Judgments

Decision Information

Decision Content

T-1042-86 T-1090-86 T-1200-86
Information Commissioner of Canada (Applicant)
v.
Minister of External Affairs (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v. CANADA (MINISTER OF EXTERNAL AFFAIRS)
Trial Division, Jerome A.C.J.—Ottawa, December 2, 1987, March 9 and April 15, 1988.
Access to information — Department of External Affairs invoking Act s. 9(1) to delay access to information concerning free trade negotiations with U.S.A. — Allegation extensions excessive, unjustified — Policy decision to invoke extension provision pending public release of information — Most of material since released — Application to dismiss s. 42 review applications as issue now academic — Whether extensions constituting deemed refusals — Whether Federal Court having jurisdiction to grant declaratory relief in circumstances.
Judicial review — Equitable remedies — Declarations — Access to information — External Affairs stonewalling regarding release of information on free trade negotiations by invocation of Act, s. 9(1) — Whether extensions excessive, unjustified — Whether constituting deemed refusals — Infor mation since released — Application to dismiss s. 42 review applications as academic — Under Act, government institu tions having on-going relationship with Information Commis sioner — Declaration as to requirements for extension assist ing both parties in determining proper course under Act.
Federal Court jurisdiction — Trial Division — Access to information — S. 42 review of s. 9(1) delay in giving access — Information since disclosed — Argument that issue now aca demic — Whether jurisdiction lost — Court having to decide whether deemed refusal — Court's powers under s. 49 — Delayed access subject to judicial review.
These were motions to dismiss applications for review under section 42 of the Access to Information Act. The requestors sought disclosure of information relating to the free trade negotiations between Canada and the United States of Ameri- ca. The Department of External Affairs invoked subsection 9(1) of the Act (which provides for extensions of the time limit to provide access or reasons for denial of access). The reasons
were given in the exact words of paragraphs 9(1)(a) and (b). The requestors complained to the Information Commissioner that the extensions seemed excessive and unjustified. The ensu ing investigation revealed that the Minister would soon be publicly releasing some of the requested studies, but that until that time the Department would be invoking an extension with respect to every request for information relating to the free trade negotiations. Studies not so released would have to be examined in order to determine which exemptions from disclo sure applied. The Information Commissioner concluded that no substantial reasons had been provided and recommended dis closure of the information requested. No further explanation for the extensions was forthcoming. When the extension periods expired, the Commissioner took the position that there had been a deemed refusal to give access under subsection 10(3), and brought these applications for judicial review. Shortly after, most of the information sought by the requestors was released. Exemptions under the Act were specifically claimed for any information the Department continued to withhold.
The respondent argued that the Court had no jurisdiction to review the taking of an extension under subsection 9(1), as the only remedy provided in the Act for a requestor who objects to an extension is to complain to the Information Commissioner. The second argument was based on the use of the present tense of "refuse" in section 49. Arguably, in that the material requested had already been disclosed, there was no subsisting refusal and the Court had lost jurisdiction to review the matter. Finally, it was submitted that a Court should refuse to enter tain an application for declaratory relief when the matter has become academic, unless the declaration would give practical guidance to the parties for their future relations.
Held, the motions should be dismissed.
The first argument foundered on the admission that an unauthorized extension may amount to a deemed refusal. If a refusal to disclose is a prerequisite for the exercise of the Court's jurisdiction under section 42 of the Act, then the Court is required, as part of determining the extent of its own jurisdiction, to decide whether there has been a refusal in each case. Where the application is based on an allegedly unauthor ized extension under section 9, that enquiry consists of deter mining whether the extension was properly taken or whether it amounted to a deemed refusal. The Court must be able to review the extension itself and the reasons given therefor. On the basis of the evidence, it was arguable that the extensions constituted deemed refusals. It was therefore arguable that the Court had jurisdiction to review the decision to take the extensions under section 42.
