T-1202-86
Société de Transport de la Communauté Urbaine
de Montréal (Applicant)
v.
Honorable Thomas McMillan, Minister of Envi
ronment Canada (Respondent)
and
Attorney General of Canada (Respondent)
INDEXED AS: COMMUNAUTÉ URBAINE DE MONTREAL
(SOCIÉTÉ DE TRANSPORT) V. CANADA (MINISTER OF
ENVIRONMENT)
Trial Division, Dubé J.—Montréal, October 28;
Ottawa, November 5, 1986.
Access to information — Application to review decision to
release information supplied to respondent by applicant
Regional Director who made decision not designated by order
of Minister pursuant to s. 73 of Act — Whether decision taken
by proper authority — Non-applicability of theory of implied
delegation — Decision set aside — Access to Information Act,
S.C. 1980-81-82-83, c. 111 (Schedule I), ss. 2, 3, 20(1), 28, 73.
Environment Canada received an application pursuant to the
Access to Information Act requesting information earlier sup
plied to the Department by the Montréal Urban Community
Transit Corporation. In its reply to the third party notice sent
by the Department, the Corporation opposed such a disclosure.
The Regional Director of the Department for the Montréal
region nevertheless decided to release the information on the
basis that it did not come within any exception to the Act. The
issue is whether the Regional Director was entitled to make the
decision on behalf of Environment Canada.
Held, the decision is set aside and the case referred back to
the Minister.
Paragraph 28(5)(b) requires the institution head to decide
whether to disclose the record. The institution head of Environ
ment Canada is the Minister himself. Section 73 gives the
Minister the power to delegate and a specific method of doing
so, namely "by order". It was admitted that the Minister had
not delegated any powers to the Regional Director when he
made his decision.
Respondent's argument that the Regional Director had suffi
cient authority in accordance with the theory of implied delega
tion must be rejected. While current court decisions demon
strate a more flexible approach to the possibility of implied
delegation of governmental duties, such delegation must not
conflict with the intention of the legislature. The scheme of the
Act indicates that the legislature intended to confer on the
Minister himself a considerable discretionary power. Section 73
must be analyzed in that context and be seen as restricting the
Minister to delegating his authority in a specific manner, that
is, by order. Therefore, as the Regional Director was not
authorized by an order from the Minister, he had no authority
to decide to disclose the information.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ramawad v. Minister of Manpower and Immigration,
[1978] 2 S.C.R. 375.
CONSIDERED:
Carltona, Ltd. v. Works Comrs., [1943] 2 All E.R. 560
(C.A.); Ahmad v. Public Service Commission, [1974] 2
F.C. 644 (C.A.); R. v. Harrison, [1977] 1 S.C.R. 238.
COUNSEL:
Daniel Robert for applicant.
Michelle Joubert and Marcelle Bourassa for
respondents.
SOLICITORS:
Nadeau, Robert, Montréal, for applicant.
Deputy Attorney General of Canada for
respondents.
Lang Michener Lash Johnston, Ottawa, for
Information Commissioner.
The following is the English version of the
reasons for judgment rendered by
Dust J.: This is an application to review a
decision by Environment Canada to proceed with
the disclosure of certain information earlier sup
plied to that Department by the applicant. The
proceeding at bar concerns in particular the first
part of this application, as to the legality of the
procedure followed by the respondent, and specifi
cally the letter of May 7, 1986 signed by Georges
Mezzetta, Regional Director of the Department
for the Montréal region. The relevant paragraph of
the said letter reads as follows:
[TRANSLATION] We have examined your arguments and
found that the information disclosure of which has been
requested is not covered by an exception pursuant to subsection
20(1) of the Access to Information Act.
The aforesaid subsection 20(1) provides that the
head of a government institution shall refuse to
disclose records in certain cases. Section 3 of the
Access to Information Act' defines "head" in
respect of a government institution as follows:
"head", in respect of a government institution, means
(a) in the case of a department or ministry of state, the
member of the Queen's Privy Council for Canada presiding
over that institution, or
(b) in any other case, the person designated by order in
council pursuant to this paragraph and for the purposes of
this Act to be the head of that institution.
