Court file number: 37037
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
THE ATTORNEY GENERAL OF CANADA Appellant (Appellant) and
LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, ET AL. (complete list of Respondents continued on the next page)
FACTUM OF THE INTERVENER, THE INFORMATION COMMISSIONER OF CANADA (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
GOWLING WLG CANADA LLP GOWLING WLG CANADA LLP Suite 2600-160 Elgin Street Suite 2600-160 Elgin Street Ottawa, Ontario KW 1C3 Ottawa, Ontario KlP 1C3
Richard G. Dearden LSUC #19087H Guy Regimbald Telephone: 613-786-0135 Telephone: 613-786-0197 Fax: 613-788-3430 Fax: 613-788-3559 [email protected] guy.re gimbal d@gowlingwl g. corn
OFFICE OF THE INFORMATION COMMISSIONER OF CANADA 30 Victoria Street Gatineau, Quebec KlA 1113
Nancy Belanger LSUC #36330Q Diane Therrien Adam Zanna Telephone: 819-994-0008 Fax: 819-994-1768 [email protected]
Counsel for the Intervener, Agent for the Intervener, the Information Commissioner of Canada the Information Commissioner of Canada MICHELLINE AMMAQ, PERCY ARCHIE, CHARLES BAXTER SR., ELIJAH BAXTER, EVELYN BAXTER, DONALD BELCOURT, NORA BERNARD, JOHN BOSUM, JANET BREWSTER, RHONDA BUFFALO, ERNESTINE CAIBAIOSAI-GIDMARK, MICHAEL CARPAN, BRENDA CYR, DEANNA CYR, MALCOLM DAWSON, ANN DENE, BENNY DOCTOR, LUCY DOCTOR, JAMES FONTAINE in his personal capacity and in his capacity as the Executor of the Estate of Agnes Mary Fontaine, deceased, VINCENT BRADLEY FONTAINE, DANA EVA MARIE FRANCEY, PEGGY GOOD, FRED KELLY, ROSEMARIE KUPTANA, ELIZABETH KUSIAK, THERESA LAROCQUE, JANE McCULLUM, CORNELIUS McCOMBER, VERONICA MARTEN, STANLEY THOMAS NEPETAYPO, FLORA NORTHWEST, NORMAN PAUCHEY, CAMBLE QUATELL, ALVIN BARNEY SAULTEAUX, CHRISTINE SEMPLE, DENNIS SMOKEYDAY, KENNETH SPARVIER, EDWARD TAPIATIC, HELEN WINDERMAN and ADRIAN YELLOWKNEE THE PRESBYTERIAN CHURCH IN CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE UNITED CHURCH OF CANADA, THE BOARD OF HOME MISSIONS OF THE UNITED CHURCH OF CANADA, THE WOMEN'S MISSIONARY SOCIETY OF THE PRESBYTERIAN CHURCH, THE BAPTIST CHURCH IN CANADA, BOARD OF HOME MISSIONS AND SOCIAL SERVICES OF THE PRESBYTERIAN CHURCH IN BAY, THE CANADA IMPACT NORTH MINISTRIES OF THE COMPANY FOR THE PROPAGATION OF THE GOSPEL IN NEW ENGLAND (also known as THE NEW ENGLAND COMPANY), THE DIOCESE OF SASKATCHEWAN, THE DIOCESE OF THE SYNOD OF CARIBOO, THE FOREIGN MISSION OF THE PRESBYTERIAN CHURCH IN CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON, THE METHODIST CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE ANGLICAN CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE METHODIST CHURCH OF CANADA (ALSO KNOWN AS THE METHODIST MISSIONARY SOCIETY OF CANADA), THE INCORPORATED SYNOD OF THE DIOCESE OF ALGOMA, THE SYNOD OF THE ANGLICAN CHURCH OF THE DIOCESE OF QUEBEC, THE SYNOD OF THE DIOCESE OF ATHBASCA, THE SYNOD OF THE DIOCESE OF BRANDON, THE ANGLICAN SYNOD OF THE DIOCESE OF BRITISH COLUMBIA, THE SYNOD OF THE DIOCESE OF CALGARY, THE SYNOD OF THE DIOCESE OF KEEWATIN, THE SYNOD OF THE DIOCESE OF QU'APPELLE, THE SYNOD OF THE DIOCESE OF NEW WESTMINISTER, THE SYNOD OF THE DIOCESE OF YUKON, THE TRUSTEE BOARD OF THE PRESBYTERIAN CHURCH IN CANADA, THE BOARD OF HOME MISSIONS AND SOCIAL SERVICE OF THE PRESBYTERIAN CHURCH OF CANADA, THE WOMEN'S MISSIONARY SOCIETY OF THE UNITED CHURCH OF CANADA, SISTERS OF CHARITY, A BODY CORPORATE ALSO KNOWN AS SISTERS OF CHARITY OF ST. VINCENT DE PAUL, HALIFAX, ALSO KNOWN AS SISTERS OF CHARITY HALIFAX, ROMAN CATHOLIC EPISCOPAL CORPORATION OF HALIFAX, LES SOEURS DE NOTRE DAME- AUXILIATRICE, LES SOEURS DE ST. FRANCOIS D'ASSISE, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT- HYANCITHE, LES SOEURS DE JESUS-MARIE, LES SOEURS DE L'ASSOMPTION DE LA SAINTE VIERGE, LES SOEURS DE L'ASSOMPTION DE LA SAINT VIERGE DE L'ALBERTA, LES SOEURS DE LA CHARITE DE ST. HYACINTHE, LES OEUVRES OBLATES DE L'ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BRIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTREAL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITE DES T.N.O., HOTEL-DIEU DE NICOLET, THE GREY NUNS OF MANITOBA INC.