Judgments

[1993] 3 F.C. 320

T-2059-91

Canada Post Corporation (Applicant)

v.

Minister of Public Works and Michael Duquette (Respondents)

Indexed as: Canada Post Corp. v. Canada (Minister of Public Works) (T.D.)

Trial Division, Rothstein J.—Toronto, April 1; Ottawa, June 3, 1993.

Access to information — Application for access to documents compiled by Public Works (PWC), for its use in providing property management and related services as agent to principal, Canada Post Corporation (CPC) — Disclosure breach of agency agreement absent overriding statutory requirement — Access to Information Act, s. 4 giving any citizen right to access on request to any record under control of government institution — CPC not government institution; PWC is — Meaning of “control” — Dictionary definitions suggesting wide variety of meanings depending upon circumstances — Scheme of Act to give public access subject to limited, specific exemptions — Case law and scheme of Act not indicating narrow meaning for “records under the control of a government institution” — Analogy between discovery process and access to information invalid — Manner in which information coming into possession of government institution irrelevant to whether subject to disclosure — Act providing complete code for disclosure — Legal or corporeal possession sufficient for application of Act.

This was an application for an initial determination of whether certain documents are “under the control of a government institution” within the meaning of the Access to Information Act, subsection 4(1). Canada Post Corporation (CPC) was not a “government institution” and its records were not subject to disclosure under the Act. Its position was analogous to that of any private citizen. As a department of the government of Canada, Public Works Canada (PWC) was a government institution. CPC retained PWC to manage its real properties and to provide related technical and professional services. The relationship between CPC and PWC was that of principal and agent, and the agency agreement contemplated that PWC as agent would keep all CPC information confidential. In the absence of overriding statutory provisions, PWC could not, of its own volition, disclose CPC information in its possession without breaching the agency agreement. The records requested by a private citizen under the Act, section 4 were compiled by PWC, for its use, in the course of providing services to CPC.

Access to Information Act, subsection 4(1) gives Canadian citizens and permanent residents the right of access to any record under the control of a government institution. The scheme of the Act is that all information under the control of the government shall be subject to the right of access by the public unless it falls under a specific exemption to disclosure stipulated by the Act or is government information to which the Act specifically does not apply. “Control” is not defined in the Act.

The applicant submitted that a record that was in the possesssion of a government institution because of the agency relationship was not under the control of the government institution. It argued: (1) “control” according to its ordinary meaning connotes control in a proprietary sense and some dominance or direction over the thing in question; (2) CPC information is not government information and therefore was not under the control of a government institution for purposes of the Act; (3) “control” in the context of the Act means more than possession; it contemplates the power to use and dispose of information as the purposes of the government institution dictate; (4) even if control is equated with possession, possession must mean legal (in the sense that a party is authorized to deal with the property), not just physical possession. PWC did not have legal possession of CPC records.

Held, the documents requested were “under the control of a government institution” within the meaning of Act, subsection 4(1).

(1) While a principal usually exercises some form of dominance or direction over an agent, the definition of “control” also includes the authority to manage, direct, superintend, administer or oversee. An agent would have such power with respect to its records and documents including those it maintained or controlled for its principal. The dictionary definitions of “control” did not clearly lead to the conclusion that CPC had control in the sense used in the Act over the records in question, and that PWC did not. They did suggest that “control” has a wide variety of meanings depending upon the circumstances in which it is used. Dictionary definitions are merely suggested meanings. The true meaning must necessarily flow from the context within the entire statute. It was not appropriate to rely on a dictionary definition of “control” without more.

(2) “Government information” is not defined in the Act. Nothing in the Act suggests that information other than information pertaining to the government and the workings of government in the possession of the government may not also be government information for the purposes of the Act. In fact, subsection 2(1) suggests that government information means all information in records under the control of a government institution. If this interpretation is correct, the focus should not be on “government information”, but on “control”. The scheme of the Act did not support the proposition that third party information in the possession of a government institution acting as agent for the third party was not subject to the Act at all.

(3) There is no express statement or inference in the Act that “control” is to be modified by some test as to how information is to be used by a government institution or the extent to which a government institution may dispose of it. Nor is there any indication that “control” as used in the Act can be affected by a private agreement between a government institution and a third party. Treasury Board’s guidelines on the Act represented merely Treasury Board’s opinion and were not binding on the Court. Although the definition of “control” therein supported the applicant’s position, the guidelines also said that a record in the possession of or held by a government institution is presumed, in the absence of evidence to the contrary, to be under its control. “Evidence to the contrary” must be construed in light of the words of the Act and case law interpreting it. There were convincing reasons based on the scheme of the Act and dicta in Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports) that “control” contemplates records in the possession of a government institution. “Records under the control of a government institution” was not intended to have a narrow meaning.

(4) The argument that PWC should not be required to disclose documents of which it did not have legal possession was based on an analogy to discovery of documents. That analogy was invalid. The discovery process is adversarial and relevancy is the predominant test for disclosure. Exceptions to production on discovery are guided by these considerations. By contrast, the public interest in disclosure, not the private interest of litigants, is the foundation of the Access to Information Act. While the obligation to disclose under the Act may be broader than that on discovery, the exemptions are different and in some respects more extensive. The manner in which information came into the possession of a government institution is not a consideration in deciding whether or not the information is subject to disclosure under the Act. The considerations for disclosure and confidentiality under the Act constitute a code in themselves which cannot be interpreted by reference to considerations in the discovery process. Possession by a government institution of a record, whether in a legal or corporeal sense, is sufficient for such records to be subject to the Act.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 3, 4, 18, 19, 20, 68 (as am. by S.C. 1990, c. 3, s. 32; 1992, c. 1, s. 143), 69.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38, 39.

