Date: 20000412
Docket: T-701-99
BETWEEN:
WILLIAM ROWAT
Applicant
- and -
THE INFORMATION COMMISSIONER OF CANADA
AND THE DEPUTY INFORMATION COMMISSIONER
Respondents
REASONS FOR ORDER
ARONOVITCH, P.
[1] On October 7, 1998, the Information Commissioner received complaints against the heads of two government institutions, the Privy Council Office and the Department of Fisheries and Oceans Canada. One of these complaints was in respect to an alleged breach of confidentiality during the governments processing of an access request relating to a requester"s identity.
[2] The applicant, Mr. Rowat, is a Senior Advisor to the Privy Council Office. He was Deputy Minister of the Department of Fisheries and Oceans Canada until August 25, 1997 when he was seconded to the Province of Newfoundland. This alleged breach of confidentiality occurred in the context of the processing of a request relating to Mr. Rowat"s secondment and his professional expense claims between August 25, 1997 and October 1997.
[3] The Information Commissioner, pursuant to section 32 of the Access to Information Act, notified Mr. Rowat of his intention to investigate the complaint. Thereafter, the applicant appeared before Mr. Leadbeater, the Deputy Information Commissioner, on March 17 and 22, 1999, to give testimony in the context of the Commissioner"s investigation. In the course of his March 22, 1999 appearance, Mr. Rowat refused to answer questions put to him by Mr. Leadbeater relating to the source of Mr. Rowat"s knowledge of the identity of the access requester. Having declined to answer, Mr. Rowat"s testimony was adjourned to set a date for a hearing to allow Mr. Rowat to show cause why he should not be held in contempt of the Information Commissioner.
[4] As of March 26, 1999, there had been exchanges and discussions between Mr. Daniel Brunet, counsel for the Commissioner, and Mr. M. Pierce, Director of Legal Operations, Privy Council Office, who had attended with Mr. Rowat before the Deputy Commissioner but no date had been set for the show cause. Indeed, counsel for the Commissioner wrote to Mr. Pierce on March 26, 1999, to inform him that the matter was unprecedented and that the Commissioner had yet not determined how to deal with Mr. Rowat"s refusal to answer questions put to him by Mr. Leadbeater.
[5] On April 23, 1999, Mr. Peter K. Doody, who had been retained as counsel by Mr. Rowat, wrote to Mr. Leadbeater. In the following terms:
| The purpose of this letter is to respectfully submit to you that you do not have the jurisdiction to conduct a hearing in which he is required to show cause why he should not be held in contempt or, assuming that you come to the conclusion that he should be held in contempt, to impose any sanction on Mr. Rowat as a result. In our submission, you lack this authority for the following two reasons. |
| (a) The institutional and statutory framework pursuant to which you purport to exercise such authority is such that you are not "an independent and impartial tribunal", the process is not in accordance with the "principles of fundamental justice" and the process proposed by you would be one in respect of which there was a reasonable apprehension of bias. As a result, to proceed would infringe Mr. Rowat"s rights: |
| (i) under natural justice at common law; |
| (ii) pursuant to the Charter of Rights and Freedoms, Section 11(d) as a "person charged with an offence" to be presumed innocent until proven guilty according to law "in a fair and public hearing by an independent and impartial tribunal"; |
| (iii) pursuant to the Charter, s. 7, to not be deprived of his liberty or security of the person except "in accordance with the principles of fundamental justice"; and |
| (iv) pursuant to Subsection 2(e) of the Canadian Bill of Rights to a "fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations". |
| (b) In the particular circumstances of this case, your statement of March 22, 1999, that if he failed to answer questions, he would be in contempt, gives rise to a reasonable apprehension of bias if you were to conduct the proposed show cause hearing.[...] |
[6] Attached to the letter was a copy of the within application for judicial review essentially on the basis advocated in the letter.
