Canada ( Information Commissioner ) v. Canada ( Minister of National Defence )
A-785-96
Desjardins, Décary and Noël JJ.A.
19/4/99
14 pp.
Appeal from Trial Division decision dismissing appellant's review application on ground application premature-Due to failure of Department of National Defence to make decision with respect to request for access to report prepared by Major-General Gauthier, Commissioner initiating two new complaints on own behalf and later filing application for judicial review-On January 12, 1996, twenty days after application filed in Federal Court, National Defence informing complainant of final decision refusing to give access to 22 pages of requested record (of 1,204 pages)-Trial Judge holding decision of National Defence not constituting deemed refusal to disclose based on continuing failure to give access, but rather final disclosure out of time which did not necessarily nullify right of National Defence to avail itself of exemptions and exceptions provided by Act, as Commissioner still had opportunity to consider merits of exemptions and exceptions and solicit comments of National Defence-Appeal dismissed-Deemed refusal to give access from moment government institution fails to give access to record within time limits set out in Act, with result interested parties placed in same position as if refusal within meaning of Act, ss. 7, 10(1)-Clear Commissioner could not, as did herein, file complaint and decide immediately, without even giving institution involved chance to respond-Argument effect of deemed refusal to prevent institution from subsequently invoking exceptions set out in Act and consequently Commissioner's initial investigation allowed Commissioner to decide on merits of complaint cannot succeed-Commissioner in fact still at first stage of investigation-Dispute between latter and institution had never turned on actual disclosure of report-Clear at hearing of review application first conclusion sought, to compel institution to give required notice, moot because institution finally complied with Commissioner's request on January 12, 1996-Moreover, as second part of investigation concerning merits of refusal to give access still not undertaken and accordingly not yet investigated, necessarily followed Court could not grant Commissioner's request to order Minister of National Defence to give access-Application premature-Investigation by Commissioner condition precedent to exercise of power of review, as provided in Act, ss. 41, 42-Commissioner submits government institution can no longer invoke discretionary exemptions based on Act, ss. 15(1), 21(1)(a) and (b) once application for review filed in Federal Court-True after Commissioner's investigation complete-In instant case, as first step not yet undertaken, discretionary exemptions must be raised during Commissioner's investigation-As respondent's delays main cause of dispute, appeal dismissed without costs-Access to Information Act, R.S.C., 1985, c. A-1, ss. 7, 10(1), 15(1), 21(1), 41, 42.