Competition Act, R.S.C. 1970, c. C-23 (as am. by S.C. 1986, c. 26, s. 19), ss. 97, 98 (as enacted idem, s. 47).

Competition Tribunal Act, S.C. 1986, c. 26, s. 9(3).

Indian Act, R.S.C. 1970, c. I-6.

Privacy Act, R.S.C., 1985, c. P-21.

The Public Authorities Protection Act, R.S.O. 1970, c. 374, s. 11 (as am. by S.O. 1976, c. 19, s. 1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; (1992), 89 D.L.R. (4th) 218; 3 Admin. L.R. (2d) 242; 133 N.R. 345; Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143; [1988] 5 W.W.R. 151; (1988), 59 Alta. L.R. (2d) 353; 18 F.T.R. 15 (T.D.); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480; (1989), 23 C.P.R. (3d) 297; 24 F.T.R. 62 (T.D.); American Airlines, Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88; (1988), 54 D.L.R. (4th) 741; 23 C.P.R. (3d) 178; 89 N.R. 241 (C.A.).

DISTINGUISHED:

Pacific Press Ltd. v. Vancouver (City), [1989] B.C.J. No. 1107 (S.C.) (Q.L.) (not reported); affd [1990] B.C.J. No. 1688 (C.A.) (Q.L.) (not reported); Berardinelli v. Ontario Housing Corpn. et al., [1979] 1 S.C.R. 275; (1978), 90 D.L.R. (3d) 481; 8 C.P.C. 100; 23 N.R. 298.

AUTHORS CITED

Black’s Law Dictionary, 6th ed., St. Paul, Minn.: West Pub. Co., 1990, “control”.

Canada. Treasury Board. Access to Information and Privacy Policies and Guidelines. Ottawa: Treasury Board of Canada, 1992.

Treasury Board Canada. Interim Policy Guide: Access to Information Act and The Privacy Act, Part II. Canada: Minister of Supply and Services, 1983.

APPLICATION for an initial determination of whether documents relating to properties owned or leased by Canada Post, which is not a government institution, compiled by Public Works as agent of Canada Post were “under the control of a government institution” (Public Works) within the meaning of Access to Information Act, subsection 4(1). The question was answered in the affirmative.

COUNSEL:

John B. Laskin and Mark R. Hemingway for applicant.

Paul J. Evraire and Nanette Rosen for respondent Minister of Public Works.

Timothy G. M. Hadwen for respondent Michael Duquette.

SOLICITORS:

Tory Tory DesLauriers & Binnington, Toronto, for applicant.

Deputy Attorney General of Canada for respondent Minister of Public Works.

Cavalluzzo, Hayes & Shilton, Toronto, for respondent Michael Duquette.

The following are the reasons for judgment rendered in English by

Rothstein, J.: The issue in this case is whether information of a commercial nature concerning a third party, but in the custody or possession of a government institution acting as agent for the third party, is within the control of the government institution and is therefore subject to disclosure pursuant to subsection 4(1) of the Access to Information Act, R.S.C., 1985, c. A-1. Subsection 4(1) states:

4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is

(a) a Canadian citizen, or

(b) a permanent resident within the meaning of the Immigration Act,

has a right to and shall, on request, be given access to any record under the control of a government institution.

The parties, their status in the context of the Access to Information Act and how this issue comes before the Court are set forth in paragraphs 1 to 5 of the agreed statement of facts:

1. Canada Post Corporation (“CPC”) is a federal Crown corporation established pursuant to the Canada Post Corporation Act, R.S.C. 1985, c. C-10. CPC has the mandate to, among other things, establish and operate a postal service for Canada.

2. CPC is not listed in Schedule I to the Access to Information Act, R.S.C. 1985, c. A-1 (the “Act”). CPC is therefore not a “government institution” within the meaning of that term in the Act. It is, accordingly, a “third party” within the meaning of that term in s. 3 of the Act.

3. Public Works Canada (“PWC”) is a department of the government of Canada and is a “government institution” within the meaning of that term in the Act.

4. Mr. Duquette is a Canadian citizen who has made a request under s. 4(1) of the Act for access to certain documents.

5. CPC believes that the documents to which Mr. Duquette has requested access are documents which are under its control, and not under the control of PWC, as that term is used in the Act, and that, accordingly, the Act cannot apply so as to require that the documents be disclosed. Mr. Duquette believes the documents are under the control of PWC and so the Act applies to require disclosure. CPC, PWC and Mr. Duquette have therefore agreed to ask the Court to make an initial determination, on this agreed statement of facts, as to whether the documents in question are under the control of PWC within the meaning of the Act.

The relationship between Canada Post Corporation (“CPC”) and the Minister of Public Works for Canada (“PWC”) is set out in paragraphs 15 to 18, 20 and 22 to 24 of the agreed statement of facts:

15. Upon the coming into force of the Canada Post Corporation Act in 1981, the administration and control of all real property of or leased to Her Majesty in right of Canada of which the Post Office Department was the sole or principal tenant was transferred to CPC.

16. All real property now owned or leased by CPC, including the properties to which the documents to which access has been requested relate, is under the administration and control of CPC.