[7] There followed a number of preliminary orders including a confidentiality order and an order setting a timetable for further steps in this proceeding. By October 1999, two days had been set aside for the hearing of the judicial review commencing June 5, 2000. In November 1999, the applicant forwarded a copy of the within motion record to the respondents. The applicant seeks herein, to strike out certain portions of the affidavit of Dr. John W. Grace, to amend the notice of motion inter alia to seek a declaration that section 36(1)(a) of the Access to Information Act contravenes the Canadian Bill of Rights and the Charter of Rights and Freedoms ("the Charter") and to add the Attorney General as a party respondent.
[8] The respondents oppose the motion and have brought a cross-motion to bifurcate the "constitutional issue" from the "jurisdictional issue" pursuant to rule 107 of the Federal Court Rules, 1998, ("the Rules"). I shall deal with each in turn.
The affidavit of Dr. John W. Grace
[9] The respondents rely on the affidavit of Dr. John W. Grace, sworn October 15, 1999. Dr. Grace, a former Privacy Commissioner of Canada was in addition, the Information Commissioner of Canada from 1990 to April 1998. The affidavit, as required by the Rules, is stated to be made on the basis of his personal knowledge of the matters deposed to.
[10] The affidavit is altogether ten paragraphs long. The applicant seeks to strike out paragraphs 5, 6, 7 and 9 of the affidavit reproduced below, on the basis that they improperly express legal opinions, make legal arguments and are tantamount to expert opinion for which the deponent is not qualified and are therefore inadmissible.
| 5. In my experience, unnecessary disclosure of a requester"s identity, whether the requester be an individual or a corporation, is a matter "relating to requesting or obtaining access to records under the Act" (s. 30(1)(f)). Unnecessary disclosure would (1) create a chilling effect upon potential requesters of government information who may fear retaliation for the making of a particular request; and (2) raise concern that the requester will not be treated fairly in accordance with the Act, either by means of delay or by unjustified secrecy. |
| 6. My view is that there is a clear link between unnecessary disclosure of a requester"s identity and the general process of requesting or obtaining access to records under the Act. That view is shared by the department designated pursuant to section 70 of the Act to oversee its implementation. In this regard, I am aware that the Treasury Board issued Implementation Reports which caution government institutions to respect the confidentiality of the identities of requesters. Copies of these reports are attached as Exhibit 1. |
| 7. My view, expressed above, is also shared by the current Privacy Commissioner. He has also cautioned institutions to avoid unnecessary disclosure of requesters" identities in his 1996-1997 Annual Report to Parliament. A copy of the extract of this report is attached as Exhibit 2. |
| [...] |
| 9. In my experience, the unnecessary disclosure of requesters" identities has, in some cases, been prejudicial to requesters as referred to a paragraph 5. As I reported in my 1995-96, 1996-1997 and 1997-1998 Annual Reports to Parliament, I have raised such cases with the appropriate heads of institutions and remedial action was taken. The Privy Council Office is one example (see my 1997-1998 Annual Report at p. 6). A copy of the extracts of these Annual Reports are attached as Exhibit 3. |
[11] The applicable principles of law are not in dispute as is evident from the jurisprudence referred to my attention by both parties including (Home Juice Co. v. Orange Maison Ltd. (1968), 1 Ex. C.R. 163; Dupuis v. Canada (1998), 152 F.T.R. 82; Bank of Scotland v. Nel (The), [1998] F.C.J. No. 1499 (F.C.T.D.)).
[12] Generally, the jurisprudence is to the following effect. Given the summary nature of judicial review and the advisability of not impeding the progress of such proceedings, parties ought not to impugn affidavit evidence in support of the application in an interlocutory proceeding but rather, argue the inadequacies of the evidence at the hearing of the judicial review where the judge hearing the application on the merits is optimally placed to determine the weight and admissibility of the evidence. The exceptions to this rule are succinctly summarized in Bank of Scotland, supra, at pages 1-2:
| The exceptions to this generalization, are where an affidavit is abusive or clearly irrelevant or where a party has obtained leave to admit evidence which proves to be obviously inadmissible or where the Court is convinced that the admissibility should be resolved at an early date so the eventual hearing may proceed in an orderly manner:[...]Of course conjecture, speculation and legal opinion have no place in the affidavit,[...] |
[13] At issue between the parties is whether the impugned statements in fact constitute legal opinion, conjecture or hearsay such as to render that portion of Dr. Grace"s evidence obviously inadmissible and whether the admissibility of the evidence ought to be determined at this time, in order to ensure that the hearing of the matter will proceed in an orderly manner.
