T-707-85
Information Commissioner of Canada (Applicant)
v.
Chairman of the Canadian Radio-television and
Telecommunications Commission (Respondent)
and
Attorney General of Canada (Intervenant)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS
COMMISSION
Trial Division, Jerome A.C.J.—Ottawa, Septem-
ber 12, 1985 and February 28, 1986.
Access to information — Whether minutes of CRTC meet
ings exempt from disclosure under Access to Information Act
s. 21(1)(b) — CTRC's decision-making process valid — Act s.
49 not empowering Court to interfere with exercise of discre
tionary power by Commission Chairman under s. 21(1)(b) —
English and French versions of Act s. 49 having same meaning
— Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 21(1)(a),(b),(2)(a), 42(1)(a), 49 — Official Lan
guages Act, R.S.C. 1970, c. O-2, s. 8(2)(d) — Privacy Act, S.C.
1980-81-82-83, c. 111, Schedule II.
This is an application under paragraph 42(1)(a) of the
Access to Information Act to review the refusal by the Chair
man of the CRTC, on the basis of paragraph 21(1)(b) of the
Act, to disclose excerpts from certain meetings of the Executive
Committee of the CRTC and to indicate which members of the
Committee were present and voted.
Held, the application should be dismissed.
First, the Supreme Court of Canada has conclusively decid
ed, in CRTC v. CTV, that the CRTC's decision-making process
is valid.
Second, it is beyond question that confidentiality in the
communications between Committee members in the prepara
tion of a decision is absolutely essential, and paragraph
21(1)(b) clearly sets out an entirely proper and specific exemp
tion in that respect. Only the final reasons for decision are not
exempt.
Finally, section 49 of the Act does not authorize the Court to
interfere with the Chairman of the CRTC's exercise of the
discretionary power conferred on him by paragraph 21(1)(b).
The English and French versions of section 49 both import the
same meaning: the Court shall order the disclosure of a record
if it finds that the applicant has a right to disclosure. But that
right is not absolute—it is subject to the head of the govern
ment institution's discretion to disclose the record.
The decision of Strayer J. in Ternette stands only for the
proposition that the Court has the authority to determine
whether a file is properly included in an exempt data bank
under the Privacy Act. It does not suggest that the Court can
review the exercise of discretion by a government head.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
CRTC v. CTV Television Network Ltd. et al., [1982] 1
S.C.R. 530; 134 D.L.R. (3d) 193.
CONSIDERED:
Ternette v. Solicitor General of Canada, [1984] 2 F.C.
486 (T.D.).
COUNSEL:
Bruce W. Mann for applicant.
A. Cohen and William A. Howard for
respondent.
Barbara A. Mcisaac for intervenant.
SOLICITORS:
Legal Counsel, Information Commissioner of
Canada for applicant.
Legal Counsel, Canadian Radio-television
and Telecommunications Commission for
respondent.
Deputy Attorney General of Canada for
intervenant.
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 September 12,
1985. The applicant seeks access to the following
CRTC record sought by the requester, Douglas
Smith, on June 26, 1984:
Photocopy of the relevant excerpts from any meetings of the
Executive Committee of the CRTC at which decisions were
taken with respect to Decision CRTC 84-214. Also requested is
an indication of which members of the executive committee
were present and voted.
The Chairman of the CRTC, acknowledged as the
head of that government institution, refused to
disclose this record on the basis of paragraph
21(1) (b) of the Access to Information Act:
21. (1) The head of a government institution may refuse to
disclose any record requested under this Act that contains
(b) an account of consultations or deliberations involving
officials or employees of a government institution, a Minister
of the Crown or the staff of a Minister of the Crown,
if the record came into existence less than twenty years prior to
the request.
