A- 108-87
Ken Rubin (Appellant) (Applicant)
v.
President of Canada Mortgage and Housing Cor
poration (Respondent)
INDEXED AS: RUBIN V. CANADA (CANADA MORTGAGE AND
HOUSING CORP.)
Court of Appeal, Heald, Urie and Stone JJ.—
Ottawa, May 11 and July 6, 1988.
Access to information — Whether minutes of CMHC meet
ings exempt from disclosure under Access to Information Act
s. 21(1)(b) — Error in finding all material fell within s.
21(1)(b) exception, and in failing to attempt to sever releasable
portions — Decision of Motions Judge not having regard to
objects of Act — Public access to be reviewed independently of
government — Onus of proving exemption on government
institution claiming it.
This is an appeal from the Trial Division's dismissal of an
application to review CMHC's refusal to provide access to
minutes of its Executive Committee and Board of Directors
meetings. Agendas for a random sampling of meetings were
provided, but release of the minutes was refused on the basis of
paragraph 21(l)(6) of the Access to Information Act and case
law to the effect that the right to disclosure is subject to the
discretion of the head of a government institution.
Held, the appeal should be allowed.
The case of Canada (Information Commissioner) v. Canadi-
an Radio-television and Telecommunications Commission,
[1986] 3 F.C. 413 (T.D.), relied upon by the respondent, is
distinguishable, as the request in that case was for a specific set
of documents rather than, as here, a broad range of documents
to which the mandatory severance provisions in section 25
should have been applied. An examination of the material
should have been made in an attempt to sever any portions
which may have been severable, particularly in light of the
Assistant Information Commissioner's opinion that "disclosure
of the vast majority of the minutes would be innocuous to the
interests-of the corporation". The sample agendas include many
items which cannot in any way be said to be covered under the
rubric of advice to the institution or its Minister, or accounts of
consultations or deliberations by agency officials or employees.
Furthermore, the conclusion of the Trial Division that, once
it is determined that a record falls within the class of records
referred to in subsection 21(1), the right of disclosure is subject
to the head of institution's discretion, does not have regard to
the objects and purposes of the Act. The purpose of the Act is
to provide a means whereby decisions respecting public access
to public documents will be reviewed independently of govern
ment. Section 2 places the onus of proving an exemption on the
government institution. Section 46 allows the Court to examine
any record to ensure that the discretion given to the administra
tive head is exercised on proper principles.
The respondent erred in finding that all the material fell
within the exception in paragraph 21(1)(b) and in failing to
enter into the severance exercise under section 25.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule 1, ss. 2, 4(1), I I, 21(1)(b), 25, 41, 49.
Access to Information Regulations, SOR/83-507, s. 7.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Canada (Information Commissioner) v. Canadian
Radio-television and Telecommunications Commission,
[1986] 3 F.C. 413 (T.D.).
CONSIDERED:
Padfield v. Minister of Agriculture, Fisheries and Food,
[1968] A.C. 997 (H.L.); Oakwood Developments Ltd. v.
Rural Municipality of St. Francis Xavier, [1985] 2
S.C.R. 164; Anisminic Ltd. v. Foreign Compensation
Commission, [1969] 2 A.C. 147 (H.L.).
COUNSEL:
Richard G. Dearden and Neil Wilson for
appellant (applicant).
Barbara A. Mclsaac for respondent.
SOLICITORS:
Cowling & Henderson, Ottawa, for appellant
(applicant).
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from an order of
the Trial Division rendered on February 3, 1987
[Rubin v. Canada Mortgage and Housing Corpo
ration (President) (1987), 8 F.T.R. 230
(F.C.T.D.)]. In that order, the learned Motions
Judge dismissed an application by the appellant
pursuant to section 41 of the Access to Informa-
tion Act, S.C. 1980-81-82-83, c. 111, Schedule I
(the Act).'