17. CPC has retained PWC to manage such properties and to provide related technical and professional services.

18. CPC and PWC have entered into two agreements which govern their relationship:

(1) Comprehensive Realty Management and Services Agreement, dated August 30, 1984 (the “1984 Agreement”), as amended from time to time; and

(2) Grants in Lieu of Taxes Management Agreement, dated July 14, 1988 (the “1988 Agreement”).

Documents in relation to CPC properties are kept by PWC pursuant to one or more of these agreements.

…

20. In connection with the properties to which the documents to which access has been requested relate, PWC acts as CPC’s consultant/service agent pursuant to clause 1.0(c) of the 1984 Agreement.

…

22. Pursuant to clause 3.2 of the 1984 Agreement, CPC has instructed PWC, as its consultant/agent, on how to deal with information with respect to CPC leases, and contracting or project matters. A copy of the instructions is attached as Schedule G.

23. The instructions require that under no circumstances is PWC to “release information concerning any CPC lease to anyone without the prior written consent of CPC”.

24. The instructions further require PWC, as CPC’s consultant/agent, not to discuss or impart any information of any kind regarding CPC to anyone outside of PWC. PWC is to treat CPC matters as confidential business information of CPC.

The records in question are described in paragraph 26 of the agreed statement of facts:

26. The records in question in this matter relate to 280 Progress Avenue and 415 Milner Avenue, which, as noted in paragraph 7 above, are owned and leased, respectively, by CPC. The records are compiled by PWC, for their use, in the course of performing the property management and related services for CPC. The records include correspondence between PWC and third parties (generally, contractors) with respect to tenders and work to be performed, and memos and correspondence between CPC and PWC regarding decisions and approval of decisions with respect to work on the properties and PWC internal documents and memos relating to work done by PWC and CPC. Amongst these records are contracts, blueprints, specifications and tender documents. All of the records contain information concerning CPC facilities which are not open to the public and information in respect of which is not generally available.

The applicant submits that the relationship between CPC and PWC is that of principal/agent and, pursuant to such relationship, the records in question are under the control of CPC and not PWC. The applicant says that because the records in question are under the control of CPC and not PWC, subsection 4(1) does not apply to the records and they are not subject to disclosure under the Access to Information Act.

Prior to dealing with the arguments raised by the applicant, I will comment on the status of the parties and the contractual relationship between them. In the material before me, mention was made of the fact that Mr. Duquette is a union representative of the Canadian Union of Postal Workers and that the CPC is a Crown Corporation but not a government institution under the Access to Information Act. Under subsection 4(1) of the Act, the right of access to a record under control of a government institution belongs to Canadian citizens or permanent residents. No other qualification is specified in the Act. While at a policy level it may be argued that the right of access should be conditional, no conditions are specified in the Act. Perhaps CPC views Mr. Duquette in an adversarial role because of his association with the Canadian Union of Postal Workers, but this is not a relevant consideration in deciding whether or not he is entitled to access to the records in question in this case. As long as he is a Canadian citizen or permanent resident, he is entitled to invoke subsection 4(1) of the Access to Information Act.

That CPC is a Crown Corporation is also not a relevant consideration for purposes of the Access to Information Act. Section 3 of the Act defines a “government institution”:

3. In this Act,

…

“government institution” means any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I;

CPC is not listed in Schedule I to the Act. Therefore, its records are not subject to disclosure under the Access to Information Act. In this sense, it is in a position analogous to any private citizen or corporation in so far as this Act is concerned.

“Third party” is defined in the Act in section 3:

3. In this Act,

…

“third party”, in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution.

Since CPC is neither the person that made the request nor a government institution, it is clearly a third party.

PWC, as a department of the Government of Canada, is listed in Schedule I of the Access to Information Act. As such, it is a government institution as defined in the Act.

CONTRACTUAL RELATIONSHIP

The Comprehensive Realty Management and Services Agreement dated April 30, 1984, between CPC and PWC provides in paragraph 1.0(c) that the parties acknowledge:

(c) that the relationship of CPC to PWC is and will be that of principal/client to consultant/service agent in the provision of services and in the management of real property under the administration and control of CPC … .

The relationship of principal and agent has been established by express agreement between CPC and PWC in respect of the management of CPC real property.

The provisions of this Agreement relating to the maintenance and control of records as between CPC and PWC are subsections 5.2 and 5.3.

5.2 PWC shall keep accurate books and records of account in respect of services performed for CPC under this agreement, and shall complete such statements of account for CPC as CPC may require from time to time.

5.3 CPC may, at any reasonable time and with prior notice to PWC, enter PWC’s premises to inspect any books and records of PWC relating to services performed under this agreement, to inspect any other documentation relating to such service, or to perform an audit of all books and records of PWC in relation to the performance of such services. PWC shall allow CPC to copy and take extracts from such books, records, and other documentation and shall assist CPC as requested.

Subsection 5.2 provides that PWC shall keep accounts, books and records of account in respect of services performed for CPC. Subsection 5.3 provides that CPC may inspect books and records of PWC or other documentation relating to services performed by PWC for CPC. It also states that PWC shall allow CPC to copy and take extracts from such books, records and documents.

The Grants in Lieu of Taxes Management Agreement dated July 14, 1988, provides, in respect of books, accounts and records relating to services provided by PWC to CPC under the Agreement:

4.2 P.W.C. (Municipal Grants Division) shall keep separate and accurate books, accounts and records in respect of services performed by it hereunder for C.P.C.