[14] By reference to paragraph 5 of the affidavit, the applicant argues that Dr. Grace, in stating that in his experience, disclosure of an individual"s identity is a matter "relating to requesting or obtaining access to records under section 30(1)(f)" is providing a legal opinion on the very issue of law to be determined on the merits. All of the rest of the paragraph, as to the "chilling effect" of such disclosure, is only legal argument in support of the opinion and is moreover pure conjecture.
[15] The "clear link" referred to in paragraph 6, is an opinion on a question of law and in the applicant"s view, speculative and therefore inadmissible. The reference to the Privacy Commissioner"s view, in paragraph 7, is impugned as hearsay and inadmissible. While it is conceded that hearsay may be admissible where it is reliable and necessary (see R . v. Smith, [1992] 2 S.C.R. 915), the applicant argues that this can offer no assistance to the respondents as the Privacy Commissioner is available to swear an affidavit, in Ottawa, and is the proper party to be cross-examined as to his views.
[16] Paragraph 9, it is argued, consists of argument in support of a legal opinion and is speculative. Indeed, the applicant argues that Dr. Grace"s legal opinions and arguments in paragraphs 5, 6, 7 and 9, constitute expert opinion which given the lack of need for such evidence, is inadmissible and must be struck. In that regard, the applicant relies on the following cases which deal at considerable length with expert opinion and conclude essentially that it is only admissible where the Court requires the advice of experts in order to make its determination.(R v. Mohan , [1994] 2 S.C.R. 9; Vancouver Island Peace Society v. Canada (Attorney General), [1994] 1 F.C. 102 at 138 (F.C.T.D.); Fairford First Nation v. Canada, (1998), 145 F.T.R. 115 (F.C.T.D.); Regina v. AK and N.K. (1999), 45 O.R. (3d) 641 (Ont. C.A.)).
[17] I need not consider in detail the equally able and exhaustive argument of counsel for the respondents. Suffice it to say that, at the conclusion of the submissions for the parties, I am not satisfied that I must derogate from the general principle that the evidence in question is best left to the judge hearing the matter on the merits, to be given such weight as he or she determines.
[18] Indeed, there is some argument to be made that the "legal opinion" expressed by Dr. Grace is not to be taken as evidence of the law but rather is meant to provide context for inferences drawn from his personal experience as a former administrator of the Access to Information Act and context as well for the policy considerations he expresses as to the "chilling effect" of disclosure (see Lominadze v. Canada (Minister of Citizenship and Immigration), (1992), 143 F.T.R. 310 (F.C.T.D.) and Sierra Club of Canada v. Canada (Minister of Finance), [1999] F.C.J. No. 1418 (F.C.T.D.)).
[19] As to the reports prepared, be it by Treasury Board, the Privacy Commissioner or the Information Commissioner"s Annual Report, the Court may have regard to these, in some circumstances, as relevant administrative interpretation of statutory provisions by individuals or agencies charged with their administration (see Norwegijick v. R. , [1983] 1 S.C.R. 29 (S.C.C.) and Matabi Mines Ltd. v. Ontario (Minister of Revenue), [1988] 2 S.C.R. 175)).
[20] Further, the Privacy Commissioner"s Report, is offered as the factual basis of the Dr. Grace"s contention that the Privacy Commissioner agrees with him. If any of these reports, as is argued by the applicant, in fact contradict the statements or opinions expressed by Dr. Grace, the applicant shall have ample opportunity to expose the contradiction in cross-examination.