The circumstances leading up to the section 41
application may be summarized as follows. The
appellant, on March 6, 1985, applied to the
Canada Mortgage and Housing Corporation
(CMHC) for access to the "Corporation Board/
Executive Committee Meeting Minutes, including
appendices (such as staff reports to the Board)
since 1970 until March 31, 1985." This applica
tion arrived in the National Office of the CMHC
on March 6 as well. By registered letter dated
March 7, 1985, Ms. Lezlie Oler, Coordinator,
Access to Information and Privacy Office of
CMHC, advised the appellant, after quoting para
graph 21(1) (b) of the Act, 2 that: "The Minutes of
the Board of Directors and of the Executive Com
mittee of the Board of Directors contain accounts
of deliberations as defined in Section 21(1)(b). We
are, therefore, unable to provide you with the
information you request."
Ms. Oler had been designated by the respondent
to exercise the powers and perform the duties and
functions assigned to him by the Act. Such delega-
Section 41 reads:
41. Any person who has been refused access to a record
requested under this Act or a part thereof may, if a com
plaint has been made to the Information Commissioner in
respect of the refusal, apply to the Court for a review of the
matter within forty-five days after the time the results of an
investigation of the complaint by the Information Commis
sioner are reported to the complainant under subsection
37(2) or within such further time as the Court may, either
before or after the expiry of those forty-five days, fix or
allow.
2 Paragraph 21(1)(b) reads:
21. (1) The head of a government institution may refuse
to disclose any record requested under this Act that contains
(b) an account of consultations or deliberations involving
officials or employees of a government institution, a Minis
ter of the Crown or the staff of a Minister of the Crown,
if the record came into existence less than twenty years prior
to the request.
tion was made in July of 1983 pursuant to section
73 of the Act.
On March 16, 1985, the appellant complained
to the Information Commissioner of Canada, pur
suant to the provisions of the Act, concerning the
denial of access by CMHC. Following discussions
between the appellant and CMHC, CMHC pro
vided representative samples of the agendas of
several meetings of the Board of Directors of
CMHC during the period August 24, 1976 to
March 21, 1985, and also randomly selected agen
das of the Executive Committee meetings during
the period June 13, 1974 to March 21, 1985. On
October 2, 1985, the appellant requested further
agendas from CMHC and continued to dispute its
refusal to provide the actual Minutes of the Direc
tors' and Executive Committee meetings.
On March 27, 1986, Mr. Bruce Mann, the
Assistant Information Commissioner of Canada,
reported by letter to the appellant (Appeal Book,
pages 16 and 17) with respect to the results of his
investigation of the appellant's complaint. In that
report, he referred to the decision of the Trial
Division in the case of Canada (Information Com
missioner) v. Canadian Radio-television and
Telecommunication Commission, [ 1986] 3 F.C.
413 (T.D.) and advised the appellant that the
CRTC case "had a direct bearing on the approach
which we would take to your request for minutes
of meetings of CMHC." He then went on to state:
I think it is fair to tell you that I had made a finding that the
exemption by C.M.H.C. of all its minutes pursuant to para
graph 21(1)(b) was not justifiable and I had recommended
their disclosure, subject to more specific exemptions which
might be appropriate.... My finding in this case ... remains
unchanged. The C.R.T.C. decision made it clear that the
Court's power to intervene was restricted, but did not affect the
mandate of our office to make whatever findings and recom
mendations we consider appropriate. The C.R.T.C. decision has
of course limited the action we can take after our finding and
recommendation has been made, and so I hope that a compro
mise solution can be worked out.
On the same date, the Assistant Commissioner
also reported by letter CMHC (Appeal Book,
pages 24-28). In that letter he stated, after refer-
ring to the CRTC decision (Appeal Book, page
25):
As a result of the Court's decision, it is clear that the exercise
of discretion to exempt a record under paragraph 21(1)(b) is
not one which the Court will interfere with, so long as the
records fall within the defined class and the head of a govern
ment institution has not acted in some improper manner.
And at page 26 of the Appeal Book, he said:
Although we remain of the view that C.M.H.C. has not pro
vided us with any cogent reasons for the exemption of its
minutes in their entirety, and this is the finding which we will
report to the complainant, it now appears that there is nothing
that we or the complainant can usefully do about it by way of
judicial review.