As the institution in question here is a depart
ment, the head of Environment Canada is the
Minister himself. The power of a head of a govern
ment institution to delegate is covered by section
73:
73. The head of a government institution may by order
designate one or more officers or employees of that institution
to exercise or perform any of the powers, duties or functions of
the head of the institution under this Act that are specified in
the order.
Counsel for the respondent admitted at the start
of the hearing that, on the date of the aforesaid
letter, namely May 7, 1986, the Minister had not
delegated any powers to the Regional Director,
Georges Mezzetta, by order in council. Counsel for
the applicant, as might be expected, asked that the
said decision be set aside.
For a clear understanding of the problem it is
necessary to review the essential facts of the case
at bar and consider them in relation to the scheme
of the Act.
As can be seen from the affidavit of its Sec
retary, Jean Y. Nadeau, the applicant
("S.T.C.U.M.") is a public corporation created
pursuant to the Act respecting the Communauté
urbaine de Montréal 2 and its function is to provide
public transportation within the boundaries of the
Communauté urbaine de Montréal. On December
18, 1985 Environment Canada received an
application pursuant to the Act requesting a list of
electrical equipment containing PCBs, their loca
tion in the city of Montréal territory and their
volume in PCBs. This information had already
been provided to the Department by the
S.T.C.U.M.
S.C. 1980-81-82-83, c. 111 (Schedule I).
2 R.S.Q., c. C-37.2.
The notice from the Department to the
S.T.C.U.M. constituted a notice to third parties
within the meaning of section 28 of the Act
Subsection 28(1) provides that the head of a gov
ernment institution who intends to disclose any
record must, if he has reason to believe that the
record contains trade secrets or other information
described in section 20, give the third party written
notice within thirty days after the request is
received of his intention to disclose the said record.
Under paragraph 28(5)(a), the institution head
must give the third party twenty days to make
representations as to why the record should not be
disclosed.
On January 16, 1986 the S.T.C.U.M. informed
the Department of its objections to such a disclo
sure "on grounds relating to public safety, the list
of electrical equipment containing PCBs and their
location in the territory of the city of Montréal"
The S.T.C.U.M. further observed that it "feels
that the consequences will be damaging ... all this
equipment could be vulnerable to sabotage or
vandalism".
Under the provisions of paragraph 28(5)(b), the
institution head is required to make a decision
within thirty days after the aforesaid notice is
given as to whether to disclose the record and give
notice of his decision to the third party. It is this
decision which was given to the S.T.C.U.M., not
by the head of the institution, the Minister, but as
mentioned above by the Regional Director.
At this point it should be noted that the Act
contains a clause setting out the purpose of this
legislation. The existence of such a clause is worth
emphasizing since it is quite rare and therefore
significant. The two subsections of section 2 are
reproduced below:
2. (1) The purpose of this Act is to extend the present laws of
Canada to provide a right of access to information in records
under the control of a government institution in accordance
with the principles that government information should be
available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the
disclosure of government information should be reviewed
independently of government.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and is
not intended to limit in any way access to the type of govern
ment information that is normally available to the general
public.
It is thus clear from this statement of principle
that the purpose of the Act is to give the public
greater access to government records. On the other
hand, the necessary exceptions to this wide access
must be specific and limited, since "decisions on
the disclosure of government information should
be reviewed".
It should also be noted that the Act reserves
important decisions for the "head . .. of a govern
ment institution". Finally, section 73 gives the
head the power to delegate and a specific method
of doing so, namely "by order".
The first reaction of counsel for the applicant,
and mine as well, was that the legislature does not
speak in vain: if it indicates a specific method of
delegation, this is the method which the head must
follow.
Counsel for the respondents, on the other hand,
cited Carltona, Ltd. v. Works Comrs. 3 and the
theory of implied delegation which has been to
some extent adopted by contemporary judgments
of Canadian courts. It is thus necessary to review
as briefly as possible the background and nature of
the delegation of administrative powers.
In principle, legislation confers powers on an
individual. However, the complexity and diversity
of the duties assigned to administrators in a
modern state inevitably require that certain powers
be delegated to subordinates. The head of a
department obviously cannot perform all the tasks
assigned to him personally. His effectiveness will
thus be enhanced by delegating the exercise of his
duties. In some statutes this power is expressly
mentioned. However, in the absence of any provi
sion in this regard it is generally assumed that at
least some administrative duties can be delegated
by implication.
