ACCESS TO INFORMATION |
Rubin v. Canada (Minister of Foreign Affairs and International Trade)
T-2304-98
2001 FCT 440, Blanchard J.
7/5/01
10 pp.
Judicial review of decision of Minister of Foreign Affairs and International Trade (FAIT) concerning access to information request--On April 26, 1997, applicant sought environmental screening records related to sale of CANDU nuclear reactors to China--Access to Information and Privacy Office (ATIP) contacted Environment Services of FAIT, requested copies of all records related to request--Environment Services provided ATIP with four records determined to be relevant to request, one of which identified as draft report on survey of studies conducted by Atomic Energy of Canada Limited (AECL) on Qunishan Candu Initiative (November 1996) (Survey Report)--Survey Report not provided to applicant--English translation of environmental impact report prepared by Shanghai Nuclear Research Institute (Shanghai Report) contained in binder of material provided by AECL for use throughout weekend of November 2-3, 1996--Provided directly to AECL by Chinese Government, in confidence and on condition not be disclosed to public--All copies of AECL binder returned to AECL on November 7, 1996--Information Commissioner concluding applicant's complaint not well founded--After commencement of within application Survey Report released to applicant because Chinese government no longer opposing its release--Applicant requesting (1) directions to FAIT concerning late release of report; (2) order for release of Shanghai Report--(1) Outside Court's jurisdiction to order instructions to FAIT where no continuing refusal to disclose records--Both Access to Information Act, ss. 41, 49 requiring, as condition precedent, government institution refuse to disclose record at issue--Once this right provided, no further remedy for Court to order--(2) S. 4(1) stating person having right to access to any record under control of government institution--"Control" in s. 4(1) undefined, unlimited--Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.) upholding decision at trial level that "control" should be given broad interpretation--Whether or not record under control of government institution must be determined on case-by-case basis, not limited by test as to how information must be used--First time Court faced with situation in which document used by department for limited time, but document no longer in physical possession of department--Shanghai Report provided to FAIT under strict conditions for limited time frame and on condition it be promptly returned to AECL--Officials from FAIT used Shanghai Report for matter of days with assurance to AECL all copies of report would be returned to AECL--All copies of Shanghai Report returned to AECL--No evidence FAIT returned Shanghai Report to AECL for ill-motivated purpose nor that FAIT contracted out of Access to Information Act--FAIT not having control of Shanghai Report when applicant's access request filed at end of April 1997--Access to Information Act, R.S.C., 1985, c. A-1, ss. 4(1), 41, 49.