On April 22, 1986, the appellant made a further
access to information request to CMHC. In
response to that request the following correspond
ence was released:
(a) a letter from the Assistant Information
Commissioner to the respondent dated September
3, 1986 (Appeal Book, pages 34-36 in which he
stated, at page 35):
Assuming that the documents which I inspected are typical of
the 13-odd lineal feet of records which I understand would fall
within the purview of the access request, I do not dispute that
the minutes are indeed accounts of consultations or delibera
tions involving officials or employees ... and thus qualify as
records which may be exempted pursuant to paragrapf
21(1)(b). The issue with which I am faced is whether CMHC
ought to have exercised its discretion in this case in such z
broad fashion. I do not think that it is appropriate to exempt al
of the records from disclosure simply because they can fit
within the class described in paragraph"21(1)(b) which is vers
broad indeed. To do so would render nugatory many other
specific exemptive provisions of the Act and would constitute a
derogation from the principle that necessary exceptions to the
public's right of access to government information should be
limited and specific.
While there may be valid reasons for exempting certain por
tions of the requested records under paragraph 21(1)(b) ... the
remaining portions of the record must be released in accord
ance with the principle of severability at section 25 of the Act
This prospect was discussed with CMHC officials but complete
exemption from disclosure of all the requested records was
maintained.
Based on my review of the sample records, it is my opinion that
disclosure of the vast majority of the minutes would be innoc
uous to the interests of the Corporation.
(b) an edited letter dated September 10, 1985,.
from the General Counsel and Corporate Secre-
tary of CMHC to the Assistant Information Com
missioner (Appeal Book, pages 37-38). The rele
vant information in that letter is to the effect that
the appellant's original request covered thirteen
lineal feet of documents and that the task of
complying with the appellant's access request
would involve approximately three person-months
at a cost to the Corporation of approximately
$4,800, not including copying charges.
(c) a further letter dated April 22, 1986, from
the General Counsel and Corporate Secretary of
CMHC to the Assistant Information Commission
er (Appeal Book, page 44). The pertinent portion
of that letter reads:
We, at CMHC, were also awaiting with great interest the
decision of the Federal Court in the CRTC case. As we have
discussed previously, the Corporation has taken the CRTC's
position that Minutes fall within that class of records within the
scope of paragraph 21(1)(b) of the Access to Information Act.
It is no surprise that we were satisfied with the recent Federal
Court judgement in this matter.
At this point, I cannot foresee Mr. Rubin's complaint being
resolved through mediation, and cannot agree with your
suggestion that "without actual or implied commitment about
disclosure of all of its Minutes, CMHC disclose a sample
portion". The Corporation is not prepared to set a precedent by
disclosing portions of the Minutes to the applicant and at this
point we are inclined to follow the decision of the Federal
Court.
THE ORDER OF THE TRIAL DIVISION
(a) The Section 25 Determination
The Motions Judge was of the view that the
factual situation at bar was "clearly parallel..." to
that in the CRTC case, supra. As a result he
concluded [at page 234] that: "no real distinction
between them is possible" and, as a consequence,
found compelled, albeit somewhat reluctantly, to
follow that decision (see Appeal Book, page 124).
He quoted from the reasons of the Associate Chief
Justice in the CRTC case to the following effect
[at page 420]:
Once it is determined that a record falls within the class of
records referred to in subsection 21(1) the applicant's right to
disclosure becomes subject to the head of the government
institution's discretion to disclose it. In other words the appli
cant does not have an absolute right to disclosure of records
under subsection 21(1).
With every deference, I am unable to agree that
the facts at bar are clearly parallel to those in the
CRTC case. In the CRTC case, the applicant's
request for access to information sought an
account of one specific part of one set of Executive
Committee minutes relative to a decision concern
ing his own application. In that case, there was no
suggestion that the provisions of section 25 of the
Act were engaged. Conversely, in this case, the
request is for a broad range of documents relating
to housing. In my view, section 25 clearly applies
to the facts at bar. It reads as follows:
25. Notwithstanding any other provision of this Act, where
a request is made to a government institution for access to a
record that the head of the institution is authorized to refuse to
disclose under this Act by reason of information or other
material contained in the record, the head of the institution
shall disclose any part of the record that does not contain, and
can reasonably be severed from any part that contains, any
such information or material.