[21] This Court, of late, has reiterated its reticence to intervene to strike out affidavit evidence or pronounce on its admissibility on an interlocutory basis. This disposition is emphasized in Ginter v. Canada (Attorney General), [1999] F.C.J. No. 1725 at page 2.
| The Court spends time and effort disproportionate to benefit in most instances in which it deals with preliminary jousting over the content of affidavits, content which any judge will in all likelihood, deal with expeditiously and appropriately when the matters comes on for a full hearing.[...] |
[22] Most recently, Hughessen J. in L"Hirondelle v. Canada, [2000] F.C.J. No. 192, had occasion to consider an application to strike out parts of an affidavit adduced for the purposes of a motion to be dealt with at a later date. He found the affidavit to be replete with legal opinion, conjecture and argument from a deponent apparently not qualified to offer such opinion but observed at page 4:
| In my view, in a sane modern procedure, irregularities in proceedings should not be made the subject of motions and should not require the Court to give orders striking out or correcting such irregularities unless the party attacking the irregularity can show that it suffer some sort of prejudice as a result thereof[...][emphasis added] |
thereafter at page 5, he concluded:
| Accordingly, absent any showing of prejudice and notwithstanding that almost all of the affidavit is irregular and should not be before the Court, I have no grounds that would justify me in striking it out.[...] |
[23] Dr. Grace"s affidavit is brief. The applicant wishes to strike out four out a total of ten paragraphs which will effectively eviscerate the affidavit and the respondents" evidence in this proceeding. There is no affidavit evidence from the applicant in this instance that he will be prejudiced. There is no claim on the part of the applicant that the cross-examination on the affidavit, in its present form, will result in delay, the dissipation of resources or the futility or protraction of the cross-examinations. The applicant"s whole argument as to prejudice, is the assertion that striking out of the evidence is necessary for the orderly conduct of hearing, it being necessary for the parties and the Court to know in advance what evidence will be admissible. Counsel for the applicant argues that if the applicant does not know whether the evidence is inadmissible in advance it may be precluded from moving to strike it at the hearing having once cross-examined on the affidavit. On the basis of these submissions, I cannot conclude that the applicant will be prejudiced or that there is any obvious benefit to be derived in terms of the conduct of the hearing. Indeed, the applicant will not be prejudiced. He will not be prevented from impugning the evidence at the hearing and will be free to make submissions in argument to the presiding judge as to the relevance and weight to be given to the respondents" evidence. I will accordingly dismiss the motion.
Amendments to the notice of application
[24] In its original notice of application, the applicant seeks judicial review of the order of the Deputy Commissioner made March 22, 1999, and "in respect of the actions he sated on that date he would take in the future". The applicant relies on sections 7 and 11(d) of the Charter and section 2(e) of the Canadian Bill of Rights and seeks the following relief:
| (a) a Declaration that the Respondents lack jurisdiction to investigate a purported breach of confidentiality during the processing of an access to information request; |
| (b) a Declaration that the Respondents lack jurisdiction whether a public servant or other individual disclosed the identity of a person who has made an access to information request under the Access to Information Act; |
| (c) a Declaration that the Applicant is not required to respond to inquiries from the Respondents concerning the name of a person who had advised the Applicant that a person or persons were collecting personal and private information about him that was not within the scope of the Access to Information Act. |
| (d) an Order prohibiting the Respondents from investigating whether there was a "breach of confidentiality" during the processing of an access to information request; |
| (e) an Order prohibiting the Respondents from requiring the Applicant to respond to inquiries from the Respondents concerning the name of a person who had advised the Applicant that a person or persons were collecting personal and private information about him that was not within the scope of the Access to Information Act. |
| (f) an Order prohibiting the Respondents from finding the Applicant guilty of contempt; |
| (g) an Order prohibiting the Respondents from imposing any sanctions in respect of any finding that the Applicant is guilty of contempt; |
| (h) an Order in the nature of certiorari quashing the Order of the Deputy Information Commissioner requiring the Applicant to disclose the name of the individual who informed him of the fact that a particular named group was collecting information about him. |
[25] The applicant now seeks to amend the notice of application by adding the below paragraph (i) as further relief, as well as the below item (1) as further grounds for the application.