As to the second argument, jurisdiction was not lost as a result of the release of the records requested. The Court's powers under section 49 are not limited to granting an order to disclose, but include the making of "such other order as the Court deems appropriate". The respondent's interpretation would render such other orders unnecessary as there would always be an existing refusal and the relief sought would
always be disclosure. Mere physical delivery of documents may not always cure an interference with the right to information. By operation of subsection 10(3) and sections 42 and 49, the legislators have ensured that cases of delayed access may also be reviewed by the Court.
The Access to Information Act has established an on-going relationship between the Information Commissioner and every government institution. A declaration as to the requirements for an authorized extension would assist both parties in deter mining their proper course under the Act. The language of the statute was broad enough to embrace the granting of declarato- ry relief even though it may be academic in that access delayed is access denied if the information had a timely significance lost after a certain date.
An order forcing the Department to particularize its reasons for taking the extensions would not be granted as the Act gives the Information Commissioner ample means to ascertain them herself.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 9(1), 10(3), 42, 49.
Federal Court Rules, C.R.C., c. 663, R. 327.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Union of Postal Workers v. Brown, Treasury Board and Public Service Staff Relations Board (1981), 36 N.R. 583 (F.C.A.).
COUNSEL:
M. L. Phelan, P. J. Wilson and Paul B. Tetro
for applicant.
Barbara A. Mclsaac for respondent.
SOLICITORS:
Osier, Hoskin & Harcourt, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: These applications involve information related to the negotiations between Canada and the United States leading to the free trade agreement. Some important preliminary questions have been raised which must be resolved before the applications for review under section 42 can be considered.
By three applications under paragraph 42(1)(a) of the Access to Information Act [S.C. 1980-81- 82-83, c. 111 (Schedule I)] filed May 9, 1986, the applicant seeks a review of deemed refusals to disclose certain information requested under the Act. Most of the material requested was subse quently released by the respondent Department. On November 26, 1986 the respondent brought three preliminary applications for orders dismiss ing the section 42 applications as concerning an issue which is academic and of no practical conse quence. I heard argument on the respondent's applications on January 28, 1987 but reserved judgment pending hearing of the main applica tions. On September 25, 1987 the applicant brought three further preliminary applications under the Federal Court Rules [C.R.C., c. 663], seeking a trial of an issue under Rule 327 or similar alternative relief. Those matters came on for hearing before me at Ottawa, Ontario on December 2, 1987. Oral judgment was rendered on March 9, 1988.
These reasons will deal with both sets of prelim inary matters, but not with the applications for review which have not yet been heard. It was understood by the parties that the applications to dismiss should be considered together with the applications for trial of an issue.
The facts involved in the three files are virtually identical, varying only as to dates. In late 1985 the requestors asked the Department of External Affairs for documents relating to the upcoming free trade negotiations with the United States. As the particulars of the negotiations were not, at that time, public knowledge, it can be assumed that one of the purposes of these requests was to discover more about them. In each case, on the last day of the 30-day period in which the Department was required to respond, the requestor was informed that an extension under subsection 9(1) of the Act would be invoked. One of the extensions was for 60 days, the rest were for 120 days.
9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if
(a) the request is for a large number of records or necessi tates a search through a large number of records and meet ing the original time limit would' unreasonably interfere with the operations of the government institution,
(b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or
(c) notice of the request is given pursuant to subsection 28(1)
by giving notice of the extension and, in the circumstances set out in paragraph (a) or (b), the length of the extension, to the person who made the request is received, which notice shall contain a statement that the person has a right to make a complaint to the Information Commissioner about the extension.
Each requestor received a letter from the Department announcing the extension and citing as reasons the exact words of paragraphs 9(1)(a) and (b). The letters read as follows:
I wish to inform you that an extension of up to 120 days beyond the 30-day statutory limit is required because the Request necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the Department, and consulta tions with other government institutions are necessary to comply with the Request that cannot reasonably be completed within the original time limit. This extension of the time limit is permitted under Section 9(1)(a) and (b) of the Access to Information Act.
The reason given for the 60-day extension on Mr. Cohn's first request is slightly more specific:
I wish to advise you that we are consulting other government institutions concerning the releasability of certain records. Accordingly, as permitted under Section 9(1)(b) of the Act, I am informing you of the necessity for a 60-day extension beyond the 30-day statutory time limit to complete the process ing of your Access Request. Once this consultation has been completed, I will advise you of the outcome.