As Professor Patrice Garant observes in his text
Droit Administratif, 2nd ed., 1985, at pages 266 et
seq., current court decisions appear to be taking a
much more flexible approach to the possibility of
implied delegation of governmental duties. The
writer refers in particular to Ahmad v. Public
3 [1943] 2 All E.R. 560 (C.A.).
Service Commission, 4 in which the Federal Court
of Appeal adopts the rules stated by Lord Green in
Carltona, cited above, a judgment of the House of
Lords. Essentially what Lord Green said was that
in the administration of government in England
the functions which are given to Ministers are so
multifarious that the powers are normally exer
cised under the authority of Ministers by respon
sible officials of the department: [at page 651]
"Public business could not be carried on if that
were not the case". However, the Minister is
responsible to Parliament, and must answer to it
for the actions of his subordinates.
In Ahmad, cited above, the Federal Court of
Appeal per Jackett C.J. applied the same princi
ples to the responsibilities of the deputy head of a
Canadian department. This official is responsible
for giving personal attention to all matters
involved in administering the department, and [at
page 651 ] "there is a necessary implication, in the
absence of something expressly or implicitly to the
contrary, that ministers' powers, and deputy minis
ters' powers, are exercised on their behalf by their
departmental organizations as long as they are of
an administrative character".
This approach is also taken by the Supreme
Court of Canada in R. v. Harrison,' and Dickson
J. [as he then was] observed that [at page 246]
"any other approach would but lead to administra
tive chaos and inefficiency".
On the other hand, the Minister's power to
delegate cannot be unlimited and must not conflict
with the intention of the legislature. In Ramawad
v. Minister of Manpower and Immigration, 6 the
Supreme Court of Canada again discussed this
problem and observed that though the power of
delegation is often implicit, it all depends on the
legislation. At page 381, Pratte J. referred to the
observation by Dickson J. in the above-cited case:
Whether such power exists however or, in other words, whether
it may be presumed that the act will be performed not by the
Minister but by responsible officers in his Department will
depend on the intent of Parliament as it may be derived from,
' [1974] 2 F.C. 644.
5 [1977] 1 S.C.R. 238.
6 [1978] 2 S.C.R. 375.
amongst other things, the language used in the statute as well
as the subject matter of the discretion entrusted to the Minis
ter. [My emphasis.]
In that case the Supreme Court allowed the appeal
and vacated the decision of the Special Inquiry
Officer.
In his text on administrative law mentioned
above, the writer Patrice Garant formulates eight
rules to be used as a legal basis for the delegation
and subdelegation of powers. The third rule
applies here:
[TRANSLATION] In the case of a government department,
the courts have held that implicit subdelegation of the Minis
ter's discretionary powers to his subordinates is perfectly legal,
unless it appears from the scheme of the Act and regulations
that the legislature intended to confer a wide discretionary
power to be exercised by the Minister personally. [My
emphasis.]
In my view, the scheme of the Access to Infor
mation Act indicates that the legislature intended
to confer on the Minister a considerable discretion
ary power to be exercised by him personally, or at
least to be closely controlled by him. As mentioned
above, the purpose of the Act is to provide greater
access to records of the federal government and it
specifies that the number of necessary exceptions
is to be controlled by the head of the department.
Moreover, several sections, including the sections
applicable to the decisions at issue here, state that
it is the head who must decide, and in section 3 the
"head" is specifically and expressly defined as the
Minister in the case of a department. Finally,
section 73, recognizing the great responsibility of
the Minister, authorizes him to delegate his au
thority in a specific manner, that is by order, and
therefore does not allow officials to assume for
themselves an implicit right to act in his name.
I accordingly conclude that as the official
Georges Mezzetta was not authorized by an order
from the Minister, he had no authority to decide
that the relevant information was not covered by
an exception under section 20(1) of the Access to
Information Act. His decision must be set aside.
The case is therefore referred back to the Minister
to be decided by him personally or for him to
authorize an official to do so by order.
The application is allowed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.