T-276-85
Information Commissioner (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: INFORMATION COMMISSIONER (CANADA) v.
CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION)
Trial Division, Jerome A.C.J.—Ottawa, Novem-
ber
27, 1985 and May 2, 1986.
Access to information — Applicant for permanent residence
denied access to immigration file and record on ground neither
Canadian citizen nor permanent resident — Access to same
record requested by applicant for permanent residence's hus
band, Canadian citizen and sponsor of permanent residence
application, with signed consent of wife to release to husband
of document and information about her relating to immigra
tion matters — Only 5 of 200 pages released — Application
under Act s. 42(1)(a) for review of refusal — Act s. 19(2) not
conferring discretion to refuse disclosure when, as here, all
conditions met — Applicable construction rule.• enabling words
always compulsory where effectuating legal right — Purpose
of legislation to codify public's right to access to information
held by government — Exemptions should be exceptional and
restricted to those set out in statute — Application allowed —
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 4, 19, 42(1)(a), 48, 49 — Privacy Act, S.C.
1980-81-82-83, c. 111, Schedule II, s. 3.
Immigration — Applicant for permanent residence denied
access to immigration file as neither Canadian citizen nor
permanent resident — Husband a Canadian citizen — Wife
giving signed consent for release of information to husband —
Only 5 of 200 pages released — Whether head of government
institution having discretion not to disclose personal informa
tion — Purpose of legislation considered — Minister ordered
to disclose records upon application under Access to Informa
tion Act, S.C. 1980-81-82-83, c. 111, Schedule I, s. 42(1)(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Maple Lodge Farms Ltd. v. R., [1981] 1 F.C. 500
(C.A.), affirmed [1982] 2 S.C.R. 2; Julius v. Oxford
(Bishop of) (1880), 5 App. Cas. 214 (H.L.); Labour
Relations Board v. The Queen ex rel. F.W. Woolworth
Company Limited and Agnes Slabick and Saskatchewan
Joint Board, Retail, Wholesale and Department Store
Union, [1956] S.C.R. 82; Maislin Industries Limited v.
Minister for Industry, Trade and Commerce, [1984] 1
F.C. 939 (T.D.).
COUNSEL:
Bruce Mann for applicant.
Barbara A. Mcisaac for respondent.
SOLICITORS:
Legal Counsel, Information Commissioner of
Canada 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.: This application under para
graph 42(1)(a) of the Access to Information Act
[S.C. 1980-81-82-83, c. 111, Schedule I] came on
for hearing at Ottawa, Ontario, on November 27,
1985. The facts are not in dispute and are con
tained in a Statement of Agreed Facts dated July
15, 1985, which reads, in part:
1. On May 23, 1984, the Employment and Immigration Com
mission received a request pursuant to the Privacy Act from
D.F., a Canadian Citizen, requesting as follows:
"I request full access to and disclosure of the immigration
file relating to my sponsorship of my wife's application for
permanent residence status in Canada. The Canadian Immi
gration Commission file number at the Vancouver office for
the part of this file held there is 5133-15-6763. The Canadi-
an Consulate General, Immigration Affairs, file number for
that part of this file held in Seattle is 6054-B0138-5657. My
wife's name is P.F."
2. By letter dated July 13, 1984, the said D.F. was given all
personal information relating to him. Personal information
relating to P.F. was exempted from disclosure pursuant to
section 26 of the Privacy Act.
3. On May 23, 1984, the Employment and Immigration Corn-
mission received a request pursuant to the Privacy Act from
P.F. requesting as follows:
"I request full access to and disclosure of the immigration
file and record. The Canadian Immigration Commission file
number at the Vancouver office for the part of this file held
there is 5133-15-6763. The Canadian Consulate General,
Immigration Affairs, file number for the part of this file held
in Seattle is 6054-B0138-5657. Access is requested to the
whole of the records and files at these offices, including all
correspondence, memoranda, and all other documentary ma
terial relating to myself, my immigration matters, my
application for permanent residence, and the issues of my
marital status in Canada, and whether I have been previously
married in the Philippines."