All of the requestors filed complaints with the Information Commissioner in early 1986. They complained that the 120-day extensions seemed excessive and unjustified as the information must be readily available to department officials. Mr. Cohn also complained that the deadline on his first request, which had been extended 60 days, had now passed.
The Information Commissioner's designated investigator, James Gordon Long, describes in his
affidavit the steps he took with respect to these complaints:
6. On January 29, 1986, I met with the Access Co-ordinator at his offices in the Department of External Affairs to investigate the complaints. At that meeting, the Access Co-ordinator told me that, as of January 29, 1986, the Department had received ten access requests for records related to free trade negotiations with the United States. The Access Co-ordinator informed me during the meeting that the Department had invoked a 120 day extension of time for each of the ten requests.
7. The Access Co-ordinator also informed me during our meet ing that a decision had been made by officials in the Depart ment to invoke an extension for all access requests received by the Department of External Affairs for records relating to the free trade negotiations with the United States.
8. The purpose of our January 29 meeting was to determine from the Access Co-ordinator why the Department invoked the said 120 day extension of time. The Access Co-ordinator informed me at this meeting that it was planned that the Minister of External Affairs would release some of the request ed studies related to the free trade talks in a future public announcement. The Access Co-ordinator indicated that the studies and documents which were requested under the Access to Information Act but not publicly released by the Minister would have to be examined and that a decision would have to be made as to which exemptions from disclosure or exclusions in the Access to Information Act applied.
9. At our meeting on January 29, 1986, the Access Co-ordina- tor proposed to arrange a meeting with Program Division Officers in the Department who were responsible for the requested records to explain the reason for the extensions of time. I agreed to attend such a meeting.
10. On February 6, 1986, I was advised by the Access Co ordinator that the responsible officials in the office of the Task Force Co-ordinator on Free Trade did not have any further information and did not see the need to meet with me.
11. On February 21, 1986, 1 met again with the Access Co-ordinator and officials from his office. At that meeting, I was advised by them that an officer on the staff of the Task Force Co-ordinator on Free Trade had beeen assigned that week to review each access request for records relating to the free trade negotiations with the United States. I was advised that recommendations concerning each request had now been made and that the requests were to be reviewed by legal advisors in the Department and by officials in the Privy Council Office.
12. 1 telephoned the Office of the Access Co-ordinator in the Department on March 10, 1986 to inquire about the status of the access requests. I was advised by an official in the office that no response had yet been made to the Complainant's request.
Following the investigation, an exchange of cor respondence took place between the Information Commissioner and the Department of External Affairs. The Commissioner wrote to the Minister on April 2, 1986 describing the three requests, the responses received and the complaints filed. She indicated that no substantial reasons had been
provided by the Department for the 120-day extensions it had invoked:
The requestors allege that there were few documents and as they were clearly identified retrieval of the requested docu ments should be easy. Our investigation confirms this and attempts at finding explanations for the long delay were not successful. Indeed a meeting planned to give those explanations was cancelled by External Affairs.
During the course of the investigation of these complaints, your officials were asked to substantiate the need for the extensions and the only explanations offered were a reference to section 9 and that directions had been issued to the coordinator to invoke a 120 day extension to all requests on the free trade issue. It appeared that the coordinator had not been briefed or was not authorized to provide our investigator with substantiation. Having received no evidence to justify the extensions, I have tentatively concluded that none exists and in accordance with Section 37(1) of the Access to Information Act, I therefore recommend:
a) that the records requested be disclosed to the complainant and
b) that you give me notice no later than April 8, 1986 of any action taken or proposed to be taken to implement this recommendation or provide reasons why no such action has been or is proposed to be taken.