I think it significant to observe that section 25 is
a paramount section since the words "Notwith-
standing any other provision of this Act" are
employed. In my view, this means that once the
head of the government institution has determined,
as in this case, that some of its records are exempt,
the institutional head, or his delegate, is required
to consider whether any part of the material
requested can reasonably be severed. Section 25
uses the mandatory "shall" with respect to disclo
sure of such portion, thereby requiring the institu
tional head to enter into the severance exercise
therein prescribed. It is apparent from this record
that no such examination was made here. CMHC
received the request for information on March 6,
1985. It was refused on March 7, 1985, one day
later. Given the fact that some 13 lineal feet of
documents are involved, it would have been physi
cally impossible to complete the section 25 exami
nation in such a short period of time. Indeed,
counsel for the respondent did not suggest that
such an examination was carried out in this case.
It was her position that the evidence at bar was
"overwhelming that the Minutes of the Board of
Directors and the Executive Committee of CMHC
would be an account of consultations or delibera
tions involving officials or employees of a govern-
ment institution." (See respondent's memorandum
of fact and law, paragraph 41.)
It was her further position that there was no
evidence to suggest that it would be reasonable
under the circumstances to sever any of the infor
mation that falls within the purview of paragraph
21(1)(b). In my view, the record does not support
this position. The Assistant Information Commis
sioner of Canada in his letter to the respondent
dated September 3, 1986, expressed the very defi
nite opinion, based on his review of the sample
records that: "disclosure of the vast majority of the
minutes would be innocuous to the interests of the
Corporation." This considered opinion from a
senior and responsible public official should not be
ignored. Furthermore, the broad exemption
claimed in this case by the respondent does vio
lence to the purposes of the Act as expressed in
section 2 of the Act. 3
In my view, that section provides a right of
access to information in records under the control
of a government institution pursuant to the follow
ing principles:
(a) that government information should be
available to the public;
(b) that necessary exceptions to the right of
access should be limited and specific;
(c) that decisions on the disclosure of govern
ment information should be reviewed independent
ly of government; and
(d) that the Act is intended to complement and
riot replace existing procedures for access to gov-
3 Section 2 reads:
2. (1) The purpose of this Act is to extend the present
laws of Canada to provide a right of access to information in
records under the control of a government institution in
accordance with the principles that government information
should be available to the public, that necessary exceptions to
the right of access should be limited and specific and that
decisions on the disclosure of government information should
be reviewed independently of government.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and
is not intended to limit in any way access to the type of
government information that is normally available to the
general public.
ernment information that is normally available to
the general public.
The broad claim of privilege herein claimed does
not conform to those principles. In particular, the
concept that exceptions to the right of access
should be limited and specific is violated.
When sections 2 and 25 of the Act are read in
context, it is apparent that the respondent's dele
gate erred in failing to comply with the provisions
of section 25. This failure to perform the severance
examination mandated by section 25 is, in my
view, an error in law which is fatal to the validity
of the decision a quo. I reach this conclusion,
assuming for the purposes of this discussion on
severability that all of the material for which the
exemption is claimed is properly sheltered by the
provisions of paragraph 21(1) (b) of the Act.
(b) The Paragraph 21(1)(b) Determination
The Court's review power is set out in section 49
of the Act. The relevant portion thereof reads:
"Where the head of a government institution
refuses to disclose a record requested under this
Act ... on the basis of a provision of this Act not
referred to in section 50, the Court shall, if it
determines that the head of the institution is not
authorized to refuse to disclose the record or part
thereof, order the head of the institution to disclose
the record or part thereof ..." [Emphasis added.]