4. By letter dated July 13, 1984, P.F. was denied access to the
personal information requested by her on the basis that she was
not a Canadian Citizen or Permanent Resident as required by
subsection 12(1) of the Privacy Act.
5. On May 23, 1984, the Employment and Immigration Com
mission received a request pursuant to the Access to Informa
tion Act from D.F. requesting as follows:
"The record of which and to which access is requested is the
immigration file relating to my sponsorship of the application
for permanent residence by my wife, P.F. The Canadian
Immigration Commission file number at the Vancouver
office for the part of the record there is 5133-15-6763. The
Canadian Consulate General, Immigration Affairs, file
number for the part of the record being held by that office in
Seattle is 6054-B0138-5657. Access is requested to the whole
of the record at these offices, including all correspondence,
memoranda, and all other documentary material relating to
myself, my sponsorship of my wife's application, the related
immigration matters, and the allegation being made by the
Canadian Immigration Commission that my marriage to my
wife is defective or void in some way due to her alleged
previous marriage."
6. By letter dated July 13, 1984, the said D.F. was notified that
the information he requested constituted personal information
which should be accessed under the Privacy Act, and that, since
he had submitted a request under the Privacy Act, he would
receive all personal information to which he was entitled in
response to his Privacy Act request.
7. On may 23, 1984, the Employment and Immigration Com
mission received a request pursuant to the Access to Informa
tion Act from the Complainant, Gerald G. Goldstein. That
request is the request referred to in the Affidavit of Douglas W.
McGibbon.
8. The said Gerald G. Goldstein is a Barrister and Solicitor
practicing in the Province of British Columbia who represents
the said P.F.
Together with his request for access, the complai
nant submitted a document signed by P.F. con
senting to the release to the complainant of docu
ments and information relating to her immigration
matters. On July 13, 1984 the respondent
informed the complainant that the information
which he sought could not be obtained under the
Access to Information Act because it was personal
information about another person. A complaint
was lodged with the Information Commissioner
who, following an investigation, recommended that
the information be released. The respondent subse
quently provided the complainant with access to
documents consisting of 5 pages, but refused to
disclose in excess of 200 pages of documents. The
applicant seeks a review of that refusal under
paragraph 42(1)(a) of the Access to Information
Act:
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;
(b) appear before the Court on behalf of any person who has
applied for a review under section 41; or
(c) with leave of the Court, appear as a party to any review
applied for under section 41 or 44.
Section 48 of the Access to Information Act
places upon the respondent the burden of estab
lishing that she is authorized to refuse to disclose
the record requested:
48. In any proceedings before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a governement institution is authorized to
refuse to disclose a record requested under this Act or a part
thereof shall be on the government institution concerned.
Counsel for the respondent argues that such au
thority exists under section 19 of the Act:
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.
(2) The head of a government institution may disclose any
record requested under this Act that contains personal informa
tion if
(a) the individual to whom it relates consents to the
disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the
Privacy Act.
It is not disputed that the record in issue contains
personal information as defined in section 3 of the
Privacy Act [S.C. 1980-81-82-83, c. 111, Schedule
II] nor that the individual to whom that informa
tion relates has consented to its disclosure. Never
theless, counsel contends that since subsection
19(2) provides that the head of a government
institution may disclose personal information, it
establishes with equal force a discretion not to
disclose even though the conditions of subsection
19(2) have been met.
I reject the argument for two reasons: first, as a
question of law, it is contrary to principles of
statutory interpretation; second, it represents an
approach that runs directly against the very pur
pose for which this legislation was enacted, as
stated in the express provisions of the statute and
confirmed in jurisprudence.