The Department's reply, dated April 7, 1986, pointed out that it was still well within the dead lines set by the 120-day extensions. The letter concluded as follows:
There appears to be some confusion concerning your state ment that you have received no evidence to justify the exten sions. I am told that the departmental Co-ordinator gave a detailed explanation in his office to your investigator on Janu- ary 29. A further meeting was not held because it was agreed that there was nothing to add to the explanation already given. Nevertheless, the Co-ordinator and other departmental officers have been, and are, available to discuss the situation at any time.
The Commissioner wrote again on April 14 expressing her dissatisfaction with this answer:
As you have pointed out, the extension deadlines have not yet expired, but my concern remains whether the time extensions of 120 days, which formed the basis of the complaints, were justified. Based upon the explanations provided to our inves tigator I do not have sufficient facts on which to make such a judgement [sic], and your letter merely repeated that an expla nation was provided to the investigator on January 29, 1986. My understanding is that the explanations provided at that time were along the lines of those provided in your letter of April 7, 1986 on your file A-180, which indicated that little action was taken on processing the requests pending the estab lishment of the Trade Negotiations Office.
In order to evaluate the validity of the time extensions involved, details are required in regard to each case of the exact volume of records involved, what action was taken from the time the access request was received, when this action was taken, what further action remains to be taken, what consultations have been carried out, when they were carried out, what consulta tions are planned, and how providing these records sooner would unreasonably interfere with the operation of the department.
As stated in my letter of April 2, 1986, as we have not received evidence to justify the extensions I am left with little choice but to conclude that none exists. I therefore request that I be provided with the details requested above by no later than April 18, 1986.
The Department's final response was dated April 18, 1986. It stated, in part:
It seems to me, at this stage, that the important question is to complete the processing of these requests as rapidly as possible, and certainly before the deadlines. We are pressing ahead with this but, despite every effort, the work is not yet completed.
In light of this, I think the 120-day extensions we took for these requests were realistic. A detailed explanation was given to your investigator on January 29 and February 21 at meet ings in our Co-ordinator's office.
In essence, our problem has involved the time required for the establishment by the Government of the machinery for trade negotiations with the United States. Within this context, there was a need for consultation with Ministers and with a number of Departments concerning the releasability of the requested documents. This process in now nearing completion.
No further explanation for the extensions was ever given by the respondent Department. The Commissioner reported to the complainants by letter that her investigation had found no accept able evidence that would justify the need for an extension and that she was recording the com plaints as well-founded. The letters, sent at the end of April and beginning of May, also indicated that the extension periods, justified or not, had now expired and that there had therefore been a deemed refusal to give access under, subsection 10(3). The Commissioner advised the complai nants of their right to judicial review under the Act and offered to bring an application on their behalf. The complainants all consented to this proposal, and the three applications under section 42 were filed on May 9, May 14 and May 26, 1986.
On May 21, 1986 the free trade negotiations began in Ottawa. On the same day most of the information sought by these requestors was
released. Further documents were disclosed on May 29 and 30. Exemptions under the Act were specifically claimed for any information the Department continued to withhold.
The applications filed under section 42 of the Act were for a review of the respondent's "deemed refusals", pursuant to subsection 10(3), to disclose the information requested. Subsections 10(3) and 42(1) read:
10.
(3) Where the head of a government institution fails to give access to, a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
42. (1) The Information Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record; [Emphasis added.]
By the wording of section 42, an application for review must be based on a refusal to disclose. The applicant submits that these requests were subject to two deemed refusals. First, she claims that the extensions invoked under subsection 9(1) were not authorized by that section. If so, the head of the institution was exceeding a time limit set out in the Act and should be deemed to have refused to disclose under subsection 10(3). The respondent concedes, at paragraph 9 of its Memorandum of Points of : Argument, that an unauthorized exten sion under subsection 9(1) can amount to a deemed refusal:
9. With respect to the issue of the reasonableness of the extension of time, or the issue of whether or not the criteria set out in paragraphs 9(1)(a) or (b) of the Act are met, the Respondent concedes that if an extension is unreasonable or if the criteria for extension are not met, the extension is not authorized by the Act, and there will be a deemed refusal.