4.3 P.W.C. agrees that the books, accounts and records referred to in section 4.2 shall be the property of CPC and shall be transferred to C.P.C. upon termination of this Agreement.

Pursuant to these provisions, books, accounts and records related to CPC shall be kept separate by PWC and shall be transferred to CPC upon termination of the Agreement. The books, accounts and records, are the property of CPC.

On April 28, 1989, E. C. Kriegler, Vice-President, Real Estate, of CPC wrote to R. S. Lafleur, Assistant Deputy Minister, Realty Services, Public Works Canada, as follows:

It has come to our attention that PWC is proposing to embark on a policy of preparing and making available to the public a list of PWC leases.

This issue is being addressed in a letter from Frank McCarthy (CPC) to Avrum Miller (PWC).

The purpose of this letter is to reiterate the position of CPC that under no circumstances is PWC to release information concerning any CPC lease to anyone without the prior written consent of CPC.

On May 8, 1989, Mr. Lafleur responded to Mr. Kriegler:

PWC will accede to your wish to not include CPC leases in any list to be made available to the public at large.

From time to time, we receive specific requests for lease information from Members of Parliament and other governments and under no circumstances will we release any information on CPC leases without your prior written consent.

On September 18, 1989, an internal memorandum was circulated within PWC on the subject-matter:

Canada Post Corporation

Privacy of Information relating to CPC matters

At page 2 of the memorandum, the following appears:

Stated simply, Public Works Canada is not to discuss or impart any information of any kind regarding CPC to anyone outside of Public Works Canada; in other words we, as agents of Canada Post, are to treat Canada Post Corporation matters as confidential business information of the Corporation, and in a manner consistent with Public Works Canada “protected” category. This is a client/PWC arrangement only, and does not mean security clearance of employees handling CPC information.

This correspondence and memorandum emphasize the principal/agent relationship between CPC and PWC and the agreement between PWC and CPC that PWC, as agent, will treat all CPC information as confidential and not impart the information to anyone outside of PWC.

I am fully satisfied that the relationship between CPC and PWC is that of principal and agent and that the agency agreement contemplates that PWC will keep CPC information confidential. In the absence of overriding statutory provisions, PWC may not, of its own volition, disclose CPC information in its possession. For it to do so would place it in breach of the principal/agent agreement.

The question still remains, however, whether such an agreement, or the principal/agent relationship as such, precludes the operation of the Access to Information Act in respect of CPC information in the possession of PWC.

The scheme of the Access to Information Act is that all information under the control of the Government shall be subject to the right of access by the public unless it falls under one or more of the specific exemptions to disclosure stipulated by the Act. In addition to the exemption provisions (sections 13 to 26), by virtue of sections 68 [as am. by S.C. 1990, c. 3, s. 32; 1992, c. 1, s. 143] and 69, the Act is made expressly not applicable to certain government information, e.g. confidences of the Queen’s Privy Council. Other than the exemption and non-application provisions, there are no other provisions in the Act which restrict its application to information under the control of a government institution.

With particular reference to this case, the Act does not state that it does not apply to information that is in the possession of a government institution acting as agent for a third party principal. The role of the government institution in acquiring or accumulating information is not an express consideration as to whether or not the information is subject to disclosure pursuant to the Act.

THE APPLICANT’S ARGUMENTS

The applicant argues that a record that is in the possession of a government institution because of the principal (third party)/agent (government institution) relationship is not under the control of the government institution. Because control is not defined in the Access to Information Act, the applicant has resorted to various interpretative aids to assist in the consideration of whether or not the term “record under the control of a government institution” used in subsection 4(1) of the Access to Information Act contemplates records in the possession of the government institution acting as agent for a third party.

The applicant makes essentially four arguments:

(1) The definition of control according to its dictionary meaning connotes control in a proprietary sense and some dominance or direction over the thing in question. It is said this type of control resides with CPC and not PWC.

(2) The purpose of the Access to Information Act is to provide a right of access to government information. CPC information is not government information and therefore it should not be considered to be under the control of a government institution for purposes of the Act.

(3) The term “control” in the context of the Access to Information Act contemplates something more than mere possession. It is argued that PWC has only possession and not control of CPC information.

(4) Even if control is equated with possession, possession must mean legal and not just physical possession. It is argued that PWC does not have legal possession of CPC records.

(1)       Dictionary definitions of “control”

The applicant’s first argument is that the definition of “control” according to its ordinary meaning connotes control in a proprietary sense and some dominance or direction over the thing in question. Various dictionary definitions are cited in support of this interpretation. For example, Black’s Law Dictionary, 6th ed. 1990, defines “control” at page 329:

Control, n. Power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee. The ability to exercise a restraining or directing influence over something.

Control, v. To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.

I have considered these and other definitions cited by the applicant. I agree with the applicant that a principal, in a principal/agent relationship, usually exercises some form of control in the form of dominance or direction over an agent and, with reference to this case, as between CPC and PWC, direction over the confidentiality or disclosure of records. However, the definition of “control” also includes the authority to manage, direct, superintend, administer or oversee. An agent would have such power, at least to some degree, with respect to its records and documents including those it maintained or controlled for its principal. Section 5.3 of the 1984 Realty Management Agreement between CPC and PWC provides that CPC may inspect books and records of PWC relating to the Agreement. At any reasonable time and with prior notice, CPC is allowed to copy and take extracts from such records. The implication is that PWC has day-to-day managerial and administrative control over the records.