| Relief: |
| (i) a Declaration that s. 36(1)(a) of the Access to Information Act is of no force and effect in that it contravenes s. 2(e) of the Canadian Bill of Rights and/or ss. 7 and 11(d) of the Charter of Rights and Freedoms; |
| Grounds: |
| (1) The Access to Information Act, including s. 36(1)(a) purports to provide authority to the Respondents to act as investigator, prosecutor and judge with respect to the issue of whether the Applicant was in contempt thereby infringing the Applicant"s rights: |
| (i) to presumed innocent until proven guilty according to law "in a fair and public hearing by an independent and impartial tribunal" as guaranteed by s. 11(d) of the Charter of Rights and Freedoms ; |
| (ii) to not be deprived of his liberty or security of the person except "in accordance with the principles of fundamental justice" as guaranteed by s. 7 of the Charter ; |
| (iii) to a fair hearing "in accordance with the principles of fundamental justice for the determination of his rights and obligations" as guaranteed by subsection 2(e) of the Canadian Bill of Rights . |
[26] The applicant argues that the amendment to the grounds, merely particularizes the basis of his reliance on sections of the Charter and Canadian Bill of Rights already invoked. Having otherwise invoked the Charter, the applicant had already engaged the constitutional argument, thus the amendment could not be regarded as the novel addition of a constitutional issue. In the applicant"s submission, this amendment, arising out of the same circumstances as those alleged in the application, merely adds to the Court"s discretionary arsenal, and in addition to the other relief sought, allows the Court to go so far as to find the section invalid, if necessary and appropriate.
[27] Again, it is common ground between the parties that the applicable principles of law are as enunciated by the Court of Appeal in Francoeur v. Canada, [1992] 2 F.C. 333 (F.C.A.) and later in Canderel Ltd. v. Canada (C.A.), [1994] 1 F.C. 3 (F.C.A.) where Décary J.A., writing for the Court, states at page 3:
| With respect to amendments, the general rule is that an amendment should be allowed at any stage of an of an action for the purpose of determining the real question in controversy between the parties, provided, notably, to do so would not result in an injustice to the other party not capable of being compensated by an award of costs[...] |
[28] The respondents rely on numerous exchanges of correspondence which would support their view that counsel for the applicant had earlier, and as late as October 1999, made a tactical decision to forgo the argument now raised. They do not argue estoppel or that the applicant has thereby waived his rights, rather they commend this to my consideration in determining whether the respondents are thereby prejudiced.
[29] The respondents further submit that the amendments would result in the following: the participation of the Attorney General; requests for intervention by other boards, with powers similar to those of the Commissioner under section 36(1) of the Access to Information Act which is sought to be invalidated and, most importantly, the respondents need to file additional evidence principally, in respect of section 1 of the Charter. All of this would cause further delay which would result in the destruction or unavailability of evidence such as to jeopardise the Commissioners"s investigation which had already been delayed a year.
[30] Absent affidavit evidence relating to any of the claims of the respondents, the applicant views these submissions as mere speculation on which he is unable to cross-examine. I agree with applicant that it is not evident that the amendment will result in the proceeding being delayed and also concur that the applicant is entitled to change his view in the course of the litigation and seek amendments to his pleading at any time providing the responding parties are not thereby prejudiced in a manner that cannot be compensated by costs.
[31] I need not review the exchange of correspondence which may quite properly have led the respondents not to anticipate the proposed amendment in October 1999 by which time the date for the judicial review had been set and a timetable for furthers steps in the proceeding had been ordered by the Court. The applicant may indeed have changed its view or strategy however, the fact is that the applicant gave notice of its intention to seek the amendment as of November 17, 1999, well in advance of the date set for the judicial review. The amendments are otherwise proper and I have no basis to conclude that the respondents are prejudiced within the meaning of the jurisprudence. It is difficult to accept that the respondents have not yet set their minds to the nature or scope of the factual, section 1, evidence they may wish to adduce when the probability of the Courts allowing the amendment has been foreseeable since November. In the circumstances, I am supported by the following statement by the Court of Appeal in Scottish and York Insurance Co. v. Canada (1999), 239 N.R. 131 (F.C.A.).
| In these circumstances we believe that the learned motions judge should have given much greater weight to the principle that, in the absence to an opposing party, an amendment to pleadings should be allowed, if otherwise proper. He also gave undue weight to the delay in seeking this amendment as a ground for its refusal. |
[32] I will allow the amendments as requested.