I expressed concern as to whether this motion
brings into play, as a preliminary issue, the validity
of the decision-making process of the CRTC. I
refer specifically to the fact that those Commis
sioners who attend the initial public hearing where
an application is discussed are not necessarily the
members of the Executive Committee who ulti
mately make the decision. In the present case the
process by which decision #84-214 was made is
outlined in the "facts" portion of the respondent's
written argument:
6. In 1983, the Commission received an application from
Saskatoon Telecable Limited for approval to acquire the assets
of another broadcasting undertaking and for a broadcasting
licence to continue the operation of that undertaking, to distrib
ute the signals of some optional television stations, to distribute
the signals of various specialty services, and to increase its
monthly subscriber fee.
7. With regard to broadcasting applications generally, if the
Commission has elected to hear an application at a public
hearing, a panel selected from the full-time and part-time
Commissioners is appointed by the Chairman to hear the
matter.
Section 19, Broadcasting Act.
8. After having heard the application the panel will usually
formulate its recommendations in the form of a "Panel Recom
mendations" document which is then forwarded to all
Commissioners.
9. The Commissioners will then meet to discuss the panel's
recommendations.
10. This discussion is the "consultation" required by the Broad
casting Act between the Executive Committee and the part-
time members.
Section 17, Broadcasting Act.
11. The consultation consists of Commissioners giving their
views as to what action should be taken with respect to a given
application. Ideas, concepts, philosophies, personal observations
and opinions are all put forward. This almost inevitably leads to
debate, discussion, criticism, accommodation etc. between the
various Commissioners, i.e. the usual give-and-take that can be
expected of any group of individuals when it tries to reach
consensus on an issue.
12. Once consultation has been completed the matter is then
passed to the Executive Committee to reach a decision on what
should be done with the application.
13. The Executive Committee then directs its attention to the
application at a meeting or meetings and deliberates over what
decision is to be made.
14. These meetings may be "in camera" or with staff present.
When "in camera" the Commissioners tend to express them
selves more freely on the quality and usefulness of the staff
documents presented to them and to be more blunt in their
appreciation of issues. Matters of strategy are also frequently
discussed "in camera".
15. At the Executive Committee meetings, whether "in cam
era" or not, Commissioners will give their views as to what
action should be taken with regard to an application. Once
again, as at the consultation meeting, ideas, concepts, philoso
phies, personal observations and opinions will be put forward.
Again, this will lead to debate, discussion, criticism and accom
modation between the Commissioners present.
16. Once a consensus is reached (and this may be after a
number of sessions on various days), instructions and guidance
are given to staff to prepare a draft decision along certain lines.
This is then circulated to all Commissioners for their approval
and comment. Several drafts will almost invariably be gener
ated and circulated before a consensus can be reached by the
Commissioners on the appropriate expression of the Commis
sion's reasoning. Once all have agreed to the wording of the
decision it is published.
17. On January 10, 1984, the application, which led to decision
CRTC 84-214, was heard by Commissioners Therrien, Mer
chant, Raines and Klingle at a public hearing in Edmonton,
Alberta.
18. On January 18, 1984, that panel of Commissioners reported
at a meeting of full and part-time Commissioners, and a
consultation as to what action to take with regard to the
application was held between the Executive Committee and the
part-time members in attendance.
19. On January 20, 1984, the Executive Committee held a
meeting at which it deliberated over the approval of the
application and the conditions to which any such approval
would be subject. The minute which is the subject of this action
is a record of that deliberation.
20. As a result of deliberation a draft decision was prepared
which was circulated to all members of the Executive Commit
tee for their comment and approval; the final decision was
released on March 1, 1984 as CRTC Decision 84-214.
Sections 17 and 25, Broadcasting Act.
21. The said decision, including the reasons therefor, was
published in the Canada Gazette and newspapers of general
circulation in Saskatchewan.
Section 20, Broadcasting Act.
Obviously, I must first be satisfied that all of this
is a proper aspect of the decision-making process if
I am to go on and uphold the claimed exemption.