The dictionary definitions of “control” do not clearly lead me to the conclusion that, in this case, CPC has control, in the sense that word is used in the Access to Information Act, over the records in question and that PWC does not. What the dictionary definitions do suggest is that the term “control” is open to a wide variety of meanings depending upon the circumstances in which the word is used. For one purpose CPC may be said to have control while for another purpose PWC would have control of the records. Based on the dictionary definition of control alone, it might be possible to conclude that because PWC has some control over the records within the meaning of the term in its broad dictionary sense, the records are under its control and are therefore subject to disclosure under the Access to Information Act.

However, as stated by L’Heureux-Dubé J. (dissenting in the result) in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at page 409:

… dictionary definitions are all merely suggested meanings; the true meaning of the word must necessarily flow from its context within the entire statute.

I do not, in this case, find it appropriate to rely on a dictionary definition of the word “control” without anything more. I turn therefore to a consideration of the applicant’s arguments respecting “control” in the context of the Access to Information Act.

(2)       Purpose of the Act

The applicant’s second argument is that the purpose of the Access to Information Act is to provide a right of access to government information under the control of government institutions. Subsection 2(1) of the Act states:

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.

The applicant says that government information is information that pertains “to the government and the workings of government.” Information of CPC in the possession of PWC is not such information.

I agree with the applicant that the purpose of the legislation is to provide a right of access to government information. However, government information is not defined in the Act. While government information would certainly be information pertaining “to the government and the workings of government”, nothing in the Act suggests that any other information in the possession of the Government may not also be found to be government information for purposes of the Act. Indeed, subsection 2(1) seems to suggest that government information means all information in records under the control of a government institution. If this interpretation is correct, then the focus is not on the term “government information” but rather on the word “control” which is of paramount importance.

According to the scheme of the Act, no information under the control of a government institution is excluded from the operation of the Act, ab initio. Rather, all such information is included and then, if an exemption applies, the information is not disclosed.

For example, the Act clearly recognizes that information under the control of a government institution may be information provided by or related to a third party. Subsection 20(2) states:

20.…

(2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.

Subsection 20(2) presupposes that information pertaining to the results of product or environmental testing is under the control of a government institution even though the testing was done and information gathered as a service to a third party for a fee. Such information would be subject to disclosure except for the exemption in subsection 20(2). Such information is initially included before consideration of its exclusion from disclosure under subsection 20(2).

The applicant relied on Berardinelli v. Ontario Housing Corpn. et al., [1979] 1 S.C.R. 275, which was a personal injury case involving a statutory corporation to which The Public Authorities Protection Act [R.S.O. 1970, c. 374] of Ontario applied. Section 11 [as am. by S.O. 1976, c. 19, s. 1] of that Act provided a limitation of six months to bring an action against an authority for breach of a public duty. In Berardinelli it was argued that the six-month limitation period applied only to the public aspects of the Corporation’s operations and not to the private aspects of its operations. Estey J. stated, at pages 283-284:

It therefore follows that the reference in s. 11 to “any statutory or other public duty” applies in the context of s. 6(2) of the Housing Development Act to those aspects of the statutory powers and duties there established which have a public aspect or connotation, and does not comprehend those planning, construction and managerial responsibilities (to paraphrase s. 6(2)) which have a private executive or private administrative application or are subordinate in nature. To read the section otherwise would be to bring within the protective umbrella of the limitation imposed by s. 11 every aspect of the powers enunciated in s. 6(2) including operational matters, however insignificant in the spectrum of management activities for example, and would as already mentioned create different conditions of owner liability for two apparently similar housing facilities.

The applicant argues by analogy that the Access to Information Act should be read to exclude private or non-government information that happens to be in the possession of a government institution. While the analogy which the applicant wishes to advance has some appeal, I do not think it can apply in this case in view of the statutory language of the Access to Information Act. The Act operates notwithstanding any other Act of Parliament. Its scheme is to be wholly inclusive and then to allow for exemptions. This is not a case where, as in Berardinelli, one interpretation would work an unintended hardship. In the case of the Access to Information Act, specific exemptions may justify confidentiality. There is therefore provision for a remedy for a third party such as CPC in the exemption sections.

The purpose of the Act, disclosure subject to limited and specific exemptions, supports non-disclosure of certain third party information in the possession of a government institution based on an exemption. It does not support the proposition that third party information in the possession of a government institution acting as agent for the third party is not subject to the Act at all.

(3) Control in the context of the Act means more than possession

The third argument of the applicant is that control in the context of the Access to Information Act means more than possession. In support of this argument, the applicant argues that control contemplates the power to use and dispose of information as the purposes of the government institution dictate. The applicant further says that since the information in this case was not supplied to PWC by CPC, CPC may not be able to invoke the exemption in paragraph 20(1)(b) of the Act. The applicant also relies on Treasury Board Interim Policy Guide: Access to Information Act and The Privacy Act, Part II which provides at page 9:

Under the control: A record is under the control of a government institution when that institution is authorized to grant or deny access to the record, to govern its use and, subject to the approval of the Dominion Archivist, to dispose of it. Regarding the question of physical possession, a record held by an institution, whether at headquarters, regional, satellite or other office, either within or outside Canada, is presumed to be under its control unless there is evidence to the contrary. A record held elsewhere on behalf of an institution is also under its control.

Finally on this point, the applicant submits that the Privacy Act [R.S.C., 1985, c. P-21], in addition to using the word “control”, speaks of information “held by a government institution” or “under the custody or control” of government institutions.* Similar distinctions in wording are cited in provincial access to information legislation. The applicant says that “control” must therefore require something more than mere possession or custody.

In Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.), an access request was made for disclosure of audited financial statements of certain Indian bands that had been provided to the federal Government pursuant to the Indian Act [R.S.C., 1970, c. I-6]. The bands argued that since the financial statements were obtained by the Government in the context of a trust relationship with the bands, that they were not under government control. Jerome A.C.J. recited the arguments and stated his conclusion, at pages 150-152:

In his oral submissions, counsel for the Band expanded this position to argue that, since the information is governed by the trust relationship, it is not really “under the control” of a government institution. The documents may be in the Department’s possession, but they are not under government control unless government direction can be exercised over them. It is argued that such direction is not possible given the limited purpose for which they were provided and the fiduciary nature of the relationship between the parties.

Some of the other applicants put the case more strongly. It was argued that the financial statements could not be considered “government information” at all as they record the Bands’ own revenues and capital. It was alleged that in the phrase “government information”, the word “government” has a proprietary connotation. It follows that the government may only grant access to records with which it has the legal authority to deal in its sole discretion. In this case, it is submitted, the information, like the funds it describes, belongs to the Bands, not the government. It therefore cannot be said to be “government information”.

The respondent replies that any record in the possession of a government institution is “under its control” within the meaning of subsection 4(1) because it is within the institution’s power to produce. A narrow construction of the term, it is alleged, would be contrary to the spirit and intent of the Act, which are to foster disclosure and access to information. That Parliament intended a broad definition of the word “control” can be seen from the care it took to exempt from disclosure those records under government control in which a specific strong interest lies against disclosure. In the words of the respondent’s written submissions:

The exemption of third party information, as set out in S. 20, addresses the concerns pertaining to information provided to the government in a trust relationship, strikes the balance between the interests in disclosure and “privacy” in the larger sense and sets the exact criteria to be applied in the decision-making process.

It is further submitted that, since the records in question were required by the Department and submitted by the Band to comply with various regulatory and statutory “government” requirements, they should be considered “government information”.

I find I must agree with the respondent on this issue. While the Bands understandably find it repugnant that their private records could be made the subject of an access to information request, the fact remains that, because of the reporting requirements, copies of their financial statements are under government control. To limit the definition of “control” in order to exclude them would be to set a dangerous precedent with respect to the interpretation of this relatively new Act. Fortunately, as the respondent points out, the applicants’ concerns have been dealt with by Parliament in the exemption sections of the Act.

The applicant says that Montana Band of Indians is distinguishable because in that case, the fact that financial statements of the bands were in the possession or control of a government institution was pursuant to a statutory requirement of the Indian Act whereas, in the case at bar, there is no statutory provision governing the relationship between CPC and PWC.

The learned Associate Chief Justice appears to have confined his rationale for finding that the records in that case were under government control by reason of the statutory reporting requirement. However, he also observed that “[t]o limit the definition of ‘control’, in order to exclude them would set a dangerous precedent”. Although this observation was obiter, it suggests support for a broader rather than a narrower definition of the term “control” in the Access to Information Act.

In Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.), the Canadian Football League submitted a brief to the Government of Canada containing information about the CFL and proposed action involving possible legislation, appropriations or both. The material was submitted voluntarily but in confidence. In his decision, Strayer J. stated, at pages 485-486:

The CFL contends that because the document in question here was marked “confidential” and its confidential nature was stressed to the Government at the time of its presentation to the Government, which presentation was voluntary and not mandatory, the document is not “government information” within the stated purpose of the Act in subsection 2(1) nor is it “under the control of a government institution” as referred to in subsections 2(1) and 4(1).

The plain meaning of the language employed in the Act does not suggest that “information”, “government information”, or “record under the control” of the Government must be limited by some test as to how and on what terms the information or record came into the hands of the Government. That is the kind of qualification which the CFL is asking me to create. I can find no basis for doing so. The plain meaning of subsections 2(1) and 4(1) as quoted above is that the Act gives access, subject to many exceptions, to any record, or information in a record, which happens to be within the custody of the government regardless of the means by which that custody was obtained. That is surely the interpretation which is also most consistent with the purpose of the Act. The interpretation advanced by the CFL on the other hand, appears to be inconsistent with paragraph 20(1)(b) which it also relies on: that paragraph obviously assumes that “confidential information supplied to a government institution by a third party” is prima facie within the definition of “record” to which access would otherwise be available were it not for the possible protection of this paragraph. In other words, this exception proves the rule that confidential material supplied by a third party to the Government can form all or part of a “record under the control of a government institution”. It will be noted that the word “supplied” in paragraph 20(1)(b) is not modified by any terms such as “under compulsion”.

The dicta of Strayer J. suggests that control includes custody. He rejects the argument that control is defined by any test as to how information comes into the hands of the Government. Indeed he concludes that the exemption from disclosure in subsection 20(1) of the Act proves the rule that all information supplied to or coming into the hands of the Government is under its control.

I, too, cannot see in the Access to Information Act any express statement or inference that “control” in the Act is to be modified by some test as to how information is to be used by a government institution or the extent to which a government institution may dispose of it. Nor is there any indication that “control”, as used in the Act, can be affected by a private agreement between a government institution and a third party. The scheme is that all information in the hands of the Government is subject to the Act except information expressly exempted.