In my view, section 49 clothes the Court with
jurisdiction to determine whether the head of the
institution is authorized to refuse disclosure. The
discretion given to the institutional head is not
unfettered. It must be exercised in accordance
with recognized legal principles. It must also be
used in a manner which is in accord with the
conferring statute. (Lord Reid in Padfield v. Min
ister of Agriculture, Fisheries and Food, [1968]
A.C. 997 (H.L.) at pages 1030, 1034). The appli
cable legal principles are well stated by Wilson J.
in the Oakwood case 4 when she said that an
4 Oakwood Developments Ltd. v. Rural Municipality of St.
Francis Xavier, [1985] 2 S.C.R. 164, at p. 175.
administrative decision-maker "must be seen not
only to have restricted its gaze to factors within its
statutory mandate but must also be seen to have
turned its mind to all the factors relevant to the
proper fulfillment of its statutory decision-making
function." In the Padfield case, supra, Lord Reid
said, at page 1030:
Parliament must have conferred the discretion with the inten
tion that it should be used to promote the policy and objects of
the Act; the policy and objects of the Act must be determined
by construing the Act as a whole and construction is always a
matter of law for the court.... if the Minister, by reason of his
having misconstrued the Act, or for any other reason, so uses
his discretion as to thwart or run counter to the policy and
objects of the Act, then our law would be very defective if
persons aggrieved were not entitled to the protection of the
court.
Accordingly, it is incumbent upon the institu
tional head (or his delegate) to have regard to the
policy and object of the Access to Information Act
when exercising the discretion conferred by Parlia
ment pursuant to the provisions of subsection
21(1). 5 When it is remembered that subsection
4(1) of the Act confers upon every Canadian
citizen and permanent resident of Canada a gener
al right to access and that the exemptions to that
general rule must be limited and specific, I think it
clear that Parliament intended the exemptions to
be interpreted strictly.
The issue then is whether, in the circumstances
of this case, the delegate of the respondent did
exercise properly the discretion conferred upon
her, in promotion of the policy and objects of this
Act. Her initial duty was to make a determination
as to whether or not the information requested, or
any of it, came squarely within the parameters of
paragraph 21(1)(b). Keeping in mind the sheer
volume of the material involved, it seems clear that
she did not make such an examination and deter
mination. This is also evident from the position
taken by the General Counsel and Corporate
Secretary of CMHC in her letter dated April 22,
5 The categories detailed in subsection 21(1), where the head
has a discretion are to be contrasted with the categories speci
fied in subsection 13(1) of the Act where the head must refuse
disclosure.
1986, to Assistant Information Commissioner
Mann supra, to the effect that the Corporation
took the position, without examination of the ma
terial, that all of the Minutes requested fell within
the scope of paragraph 21(1) (b) of the Act.
The learned Motions Judge stated [at page
233]:
... the applicant, and or at least his representative the Assist
ant Commissioner, has admitted that the documents are prop
erly the type provided for in the exemption paragraph 21(1)(b)
of the Act.
At the hearing of the appeal, counsel for the
appellant took strenuous exception to this finding.
He pointed out that the appellant was not repre
sented by the Assistant Information Commissioner
before the Motions Judge. He also asserted that at
those proceedings in the Trial Division, the appel
lant took the very clear and firm position that not
all of the documents to which access was sought
fell within the scope of paragraph 21(1)(b).
Even a cursory perusal of the agendas of the
meetings of the Board of Directors and the Execu
tive Committee (Appeal Book, Volume 1, Appen
dix I), clearly demonstrates, in my view, that much
of the material requested cannot in any way be
said to fall within the protective umbrella of para
graph 21(1) (b) of the Act. The sample agendas set
out in Volume 1, of Appendix I include many
items which cannot in any way be said to be
covered under the rubric of advice to the institu
tion or to its Minister by officials or employees.
Many of the matters discussed at the meetings
detailed therein are in no way capable of being
included as an account of consultations or deliber
ations by agency officials or employees. Such a
perusal, in my view, lends credence to the view
expressed by the Assistant Information Commis
sioner in his letter of September 3, 1986, to the
respondent (supra) wherein he expressed the view
that "disclosure of the vast majority of the minutes
would be innocuous to the interests of the
Corporation."
However, what is crucial and determinative in
this factual scenario is the failure by the delegate
of the institutional head to enter into the necessary
examination of the material requested in order to
decide what did and what did not fit squarely
within the four corners of paragraph 21(1)(b).