Fortunately, the matter was exhaustively can
vassed by the Supreme Court of Canada in CRTC
v. CTV Television Network Ltd. et al., [1982] 1
S.C.R. 530; 134 D.L.R. (3d) 193. In that case,
Laskin C.J. states [at pages 549-550 S.C.R.; 207-
208 D.L.R.]:
The difficulty with applying strict natural justice consider
ations based on the maxim that only they who hear should
decide is that the governing statute ordains differently. Counsel
for CRTC contended that the provisions of s. 19(4) respecting
the constitution of a hearing panel merely fixed a quorum of
two or more members, of whom only one need be a full-time
member, and this was met here throughout the hearings.
However, no quorum is expressly fixed under that provision and
I am of the view that this was unnecessary having regard to the
terms of s. 17(1)(c).
Those terms make inapplicable the principle invoked under
the Mehr case which was one, moreover, where there was a
charge of misconduct against the barrister and solicitor, thus
threatening his professional career. Here the statute clearly
envisages that members of the Executive Committee who were
not on the hearing panel would participate in the decision on
renewal. In fact, eight members so participated although only
four were on the hearing panel. I can only read s. 17(1)(c), in
respect of renewal or s. 17(1)(a) and (b) in respect of issue or
amendment of a licence, as expressly authorizing all full-time
members of CRTC, being the Executive Committee, to make
the decision on renewal or issue or amendment of a licence,
whether or not they heard the representations at the public
hearing. Nor would I be justified in limiting or requiring
participation to or of all members who were on the hearing
panel, so long as there was a quorum of the Executive Commit
tee involved in the decision on renewal. There is no express
provision for excluding any member of the Executive Commit
tee nor can such a provision be implied when consideration is
given to ss. 17(1) and 19(4).
What is implicit is that the hearing panel would, through
transcripts or otherwise, bring the issues raised on the applica
tion for renewal to the members of the Executive Committee
and would consult with the part-time members on a proposed
decision. There was a transcript here. Moreover, CRTC and
the Executive Committee was dealing with an experienced
applicant which was aware of the provisions of the Act and
appeared to understand that the absence of a member or two or
even three from some parts of the hearing would not impair the
power of the Executive Committee to make a decision. Unusual
as the decision-making authority may be when considered in
relation to the composition of a hearing panel, the statute
speaks clearly on the matter.
Therefore, I must assume that the process by
which decision #84-214 was made is not in issue in
this application. With that aspect of the matter
resolved, it surely must be beyond question that
confidentiality in the communications between
Commission members in the preparation of a deci
sion is absolutely essential. It follows in turn that
paragraph 21(1) (b) sets out an entirely proper and
specific exemption. Nor do I find any ambiguity in
the way it is expressed in the statutory language. I
also have no difficulty in distinguishing these pre
paratory notes or communications from the final
reasons for decision. In my opinion, only the latter
document is contemplated in the exception set out
in paragraph 21(2)(a):
21....
(2) Subsection (I) does not apply in respect of a record that
contains
(a) an account of, or a statement of reasons for, a decision
that is made in the exercise of a discretionary power or an
adjudicative function and that affects the rights of a person;
or
The applicant's final argument addresses the
powers of the Court on an application for review
under paragraph 42(1)(a) of the Access to Infor
mation Act. He argues that even if the Court finds
that the document falls within the terms of para
graph 21(1) (b), section 49 of the Act authorizes
the Court to decide whether, in its view, the record
ought to be disclosed. Since it appears that the
English and French versions of section 49 differ
counsel relies on paragraph 8(2)(d) of the Official
Languages Act [R.S.C. 1970, c. O-2] to persuade
the Court to apply the French version:
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.
49. La Cour, dans les cas où elle conclut au bon droit de la
personne qui a exercé un recours en révision d'une décision de
refus de communication totale ou partielle d'un document
fondée sur des dispositions de la présente loi autres que celles
mentionnées à l'article 50, ordonne, aux conditions qu'elle juge
indiquées, au responsable de l'institution fédérale dont relève le
document en litige d'en donner à cette personne communication
totale ou partielle; la Cour rend un autre ordonnance si elle
l'estime indiqué.
