 114, supports the respondent's position in this case.
[61] For these reasons, I cannot accept CPC's argument on the necessity to issue reasons argument.
[62] For all of these reasons, CPC's section 44 application for review is dismissed with costs.
« François Lemieux »
J U D G E
OTTAWA, ONTARIO
JANUARY 6, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2117-00
STYLE OF CAUSE: CANADA POST CORPORATION
Applicant
- and -
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
Respondent
- and -
PETER HOWARD
Added Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: Monday, May 26, 2003
REASONS FOR Order : The Honourable Mr. Justice Lemieux
DATED: Tuesday, January 6, 2004
APPEARANCES:
Mr. Ronald D. Lunau FOR APPLICANT
Ms. Catherine Beaudoin
Mr. Christopher Rupar FOR RESPONDENT
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP FOR APPLICANT
2600 - 160 Elgin Street
Ottawa, Ontario K1P 1C3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
2287 - 284 Wellington Street
Ottawa, Ontario K1A 0H8