Second, there was clearly a deemed refusal when the extended deadlines were exceeded by the Department. This is admitted by the respondent at paragraph 8 of its Memorandum of Points of Argument:
8. With respect to item (i), it has been conceded that there was unquestionably a deemed refusal in each case when the Respondent failed to reply to the request within the extended time period.
Given these concessions, the applicant asks me to review the taking of the extensions under section 42. It is argued that unless the Court has this power, the extension power will be invoked repeat edly by departments seeking to delay disclosure of information until after a critical date. Such a proceeding would frustrate the right to timely disclosure. In addition, according to the applicant, it should make no difference to the Court's power of review that the requested documents have already been released in this case. If the subse quent release of requested documents is permitted to cure an unjustified extension or delay, no remedy will remain for requestors who are denied access until the passage of time has rendered worthless the information sought. Finally, the Information Commissioner urges that the Court's powers under section 49 are quite broad enough to encompass the relief she seeks.
The respondent asks me to dismiss the section 42 applications for three basic reasons:
1) The Court has no jurisdiction to review the taking of an extension under subsection 9(1) as the only remedy provided in the Act for a requestor who objects to an extension is to complain to the Information Commissioner. That Officer has suffi cient powers to properly address such a complaint and to bring any abuses of the extension power to the attention of Parliament. There is no need to impute to the legislators an intention that the Court also be empowered to review a decision under section 9. Such a review is not mandated by the plain meaning of the statute.
2) Since the material requested has already been released, there is no longer any refusal to disclose.
Therefore, the Court has no jurisdiction whatever in this case as the power to review is dependent on a subsisting refusal.
3) If the Court does have jurisdiction to hear these applications, the relief claimed is unavail able. The powers under the Act do not extend to the granting of a declaration, which is the only remedy left to the applicant. Even if they do, no useful purpose could be served by granting such an order in this case.
The respondent's first contention appears to founder on its own admission that an unauthorized extension may amount to a deemed refusal. If a refusal to disclose is a prerequisite for this Court to exercise its jurisdiction under section 42 of the Act, then the Court is required, as part of deter mining the extent of its own jurisdiction, to decide whether there has been a refusal in each case. Where the application is based on an allegedly unauthorized extension under section 9, that enquiry consists of determining whether the exten sion was properly taken or whether it amounts to a deemed refusal. To perform that task, it is inesca pable that the Court must be able to review the extension itself and the reasons given therefor.
On the basis of the evidence already contained in the record, much of which is quoted above, it is at least arguable that the extensions in this case constituted deemed refusals. It is therefore arguable that this Court has jurisdiction to review the decision to take the extensions under section 42. No more determinative finding on this point is needed in order to dispose of the motions to dis miss. A full exploration of extensions and their reasons must wait until the applications for review are heard.
The respondent's second and major argument is that, because the material requested has been dis closed, the Court no longer has jurisdiction to review either form of deemed refusal, as there is no longer any refusal to review. It is submitted that disclosure cures any previous refusals and removes the Court's jurisdiction under sections 42 and 49. Section 49 reads:
49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof 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, subject to such conditions as the Court deems appro priate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate. [Emphasis added.]
The respondent submits that since the words "refuses" and "is not authorized to refuse" are used in section 49 in the present tense, the Court's jurisdiction to review is dependent on an outstand ing refusal to disclose.
I do not draw any such implication from the use of these words. I would agree that there has to have been a refusal of some kind for the Court's jurisdiction to arise (including, of course, a deemed refusal). However, I do not believe that jurisdiction is lost by the release of the records requested. The Court's powers as described in section 49 are not limited to granting an order to disclose. They expressly include the making of "such other order as the Court deems appropri ate". If the interpretation proposed by the respondent were the correct one, it is hard to imagine cases where any other order would be necessary. There would always be an existing refusal and the relief sought would always be disclosure. It appears to me that Parliament has contemplated that in a statute which establishes a right to information there will be occasions on which mere physical delivery of documents will not cure an infringement of that right. By operation of subsection 10(3) and sections 42 and 49 the legis lators have ensured that cases of delayed access may also, in some circumstances, be reviewed by the Court. I do not find that release of the docu ments has removed the Court's jurisdiction to entertain these applications.