The addition of the Attorney General as a party
[33] The applicant states that it will give notice of constitutional question pursuant to section 57 of the Federal Court Act, as required under the statute, at least ten days prior to the date set for the argument of the question. Indeed, counsel takes the position that the Charter, having been invoked from inception, such notice would have had to have been given in any case, even prior to the amendment. I need not consider this argument in this context, and shall not dwell on it.
[34] Notwithstanding the section 57 notice, out of an abundance of caution and out of concern that the proceeding may otherwise be invalidated, the applicant seeks to add the Attorney General as a party to the proceeding on the basis of the statement of Strayer J., as he then was, in Gratton v. Canada (Judicial Council) [1994], 2 F.C. 769 (F.C.T.D.) at 129:
| The Attorney General of Canada is, of course, an appropriate party because inter alia, a declaration is being sought against the validity of an Act of Parliament. |
[35] The applicant served notice of the within motion on the Attorney General and no response had been made by the Attorney General at the date of hearing.
[36] The respondents do not take the position that the Attorney General is a necessary party to this proceeding and do not challenge the proceeding as being irregular or improper for the Attorney General not having been named a party.
[37] The respondents" concern is the following. During his appearance before the Deputy Commissioner on May 19 and 22, 1999, Mr. Rowat was represented by Mr. Pierce, Director, Legal Operations for the Privy Council Office. On that occasion, the latter, on behalf of the Crown, had taken a position adverse to that of the Commissioner"s. The respondents maintain therefore that the Attorney General is not in a position to properly defend the constitutionality of section 36 of the Access to Information Act . At the hearing of the motion, respondents" counsel stated that they would raise the issue as to who might act for the Attorney General, if and when the Attorney General was made a party or given notice of the constitutional issue.
[38] For the following reasons, I am not satisfied that the Attorney General should be added as a party to these proceedings.
[39] Section 57 of the Federal Court Act provides as follows:
| Constitutional questions 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2). |
Questions constitutionnelles 57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, don"t la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2). |
| Time of notice (2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued |
Formule et délai de l'avis (2) L'avis est, sauf ordonnance contraire de la Cour ou de l'office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l'objet doit être débattue. |
| Notice of appeal or application for judicial review (3) The Attorney General of Canada and the attorney general of each province are entitled to notice of any appeal or application for judicial review made in respect of the constitutional question described in subsection (1). |
Appel et contrôle judiciaire (3) Les avis d'appel et de demande de contrôle judiciaire portant sur une question constitutionnelle sont à signifier au procureur général du Canada et à ceux des provinces. |
| Right to be heard (4) The Attorney General of Canada and the attorney general of each province are entitled to adduce evidence and make submissions to the Court or federal board, commission or other tribunal in respect of the constitutional question described in subsection (1). Appeal (5) Where the Attorney General of Canada or the attorney general of a province makes submissions under subsection (4), that attorney general shall be deemed to be a party to the proceedings for the purposes of any appeal in respect of the constitutional question described in subsection (1). |
Droit des procureurs généraux d'être entendus (4) Le procureur général à qui un avis visé aux paragraphes (1) ou (3) est signifié peut présenter une preuve et des observations à la Cour, et à l'office fédéral en cause, à l'égard de la question constitutionnelle en litige. Droit d'appel (5) Le procureur général qui présente des observations est réputé partie à l'instance aux fins d'un appel portant sur la question constitutionnelle. |
[40] The effect of these subsections taken together, is that the Court may not invalidate a statutory provision or find it inoperable unless notice of the constitutional question is given to the Attorney General who thereafter is entitled, if he or she so chooses, to adduce evidence and make argument at the hearing. In that event, the Attorney General is also deemed to be a party to the proceeding for the purpose of appealing any finding on the constitutional question.