It may be, as the applicant submits, that CPC may not be able to avail itself of the exemption provided in paragraph 20(1)(b) of the Act because the information in question was not supplied by CPC to PWC. It appears to me that the applicant is arguing that because resort to an exemption provision in the Act may not be had, the Act should be construed so as to exclude the information in question here from the operation of the Act entirely. The issue of the application of specific exemption provisions is not before me to decide in this case. Suffice it to say, whether or not an exemption may or may not be invoked, does not determine the question of the application of the Act.

I now turn to the Treasury Board Interim Policy Guide. I first note that the Interim Policy Guide was superseded by the revised Access to Information and Privacy Policies and Guidelines. The excerpt cited by the applicant from the Interim Policy Guide now appears on pages 13-14 of the revised Guidelines in slightly changed wording:

The term “under the control of a government institution” means that an institution is authorized to grant or deny access to the record, to govern its use, and, subject to the approval of the National Archivist, to dispose of it. A record that is in the possession of or held by an institution, whether at headquarters, regional, satellite or other office, either within or outside Canada, is presumed to be under its control unless there is evidence to the contrary. A record held elsewhere on behalf of an institution is also under its control. It should be noted that archival records held by National Archives are considered to be under the control of that institution. Personal or political papers of ministers dealing with constituency and other matters and ministerial records which do not relate to the administration or operation of the institution for which the minister is responsible are not deemed to be under the control of the institution for purposes of the Access to Information Act.

I do not see any material change to the meaning of the excerpt by the slight change in wording between the Interim Policy Guide and the revision. I accept that the Guidelines may be an aid to the interpretation of the Access to Information Act. I also recognize that the Guidelines represent only the opinion of the Treasury Board or its officials and that they are not binding on government institutions, applicants for access or the Court.

The applicant says that the Guidelines define “control” as the authority to grant or deny access to a record, to govern its use and to dispose of it. He says that since such authority does not belong to PWC in this case, PWC does not have control of the CPC records in question. I accept that in this respect, the Guidelines set forth an approach to the definition of “control” in the Access to Information Act that supports the applicant’s position.

However, the Guidelines go on to say that a record in the possession of, or held by, a government institution is presumed, in the absence of “evidence to the contrary”, to be under its control. Of course, “evidence to the contrary” must be construed in light of the words of the Access to Information Act and the jurisprudence interpreting it, including Montana Band of Indians and Ottawa Football Club. Thus, “evidence to the contrary” could not for example, be based on how information came into the hands of a government institution or could not take the form of a contracting out of the Access to Information Act.

While for other purposes, the Guidelines may be useful, I do not find them of assistance in the consideration of the question of what constitutes control in the context of third party information in the possession of a government institution. In this respect I find the decisions in Montana Band of Indians and Ottawa Football Club to be more specific and instructive.

I now turn to the argument that the Privacy Act and provincial access statutes use the terms “held”, “custody or control”, and “possession” in addition to the term “control”. The applicant suggests this must lead to the conclusion that control as used in the Access to Information Act must mean something narrower and does not contemplate “custody”, “possession” or “held”.

In American Airlines, Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88 (C.A.), it was argued that the right to make representations pursuant to subsection 9(3) of the Competition Tribunal Act [S.C. 1986, c. 26] did not include the right to call evidence. Reliance was placed on the fact that sections 97 and 98 [as enacted by S.C. 1986, c. 26, s. 47] of the Competition Act [R.S.C. 1970, c. C-23 (as am. by S.C. 1986, c. 26, s. 19)], a statute in pari materia, referred to the making of representations and the calling of evidence. It was argued that because Parliament had considered it necessary to refer to the right to call evidence in addition to the right to make representations in sections 97 and 98 of the Competition Act, the right to make representations must be construed narrowly and must exclude the right to call evidence. At pages 100-101 Iacobucci C.J. (as he then was) stated:

It may be, although I refrain from any formal holding on the matter, that Parliament, out of an abundance of caution, has added the “calling of evidence” in sections 97 and 98 to ensure that making representations is not interpreted narrowly by the federal or provincial boards and agencies before which the Director is appearing. In any event, I believe the main task of a court is in each case to ascertain the meaning of a specific section by looking to its wording and context. The fact that Parliament has chosen a formulation of words in another section of a related statute which appears to convey a particular meaning should not of itself displace convincing reasons why the same interpretation should not apply to the section in issue before the court. The point made about sections 97 and 98 is, after all, a rule of interpretation that can be rebutted, and in this case has been, by more persuasive arguments.

In the case at bar, no explanation was provided as to why words such as “held by” or in the “custody or control” were used in the Privacy Act instead of the single word “control”. It may be that such words were used in the Privacy Act for specific purposes or perhaps in an abundance of caution.

My task is to ascertain the meaning of the term “record[s] under the control of a government institution” by looking to the wording and context of the Access to Information Act. I am satisfied there are convincing reasons based on the scheme of the Act and the dicta of Strayer J. in Ottawa Football Club as to why the term contemplates records in the possession of a government institution. I therefore cannot agree with the applicant that the term “record[s] under the control of a government institution” was intended to have a narrow meaning.

The applicant also relies on decisions of the Supreme Court and Court of Appeal of British Columbia in Pacific Press Ltd. v. Vancouver (City). The decision of the Supreme Court of British Columbia was rendered by Campbell L.J.S.C. on June 13, 1989 [[1989] B.C.J. No. 1107 (Q.L.)] not reported, No. A890925 Vancouver Registry. The decision of the Court of Appeal [[1990] B.C.J. No. 1688 (Q.L.)] also not reported, was rendered on July 13, 1990 by Hutcheon J.A. for the Court, Vancouver Court of Appeal Registry, CA011003.

