3430901 Canada Inc. v. Canada ( Minister of Industry )
T-648-98 / T-650-98
Sharlow J.
17/11/99
41 pp.
Judicial review of refusal by delegate of Minister of Industry Canada to disclose certain information-Telezone, Information Commission bringing separate applications-Minister invited licence applications from parties interested in providing personal communication services-Six licences available, but Minister reserved right to issue less than that number-17 applications reviewed, analyzed by working group, which reported findings to selection panel to make recommendations to Minister-Telezone applied in January 1996 to compel disclosure of documents relating to Minister's decision to grant four licences, but not to Telezone-When response not satisfactory complained to Information Commissioner-After investigation, further disclosures made-Information Commissioner's report recommending even further disclosure-Minister's delegate continuing to withhold portions of 47 documents (disputed material)-Disputed material concerning information relating to third parties excluded from Information Commissioner's application-Telezone discontinuing application with respect to parts of disputed material-Information Commissioner's mandate to protect public's interests by ensuring government organizations fulfil obligations under Act-As no suggestion application made for any other purpose, Information Commissioner's application must be considered independently of Telezone's discontinuance-Minister's delegate relying on s. 21(1)(a), (b) giving Minister discretion to refuse to disclose advice or recommendations developed by or for government institution, account of deliberations involving employees of government institution-Application dismissed-While unfortunate process took as long as it did, Act not providing remedy for tardiness-No one at fault for time required for debate between Information Commissioner, Ministry officials as to interpretation, scope of Act to reach present state-Telezone arguing Minister maintaining refusal to disclose in face of legal opinion information should be disclosed, based on memorandum by Department of Justice lawyer-Author of memorandum characterizing comments as abstract, given without knowledge of actual documents-Not opinion disputed material should be disclosed-Memorandum neither indicating error of law, nor evidence of bad faith-No authority on meaning of exceptions in s. 21(1)(a), (b), but aimed at preserving integrity of government decision-making process-Underlying policy consideration that too much public disclosure could inhibit open, frank communication between government advisers, decision makers-S. 21(1)(a), (b) not requiring proof of harm-Best approach to review disputed material in light of evidence as to how, why came into existence to determine whether exception claimed for each particular item should be upheld, based on language of exception read in ordinary sense-Licence applicants provided with general information about objectives of licensing program, considerations to be taken into account, but relative weight ascribed to various factors, underlying policy objectives for various criteria or manner in which scores to be determined, never disclosed-Discussion of policy options concluding with recommendation "recommendation" within s. 21(1)(a)-In ordinary sense "advice" could include discussion of policy matters, options even if no suggested conclusion as to resolution of policy debate-Not always possible to put "facts, "advice", "recommendations" in airtight compartments; many documents having more than one aspect-Based on source, function of documents referring to weighting percentages, related policy discussions, this information essential, substantive component of advice, recommendations made to Minister in connection with decision to grant licences-Internal Ministry memorandum describing process by which financial plans of licence applicant initially assessed, summarizing relative rankings of applications with respect to supporting data, plausibility, assessment of financial plans-Describing facts, in sense of events that occurred-These events comprise analysis writer undertook in reaching conclusions-Account of deliberations by government officials-To extent contains advice to working group as to merits of financial aspects of licence applications, also falls into category of advice or recommendations-Memorandum about decision as to number of licences to be awarded combination of advice, recommendations, prima facie within s. 21(1)(a), (b)-Information about scores awarded to application of Telezone, other applicants intended to convey advice, recommendations-Handwritten memorandum prepared by person from working group to use as speaking notes for presentation to selection panel disclosed except for one cryptic comment Minister may refuse to disclose as account of deliberations-Sentences in briefing note to Minister, giving background information relating to licensing decision, briefly stating reasons for certain conclusions reached with respect to specific aspects of licence applications-Account of deliberations even though made after deliberations concluded-Written record of conclusions reached by members of working group, selection panel at various stages of evaluation process, with some analysis included in some documents characterized as account of deliberations, but as came into existence as part of process of preparing advice for selection panel or Minister, also within category of advice or recommendations-Internal Ministry correspondence relating to security arrangements, choice of personnel, procedural matters, including internal circulation of evaluation criteria, disclosing careful consideration given to questions of security, fairness of deliberative process-Ancillary to decisions as to granting of licences, but no less important-That these documents embody discussions of procedural issues of concern to Ministry officials mark them as accounts of deliberations-Also apparently formed basis of advice to Minister on procedural matters-On either ground Minister may refuse to disclose them-All of disputed material within s. 21(1)(a), (b)-S. 48 imposing burden of establishing authority to refuse to disclose record on government institution concerned-Minister's right to refuse to disclose particular information established when established information within statutory exception-Wherever burden of proof lies, all of evidence must be considered-Even if burden of proof on Minister with respect to discretionary aspect of decision to refuse to disclose, not precluded from meeting burden through evidence adduced by others-Documents relating to propriety of exercise of Minister's discretion in application record only by virtue of being appended to affidavits adduced on behalf of Information Commission, thus hearsay-Hearsay evidence cannot be rejected out of hand, but should not be accepted without considering whether necessary, reliable-Direct evidence of people with best knowledge of facts not available when needed for application-Condition of "necessity" met-But necessity not precondition to accepting hearsay evidence-Merely factor to consider against circumstances of entire case, including reliability factor-Reliability of documents as proof of truth of contents questionable as untested by cross-examination, created in course of investigation (thus may be viewed as instruments of advocacy rather than simple recitation of fact)-Investigation disclosed no evidence Minister's discretion improperly exercised-Excessively formalistic to disregard documents merely because hearsay-Such documents more likely than not to reflect reasons for Minister's decision not to disclose disputed material-Support Minister's assertion discretion exercised in good faith, for reasons rationally connected to purpose of statutory exceptions relied on-No evidence to contrary-Case involved important, although not particularly difficult questions of interpretation of s. 21(1)(a), (b) not considered before-Applicants entitled to award of costs on party and party scale pursuant to s. 53(2) even though applications not successful-Each applicant entitled to own award of costs and should not be required to share single award-Access to Information Act, R.S.C., 1985, c. A-1, ss. 21(1)(a),(b), 42, 48, 53(2).