He further relies on the decision of Strayer J. in
Ternette v. Solicitor General of Canada, [1984] 2
F.C. 486 (T.D.), wherein the learned Justice states
[at pages 497, 498 and 501]:
While the contention of the respondent is not without force, I
am unable to conclude that this is a proper situation for the
application of the maxim expressio unius est exclusio alterius.
Were it not for the specific references to the right and proce
dure for the Privacy Commissioner to apply for review of a file
within an exempt bank, there could be no doubt that such a
matter would be properly within the general powers of the
Court to receive and consider applications for review for a
refusal to disclose any personal information, as provided in
general terms in sections 41, 45, 46 and 48. I am not prepared
gratuitously to narrow the scope of those general powers merely
because it has also been seen fit to describe specifically the
right of the Privacy Commissioner to seek such review. It would
have been quite simple for Parliament to have limited the scope
of sections 41, 45, and 48 or to have made it clear that they do
not apply where subsection 36(5), section 43, and section 50
apply. But Parliament did not do this. Instead, section 41,
giving an individual who has been refused access a general right
to apply to the Court "for a review of the matter", and section
45 which gives the court in such cases carte blanche to look at
any information under government control other than a confi
dence of the Queen's Privy Council, "Notwithstanding any
other Act of Parliament or any privilege under the law of
evidence", clearly casts upon the Court a power and a responsi
bility to deal with such applications having regard only to the
need to avoid improper disclosure as prescribed in section 46. In
adopting such general provisions Parliament must have under
stood the individual's right of judicial review to be as effective
in relation to exempt banks as in relation to personal informa
tion held in other forms. If one interpreted sections 41 and 48
in the manner advocated by the respondent herein, the only
power the Court would have in response to an application for
review would be to read the Order in Council exempting the
bank. Once the Court had read the Order in Council and
compared the index number of the bank to that referred to in
the application for personal information, its powers would be
exhausted. It is not to be assumed that Parliament intended
such a trivial and inconsequential function for the Court when
in section 41 it granted a general right to individuals to seek
judicial review of refusals by government institutions to disclose
personal information.
I therefore conclude that in an application "for a review of
the matter" under section 41 such as the present application,
this Court is entitled to ascertain whether there is indeed a file
in this data bank with respect to the applicant and if so whether
it is properly included in the data bank. As noted above, for a
bank to be properly exempted under subsection 18(1) of the
Act all files therein must "consist predominantly of personal
information described in section 21 or 22". This is an objective
prerequisite to the inclusion of any given file: it is not couched
in subjective terms such as "where the Governor in Council is
of the opinion that ..." such a condition exists. The bank in
question here was purportedly exempted because all the files
therein consist predominantly of information described in sec
tion 21. Therefore the Court is entitled to look at any given file
in the exempt bank which is the subject of an application under
section 41 to determine if it consists predominantly of personal
information described in section 21. If it determines that such
file does not so consist, then the file is not properly included in
that bank and the Court is entitled to make an appropriate
order under section 48.
In my opinion, both the French and English
versions of section 49 impart the same meaning,
that is, the Court shall order the disclosure of a
record if it finds that the applicant has a right to
disclosure. Once it is determined that a record falls
within the class of records referred to in subsection
21(1) the applicant's right to disclosure becomes
subject to the head of the government institution's
discretion to disclose it. In other words the appli
cant does not have an absolute right to disclosure
of records under subsection 21(1).
Furthermore, I do not think that Justice Stray-
er's remarks in Ternette can be interpreted as
standing for the proposition that the Court can
review the discretion exercised by the head of a
government institution once it is determined that
the record or file is properly included in the data
bank which is not subject to disclosure. His conclu
sion, in my opinion, is that the Court has the
authority to determine whether a file is properly
included in an exempt data bank under the Priva
cy Act, S.C. 1980-81-82-83, c. 111, Schedule II.
For these reasons, I am satisfied that an order
under section 49 of the Act cannot issue. The
application is therefore dismissed 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.