[41] The Attorney General is sought to be added as a party to these proceedings, by the applicant, pursuant to rule 104(1)(b) of the Federal Court Rules, 1998. Rule 104 provides as follows:
| 104. (1) At any time, the Court may (a) order that a person who is not a proper or necessary party shall cease to be a party; or (b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order. |
104. (1) La Cour peut, à tout moment, ordonner: a) qu'une personne constituée erronément comme partie ou une partie don"t la présence n'est pas nécessaire au règlement des questions en litige soit mise hors de cause; b) que soit constituée comme partie à 'instance toute personne qui aurait dû l'être ou don"t la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne. |
[42] Rule 104(1)(b) has been interpreted in Parker v. Stevens,[1998] 4 F.C. 125 (F.C.A.), to require parties to be added not merely because they may have relevant evidence but to render the Court"s decision binding on the party which is sought to be added and as well, in order to settle a question which cannot be finally determined or settled if an individual or entity is not made a party.
[43] The applicant is not seeking recourse against the Attorney General in this proceeding. Further, while notice of a constitutional question is a necessary pre-requisite to the Court"s adjudication of the constitutional question, the Court does not require the presence of the Attorney General in order to determine the question on its merits and declare a statutory provision as being of no force and effect.
[44] In that connection, the Court in Gratton, supra, did not have this question before it for determination. The above-referenced statement, of Strayer J., is the sole reference to the matter in the case and obiter. I do not take the case to have decided the issue of whether the Attorney General is a necessary party where notice of constitutional question has been given and do not construe it to that effect.
[45] In the circumstances of this case, I see no necessity to add the Attorney General as a party. If upon notice, she chooses to intervene, she will be able to exercise full rights in respect of the argument of the constitutional issue. Having said that, all interests are best served to have the notice issue forthwith.
Separate determination of issues
[46] In the event that the applicant"s motion to amend its notice of application is granted, the respondents bring a cross-motion pursuant to rules 3 and 107 of the Federal Court Rules, 1998 , to separate the determination the "jurisdictional issue" from that of the "constitutional issue". Thus the respondents seek to have the Commissioner"s jurisdiction to investigate a complaint of an alleged breach of confidentiality with respect to the requester"s identity, determined separately and prior to the determination of the issue of the constitutionality of section 36(1) of the Access to Information Act .
[47] The respondents maintain that the severance of the two issues is more likely than not to result in the just expeditious and least expensive determination of the proceeding on its merits.
[48] The applicant contends for its part that the severance of these two legal issues will only serve to delay and complicate the ultimate determination of the issues in the application for judicial review.
[49] The respondents" arguments in favour of bifurcation are as follows. They reiterate that at the date of the hearing, the Commissioner had brought no contempt proceedings against the applicant and no show cause order had been issued to him. They submit therefore that the contempt issue is premature for consideration by the Court. The Commissioner"s jurisdiction to inquire into the breach of confidentiality and his ability to ask the questions declined by Mr. Rowat, being the primary issue, it ought to be dealt with prior to the constitutional challenge to his power under section 36 of the Access to Information Act to cite the applicant for contempt. If the Court were to conclude that the Information Commissioner does not have the jurisdiction to investigate, and pose the questions at issue, the applicant will no longer be required to answer questions in relation to the investigation and the controversy between the parties will cease, rendering the constitutional issue moot.
[50] The applicant argues that the jurisdictional issue, however it is decided, will not be dispositive of the controversy between the parties. The citation for contempt is not only raised with respect to the invalidity of section 36, but in respect of violations of the Charter as well as, the Canadian Bill of Rights. There is also no reason to believe that the Commissioner might not appeal any adverse finding of the Court as to his jurisdiction thereby complicating and delaying the adjudication of the ultimate issues.
[51] Rule 107 is as follows:
| 107. (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately. (2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents. |
107. (1) La Cour peut, à tout moment, ordonner l'instruction d'une question soulevée ou ordonner que les questions en litige dans une instance soient jugées séparément. (2) La Cour peut assortir l'ordonnance visée au paragraphe (1) de directives concernant les procédures à suivre, notamment pour la tenue d'un interrogatoire préalable et la communication de documents. |
[52] The jurisprudence under rule 480, the predecessor of rule 107, was to the effect that severance was an exceptional procedure and required the consent of the parties or the demonstration of "reasons bearing on the conduct of the action as whole" (Verrerie Cristallerie D'Arques v. Modern Housewares Imports Inc. (1993), 70 F.T.R. 194 (F.C.T.D.)).
