Canada ( Information Commissioner ) v. Canada ( Minister of National Defence )
T-907-96 / T-1267-96
Teitelbaum J.
4/7/96
22 p.
Motion for order pursuant to Access to Information Act, s. 47 to allow Information Commissioner to file confidential material and for directions concerning hearing of application made pursuant to Act, s. 42(1)(a) pursuant to Federal Court Rule, R. 327-Requester, McAuliffe, filing notice of intent to appear-Somalia Commission filing notice of application for leave to intervene pursuant to RR. 5, 1716-Matter arising as result of Information Commissioner's application for review of Minister's refusal to disclose records under Access to Information Act-Minister requesting applications be continued sine die for at least six months-Act, s. 4(1)(a) providing Canadian citizen having right to and shall on request be given access to any record under control of government institution-Only for certain specific reasons can McAuliffe be denied "confidential" documents requesting-According to Associate Chief Justice's rule of practice of December 2, 1993, judge hearing request for directions must deal with matter to prepare application for hearing without delay and in summary way-Continuing applications sine die, or adjourning them for six or more months would defeat that purpose-Court prepared to do whatever reasonably possible to ensure access applications given priority as to hearing dates-If documents released before Information Commissioner's application for access heard, not Court's fault-Nor is it Court's fault if taxpayer dollars spent needlessly-Request to adjourn denied-Somalia Commission granted intervenor status with all rights of party in Information Commissioner's application for judicial review, except right to file affidavits for evidence, right to appeal, right to receive costs-Somalia Commission not permitted to be made party as not within Act, ss. 42, 43, 44-Parties not opposed to granting Somalia Commission intervenor status-Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (T.D.) setting out criteria to be met to justify participation as intervenor-Procedure to be followed governed by Federal Court Rules, Practice Rules-R. 5 permitting Court to allow parties to intervene in any proceedings provided intervening party can "pass" test set down in Rothmans-Somalia Commission refused right to file affidavits because could not help Court in determining well-foundedness of Information Commissioner's application for review-S. 48 imposing on Minister burden of establishing before Court validity of refusal to give access-Minister can obtain evidence from Somalia Commission if of opinion such evidence required-That burden pursuant to s. 48 on Minister not meaning Somalia Commission should not be permitted to cross-examine deponents-"Interests" of Minister, Commission may not, on all points, be same notwithstanding refusal to grant access based on what Commission submitted to Minister-Right to appeal denied as Commission not party to proceedings and no conclusion to be made against Commission-Commission granted intervenor status with right (1) to be served with all materials filed; (2) to cross- examine deponents on public-confidential affidavits filed by applicant or requester; (3) to file memorandum of points of argument; (4) to participate in argument of review application-Parties agreeing counsel for requester permitted access to confidential documents after signing undertaking as to confidentiality-Access to Information Act, R.S.C., 1985, c. A-1, ss. 4(1)(a), 42, 43, 44, 47, 48-Federal Court Rules, C.R.C., c. 663, RR. 5, 327, 1716.