Finally, the respondent submits that, generally speaking, a Court will refuse to entertain an application for declaratory relief when the matter has become academic, unless the declaration would serve a useful purpose by giving practical guidance to the parties in respect of future rela tions, or situations which might subsequently arise.
It cites in support of this position the case of Canadian Union of Postal Workers v. Brown, Treasury Board and Public Service Staff Rela tions Board (1981), 36 N.R. 583 (F.C.A.). In that case certain questions concerning the powers of the PSSRB, which arose out of a postal strike, had been resolved by subsequent legislation settling the strike. Nevertheless, the Federal Court of Appeal decided [at page 586] that the action for a decla ration should proceed because, despite its "theoretical" nature, it was
... an important matter capable of affecting the future rela tions of the parties, and one which probably could only be decided by the court in the context of proceedings lacking any immediate practical significance.
Those words seem to me to exactly describe this case. By the terms of the Access to Information Act there is an on-going relationship between the Information Commissioner and every government institution. That is evidenced by the presence in most departments of an Access to Information Co-ordinator whose job is to facilitate requests for information to that department and to handle inquiries from the Commissioner's office. The two parties to this application have therefore a real interest in obtaining guidelines to assist their future relations. Any taking of an extension may be the subject of a complaint to the Commissioner and a subsequent investigation. A declaration as to the requirements for an authorized extension would assist both parties in determining their proper course under the Act.
Indeed, this question is more likely to arise in situations where the order sought will lack any more practical consequence. The concern here is with delay, not with an outright refusal to release information. It is not disputed that in some cases access delayed is access denied, particularly where information has a timely significance which will be lost after a certain date. If "practical conse quence" in this context is deemed to mean the ability of the Court to order release of documents currently withheld, then it is true that this question will rarely arise in proceedings leading to that relief. The most common conditions for a com plaint of this kind is where an extension has been
taken so that release may lawfully be postponed until after the crucial date. In such circumstances, by the time the matter comes on for hearing before the Court, the documents will almost always have been released.
In the result, therefore, while the order which results from these applications may very well be declaratory in nature, I am not prepared to find, at this preliminary stage, that the language of sections 42 and 49 excludes that possibility. Indeed, the final words of section 49 are quite broad enough to embrace this sort of order and I find nothing in the statute to support the contrary intention. Upon the particular facts of this case, such an order may be entirely appropriate.
I turn now to deal with the applicant's prelim inary applications. Having found that the review process under section 49 should proceed, and is broad enough to encompass the order sought, it would be inappropriate for me to order the trial of an issue. I am aware that the notices of motion list, in addition, a number of alternative forms of relief. These include requiring the respondent to file a statement of defence, ordering the respondent to produce witnesses for cross-examination, and "such other order as may be just to require the respondent to disclose its reasons for invoking and its use of the 120-day extension of time to respond". The Information Commissioner clearly desires a Court order forcing the Department to particularize its reasons for taking the extensions. I am not prepared to make such an order. The Information Commissioner has no need of the Court's assistance in order to establish the reasons behind the decision to extend time limits in this case. That is her job, mandated by statute, and she has been given ample means to carry it out.
The respondent, in turn, is free to decide wheth er and to what extent he wishes to counter the
applicant's evidence—always given the risk that, unless challenged, the applicant's case will suc ceed. The applicant argues that the Court cannot undertake a proper review of the deemed refusals without all the available evidence as to why the extensions were taken. I do not find it necessary for a review under section 42 to deprive the respondent of the right to make his case as he sees fit. The normal powers and procedures provided by the Access to Information Act are quite sufficient for the proper conduct of a review of these matters.
That said, however, I will repeat what I men tioned in my oral reasons: it would greatly assist the resolution of this matter on the merits if more complete reasons for the extensions were provided. As a result, while I am not prepared to grant the applicant's preliminary motions, I would urge respondent's counsel to seriously consider filing further affidavit evidence.
For the above reasons, an order will go dismiss ing both sets of preliminary applications. Hearing of the original applications for a review under section 42 may proceed in the usual manner. Costs in the cause.
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