[2011] 4 F.C.R. D-1
Access to Information
Appeal from Federal Court decision (2009 FC 339) dismissing judicial review of respondent’s decision to redact portions of annual human rights reports concerning Afghanistan—Appellant complaining to Office of the Information Commissioner pursuant to Access to Information Act, r.s.c., 1985, c. A-1 that redactions excessive—Commissioner determining inter alia that respondent properly invoking Act, s. 15(1) in withholding information—Federal Court satisfied that decision not to disclose portions of reports open to decision maker under s. 15(1)—However, Federal Court not expressly considering whether respondent having considered both applicability of s. 15(1) to redacted information, exercise of discretion with respect to application of exemption—Whether Federal Court erring in establishing burden of proof, in finding that respondent’s discretion under s. 15(1) exercised—Federal Court erring in law in relying upon 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 F.C. 421 (Telezone) to place burden of proof upon appellant—Reasons in Telezone, when read in their entirety, showing that burden of proof depending upon particular circumstances before Court—In Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.), Court finding that, in view of peculiar circumstances therein, applicant could not be made to assume evidential burden of proof—Telezone distinguishing, not overturning, Ruby—Circumstances herein analogous to those before Court in Ruby—Appellant not required to establish that respondent failing to consider exercise of discretion—As to exercise of respondent’s discretion, nothing in public, ex parte record demonstrating that decision maker considering existence of discretion—However, absence of such evidence not determinative of issue—Conversely, existence of statement in record that discretion exercised not necessarily determinative—Court unable herein to infer that decision maker understanding, considering that s. 15(1) conferring discretion to disclose or refuse to disclose information—Appeal allowed.
Attaran v. Canada (Foreign Affairs) (A-198-09, 2011 FCA 182, Dawson J.A., judgment dated May 27, 2011, 30 pp.)