In terms of statutory interpretation, when legis
lators intend to create an obligation to do some
thing, they use the word "shall". When they intend
instead to establish a discretion or a right to do it,
they use the word "may". Had the legislators
intended here to repose residual discretion in the
head of the government institution not to disclose
information, even though the conditions of section
19(2) had been met, that appropriate and precise
language would have been used. Of course, the Act
does not establish the discretion not to disclose in
such circumstances (in which case the respondent's
argument might have had merit). The language
chosen expresses the intent to establish a discretion
to release personal information under certain cir
cumstances. Those conditions having been ful
filled, it becomes tantamount to an obligation
upon the head of the government institution to do
so, especially where the purpose for which the
statute was enacted is, as here, to create a right of
access in the public. In support of the argument to
the contrary, counsel for the respondent relied
upon the decision of the Supreme Court of Canada
in Maple Lodge Farms Ltd. v. Government of
Canada, [ 1982] 2 S.C.R. 2. However, in the judg
ment in the Federal Court of Appeal [[1981] 1
F.C. 500], delivered by Le Dain J., and affirmed
in the Supreme Court of Canada, the following
significant passage appears [at page 508]:
This is not a case for application of the principle recognized in
Julius v. The Righ Rev. the Lord Bishop of Oxford (1879-80)
5 App. Cas. 214 and referred to in The Labour Relations
Board of Saskatchewan v. The Queen on the relation of F.W.
Woolworth Co. Ltd., [1956] S.C.R. 82 at page 87, that permis
sive words may be construed as creating a duty where they
confer a power the exercise of which is necessary to effectuate a
right.
It is my view, of course, that the present matter is
precisely such a case and I therefore turn to the
following passages of the two decisions referred to
above. In Julius v. Oxford (Bishop of) (1880), 5
App. Cas. 214 (H.L.), Lord Blackburn states at
pages 242-243:
But there are cases in which the authority or power given is
not to do a judicial act, and yet there is a duty on the donee to
exercise the power if it appears to be given to the donee for the
purpose of making good a right, and he is called upon by those
who have that right to exercise the power for their benefit.
And in Labour Relations Board v. The Queen ex
rel. F.W. Woolworth Company Limited and Agnes
Slabick and Saskatchewan Joint Board, Retail,
Wholesale and Department Store Union, [ 1956]
S.C.R. 82, Locke J. states at page 86:
The language of s. 5, in so far as it affects this aspect of the
matter, reads:-
5. The board shall have power to make orders:—
(i) rescinding or amending any order or decision of the
board.
While this language is permissive in form, it imposed, in my
opinion, a duty upon the Board to exercise this power when
called upon to do so by a party interested and having the right
to make the application (Drysdale v. Dominion Coal Company
((1904) 34 Can. S.C.R. 328 at 336): Killam J.). Enabling
words are always compulsory where they are words to effectu
ate a legal right (Julius v. Lord Bishop of Oxford ((1880) 5
A.C. 214 at 243): Lord Blackburn).
Turning then to the purpose of the legislation, it
is perhaps appropriate to return once again to the
language I used in Maislin Industries Limited v.
Minister for Industry, Trade and Commerce,
[1984] 1 F.C. 939 [at pages 942 and 943]:
It should be emphasized however, that since the basic principle
of these statutes is to codify the right of public access to
Government information two things follow: first, that such
public access ought not be frustrated by the courts except upon
the clearest grounds so that doubt ought to be resolved in
favour of disclosure; second, the burden of persuasion must rest
upon the party resisting disclosure whether, as in this case, it is
the private corporation or citizen, or in other circumstances, the
Government. It is appropriate to quote subsection 2(1):
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.
That interpretation is reinforced on the specific
language of section 4:
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 Immi
gration Act, 1976,
has a right to and shall, on request, be given access to any
record under the control of a government institution.
To repeat, the purpose of the Access to Informa
tion Act is to codify the right of access to informa
tion held by the government. It is not to codify the
government's right of refusal. Access should be the
normal course. Exemptions should be exceptional
and must be confined to those specifically set out
in the statute. In the present case, the applicant
was quite properly informed that the information
sought could not be obtained except by a Canadian
citizen or a resident and could not involve disclo
sure of personal information about another person
without their consent. Once those conditions were
met, and they were here, the information should
have been disclosed.
The application must therefore succeed. An
order will go pursuant to section 49 of the Act
ordering the respondent to disclose the records in
issue to the complainant, Gerald G. Goldstein. The
applicant should have her costs of this application.
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.