In approving of the course of action of the
respondent's delegate herein, the Motions Judge
followed the decision of the Associate Chief Jus
tice in the CRTC case, supra. Specifically, he
relied on the statement by the Associate Chief
Justice, at page 420, supra, which I repeat
hereunder for convenience:
Once it is determined that a record falls within the class of
records referred to in subsection 21(1) the applicant's right to
disclosure becomes subject to the head of the government
institution's discretion to disclose it.
With every deference, I am unable to agree with
that view of the matter. Such a conclusion fails to
have regard to the objects and purposes of the Act.
The general intent and purpose of the Act, as
expressed in section 2 supra, includes a clear
intention by Parliament to provide a means where
by decisions respecting public access to public
documents will be reviewed "independently of gov
ernment." (Subsection 2(1), supra.) Then in sec
tion 48, it is provided:
48. In any proceedings before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a government institution is authorized to refuse
to disclose a record requested under this Act or a part thereof
shall be on the government institution concerned.
This section places the onus of proving an exemp
tion squarely upon the government institution
which claims that exemption.
The general rule is disclosure, the exception is
exemption and the onus of proving the entitlement
to the benefit of the exception rests upon those
who claim it. Section 46 must also be considered.
It reads as follows:
46. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, in the
course of any proceedings before the Court arising from an
application under section 41, 42 or 44, examine any record to
which this Act applies that is under the control of a government
institution, and no such record may be withheld from the Court
on any grounds.
In my view Parliament enacted section 46 so that
the Court would have the information and ma
terial necessary to the fulfillment of its mandate to
ensure that the discretion given to the administra
tive head has been exercised within proper limits
and on proper principles. Judicial deference to the
exercise of discretion by an administrative tribunal
must, necessarily, be confined to the proper limits
of the tribunal's power of decision. The determina-
tion of those proper limits is a task for the Court.
As was stated by Lord Wilberforce in Anisminic
Ltd. v. Foreign Compensation Commission,
[1969] 2 A.C. 147 (H.L.), at page 208:
The courts, when they decide that a "decision" is a "nullity",
are not disregarding the preclusive clause. For, just as it is their
duty to attribute autonomy of decision of action to the tribunal
within the designated area, so, as the counterpart of this
autonomy, they must ensure that the limits of that area which
have been laid down are observed ... .
For the reasons expressed supra, I have conclud
ed that the delegate of the institutional head did
not conduct the examination necessary to deter
mine whether all the information requested herein
falls within the designated area set out in para
graph 21(1)(b) of the Act. Therefore, her decision
in this respect cannot be allowed to stand.
Accordingly, I find that the respondent's dele
gate erred in law in holding that all of the material
requested herein fell within the exception enun
ciated in paragraph 21(1) (b) of the Act. I also find
that even had there been no error in the paragraph
21(1)(b) determination, the respondent's delegate
committed a second error in failing to enter into
the severance exercise required pursuant to the
provisions of section 25 of the Act.
REMEDY
At the hearing before us, both counsel were of
the view that in the event of a finding of review-
able error, the matter should be referred back to
the CMHC decision-maker rather than to the
Trial Division since the necessary material for a
proper examination to be made was not before the
learned Motions Judge.
Counsel for the appellant also asked the Court
to order that the ordinary fees payable by an
applicant under the Act be waived in this case.
Provision for payment of fees is prescribed by
section 11 of the Act and section 7 of the Regula
tions [Access to Information Regulations,
SOR/83-507]. Since the fees prescribed will be
reflected in the cost of reproduction and since that
cost cannot be calculated until the decision has
been made as to the extent of the production and
the extent of exemption from production, I think
any order as to waiver of fees would be premature.
Accordingly, I would allow the appeal with costs
both here and in the Trial Division on a party-and-
party basis. I would refer the matter back to Ms.
Lezlie Oler, Co-ordinator, Access to Information
and Privacy of CMHC, the designated delegate of
the respondent (or her successor, as the case may
be) for re-examination and re-determination of the
within application pursuant to the provisions of
paragraph 21(1) (b) and section 25 of the Access to
Information Act, on proper principles and on a
basis not inconsistent with these reasons for
judgment.
URIE J.: I agree.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.