[53] Having considered the prior jurisprudence, Evans J. in Illva Saronno S.p.a v. Privilegiata Fabbrica Maraschino "Excelsior", (1998), 155 F.T.R. 319 (F.C.T.D.) at page 5, formulated the test to be applied under rule 107 namely, that the severance may be allowed:
| [...]if, the Court is satisfied on the balance of probabilities that in light of the evidence and all the circumstances of the case (including the nature of the claim, the conduct of the litigation, the issues and the remedies sought), severance is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits. |
[54] The jurisprudence on point deals almost exclusively, with severance in the context of actions and more particularly, the separation of the determination of liability from damages. Most recently, Teitelbaum J. in Barlow v. Canada (T-1876-99) rendered March 3, 2000 (F.C.T.D.), refused to sever a constitutional and treaty issue from factual issues in the context of an application. At page 13, he concluded as follows:
| The respondent submits that the first issue raised by this application, namely the factual question of whether officers of the Minister of Fisheries and Oceans seized the applicant"s, Ken Barlow"s lobster traps, should be dealt with in advance of the broader constitutional and treaty. This submission is based on the assumption that if the first question is answered in the negative then it will not be necessary for the Court to address the second question. |
| Before embarking on a consideration of this point, it is important to note that there is no rule of this Court which would permit me to bifurcate the first issue from the second. The respondents point to the fact that this Court has inherent jurisdiction to control is own proceedings, and in the interest of judicial resources, the factual issue ought to be heard separately from the constitutional and treaty issues. |
| With all due respect to the respondent, I am unable to see why it is necessary to bifurcate the two issues before the hearing of the application. Judicial review is intended to be a speedy remedy and to separate issues can only delay the proceedings. |
[55] Counsel in Barlow, supra, did not rely on rule 107 and failed to bring the rule to the attention of the learned judge. With respect, in my view, the language of the rule 107 clearly, contemplates the bifurcation of issues in the context of a judicial review. Notwithstanding rule 107(2), which speaks exclusively to "discoveries" and "the discoveries of documents", rule 107(1) states that the trial of an issue or "issues in a proceeding" may be determined separately. There is little doubt that an application may be characterized as a proceeding. That said, and taking the applicable test to be as enunciated by Evans J. in Illva Sorrono, supra , the burden is on the party seeking the separation of an issue to demonstrate the greater likelihood of efficiency, celerity and economy to be effected by the severance.
[56] In my view that onus is undoubtedly greater in the context of a judicial review where it is both the purpose and the preference of the Court to deal with all of the issues encompassed by the application in summary fashion. (Pharmacia Inc. v. David Bull Laboratories (Canada) Inc. (1994) 182 N.R. 158 (F.C.A.)).
[57] In any application under rule 107, at a minimum, there must be a clear delineation and distinction of the legal and evidenciary issues sought to be severed from the ultimate matters for disposition in the application. That is not the case in this instance where the contempt issue permeates the application and breaches of the Charter are otherwise alleged. The respondents in this case have failed to demonstrate as they must, that the proposed bifurcation is more likely to ultimately result in the more expeditious and least expensive determination of the issues, and not any one issue, raised by the application. It is certainly not evident that the adjudication of the "constitutional issue" will be determinative and will not result in two separate proceedings on overlapping issues with all of the attendant delays of multiple proceedings thereby defeating the summary adjudication of the application. I will accordingly deny the respondents" application.
Extensions of time
[58] The applicant has sought an extension of the timetable ordered by the Court on October 7, 1999. Following submissions from counsel, I have concluded that the timetable set out in the separate order of today"s date is appropriate under the circumstances.
[59] A separate order shall issue in respect of these reasons.
"Roza Aronovitch"
Prothonotary