In that case the city of Vancouver performed certain functions for the province of British Columbia. Access to information pertaining to records collected by the city of Vancouver for the province was sought from the city on the basis of a municipal by-law that provided for access to information “held by the City”. Vancouver By-law No. 5591 entitled the Freedom of Information and Privacy By-Law, provided [at page 3 of [1989] B.C.J. No. 1107]:

2. (1) Except as otherwise provided, every person has the right to receive, inspect and examine all information held by the City.

…

(3) If this by-law conflicts with an enactment of the federal or provincial government, the federal or provincial enactment prevails.

The province successfully argued that the information belonged to the province and that Vancouver’s by-law did not apply to it. By analogy, the applicant here argues that the records of CPC do not belong to PWC and are not within the control of PWC.

However, Pacific Press was decided on the basis that the municipal legislation providing for access to information could only be effective within the scope and purpose determined for it by the Province. Campbell L.J.S.C. stated, at pages 9-11 of [1989] B.C.J. No. 1107:

I agree with the respondents in their submission that ownership is the central issue here. The City is a creature of provincial legislation and may only enact by-laws within the scope of the powers delegated to it by the province: Rogers, The Law of Canadian Municipal Corporations (2d ed.) s. 63.11. It would be contrary to its inferior legislative position for the City to be able to legislate so as to control access to documents under provincial jurisdiction or control, in the absence of any implied or express authority to do so …

While it is true that the inspections are carried out by City employees, and the record of those inspections stored on City property, the very fact that the duty to inspect is imposed by provincial legislation, and the medical health officer accountable in this respect to the provincial board, indicates that the enforcement of the Act and regulations made under it remains a matter of provincial jurisdiction … The mere use of municipal employees to perform a task on behalf of the province, or a provincial body, cannot be taken as impliedly expanding the legislative jurisdiction of the municipality.

This decision was upheld by the Court of Appeal. Hutcheon J.A. stated, at page 5 of [1990] B.C.J. No. 1688:

With respect, I think the judge in chambers was correct in his conclusion that the documents in question are not records or documents of the City. The jurisdiction implicit in s. 168 [of the Vancouver Charter] to pass a by-law relating to “any record or document of the city” does not extend to documents that belong to the Board and are assembled for the purposes of the Board.

As I understand the decisions in Pacific Press, they say that since provincial law authorized the city to disclose documents “of the City”, the city does not have jurisdiction to enact a by-law providing for the disclosure of documents of the province and not of the city.

No similar jurisdictional issue arises in the case at bar. There is no jurisdictional limitation on the Government of Canada which would restrict it from ordering disclosure of third party information. I therefore do not find the Pacific Press case applicable to the case at bar.

(4)       Legal Possession

The applicant submits that in the context of discovery of documents in litigation, when possession is spoken of, actual corporeal possession is not meant. Rather, legal possession, meaning that a party is authorized to deal with the property, is contemplated. The applicant says that, although PWC has physical possession of CPC records in this case, it does not have legal possession. Therefore, by analogy, as discovery of the CPC records in this case would not be ordered in an action against PWC, neither should the Access to Information Act apply to such records.

Acceptance of this argument of the applicant requires acceptance of the analogy between discovery of documents in litigation and access to records under the Access to Information Act. I am not satisfied that the analogy is valid. The purpose of discovery is to ascertain information in the knowledge and possession of a party adverse in interest. All relevant information is produceable subject to certain exceptions, e.g. documents in the physical but not legal possession of an agent where the action is against the agent and not the principal.

The discovery process is adversarial in nature and relevancy is the predominant test for disclosure. Exceptions to production on discovery are guided by these considerations. By contrast, access under the Access to Information Act is not an aspect of an adversarial process and relevancy is not a consideration. It is the public interest in disclosure and not the private interest of litigants that is at the foundation of the Access to Information Act. There are many exemptions justifying confidentiality under the Access to Information Act that would not be available in the discovery process.

Under the Access to Information Act, confidentiality may be justified if, for example, disclosure would result in the release of trade secrets of the government (paragraph 18(a)), personal information (subsection 19(1)), trade secrets or financial information of a third party (subsection 20(1)), or internal government advice to a Minister (paragraph 20(1)(a)). These are not reasons for non-disclosure in the usual discovery process. Information that may be a trade secret or financial information of a third party or advice from one employee in a company to another, would have to be disclosed if relevant to the litigation. The difference is, that while under the Access to Information Act the obligation to disclose may be broader than in the case of discovery, the exemptions are different and, in some respects, more extensive.[1]

In my view, one is inevitably drawn back to a consideration of the purpose and context of the Access to Information Act in considering whether or not there must be disclosure of information in the hands of a government institution acting as agent for a third party. Strayer J. in Ottawa Football Club has found that the manner in which information comes into the possession of a government institution is not a consideration in deciding whether or not the information is subject to disclosure under the Act. I would follow that approach and find that the considerations for disclosure and confidentiality under the Access to Information Act constitute a code in themselves which cannot properly be interpreted by reference to considerations in the discovery process. In my view, the fact that a government institution has possession of records, whether in a legal or corporeal sense, is sufficient for such records to be subject to the Access to Information Act.

CONCLUSION

Although I have not made express reference to the arguments of counsel for the respondent in these reasons, I have relied on the submissions made by him to a significant extent.

The application is dismissed with costs.

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