-LES SOEURS GRISES DU MANITOBA INC., LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BRIE D'HUDSON — THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSON'S BAY, MISSIONARY OBLATES — GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE DU MANITOBA, THE ARCHIEPISCOPAL CORPORATION OF REGINA, THE SISTERS OF THE PRESENTATION, THE SISTERS OF ST. JOSEPH OF SAULT ST. MARIE, SISTERS OF CHARITY OF OTTAWA, OBLATES OF MARY IMMACULATE — ST. PETER'S PROVINCE, THE SISTERS OF SAINT ANN, SISTERS OF INSTRUCTION OF THE CHILD JESUS, THE BENEDICTINE SISTERS OF MT. ANGEL OREGON, LES PERES MONTFORTAINS, THE ROMAN CATHOLIC BISHOP OF KAMLOOPS CORPORATION SOLE, THE BISHOP OF VICTORIA, CORPORATION SOLE, THE ROMAN CATHOLIC BISHOP OF NELSON, CORPORATION SOLE, ORDER OF THE OBLATES OF MARY IMMACULATE IN THE PROVINCE OF BRITISH COLUMBIA, THE SISTERS OF CHARITY OF PROVIDENCE OF WESTERN CANADA, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION ARCHIEPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN CATHOLIC ARCHIEPISCOPAL CORPORATION OF WINNIPEG, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE PRINCE ALBERT, THE ROMAN CATHOLIC BISHOP OF THUNDER BAY, IMMACULATE HEART COMMUNITY OF LOS ANGELES CA, ARCHDIOCESE OF VANCOUVER — THE ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ROMAN CATHOLIC DIOCESE OF WHITEHOSE, THE CATHOLIC EPISCOPALE CORPORATION OF MACKENZIE-FORT SMITH, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF PRINCE RUPERT, EPISCOPAL CORPORATION OF SASKATOON, OMI LACOMBE CANADA INC. and MT. ANGEL ABBEY INC. Respondents (Respondents) ORIGINAL TO: THE REGISTRAR
COPIES TO: ATTORNEY GENERAL OF CANADA DEPUTY ATTORNEY GENERAL OF CANADA
Department of Justice Canada Department of Justice Canada Civil Litigation Sector Civil Litigation Sector 50 O'Connor Street, Suite 500 50 O'Connor Street, Suite 500 Fax: 613-954-1920 Fax: 613-954-1920
Per: Christopher Rupar/Alexander Pless Per: Christopher Rupar
Tel: 613-670-6290 / 514-283-8767 Tel: 613-670-6290 E-mail: [email protected] E-mail: [email protected] [email protected]
Counsel for the Appellant Agent for the Appellant
FARRIS, VAUGHAN, WILLS & DENTONS CANADA LLP MURPHY LLP
700 West Georgia Street, 25th Floor 1420 - 99 Bank Street Vancouver, BC V7Y 1B3 Ottawa, ON KIP 1H4
Per: Joseph J. Arvay, Q.C. Per: K. Scott McLean
Tel: 604-684-9151 Tel: 613-783-9665 Fax: 604-661-9349 Fax: 613-783-9690 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, the Chief Agent for the Respondent, the Chief Adjudicator Adjudicator
LAVERY, DE BILLY NOEL & ASSOCIES
4000 - 1, Place Ville-Marie 111, rue Champlain Montreal, QC H3B 4M4 Gatineau, QC J8X 3R1
Per: Pierre Baribeau Per: Pierre Landry
Tel: 514-877-2965 Tel: 819-771-7393 Fax: 514-871-8977 Fax: 819-771-5397 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, 9 Catholic Agent for the Respondent, 9 Catholic Entities Entities MCKERCHER LLP GOWLING WLG (CANADA) LLP
374 Third Avenue South 2600 — 160 Elgin Street Saskatoon, SK S7K 1M5 Ottawa, ON MP 1C3
Per: Michel G. Thibault Per: Jeffrey W. Beedell
Tel: 306-664-1264 Tel: 613-786-0171 Fax: 306-653-2669 Fax: 613-788-3587 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, 16 Catholic Agent for the Respondent, 16 Catholic Parties Parties
URSEL PHILLIPS FELLOWS SUPREME ADVOCACY LLP HOPKINSON LLP
30 St. Clair Avenue West, 10th Floor 100 — 340 Gilmour Street Toronto, ON M4V 3A1 Ottawa, ON K2P OR3
Per: Joanna Birenbaum Per: Marie-France Major
Tel: 416-969-3504 Tel: 613-695-8855 Ext: 102 Fax: 416-968-0325 Fax: 613-695-8580 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, National Agent for the Respondent, National Centre for Truth and Reconciliation Centre for Truth and Reconciliation
VINCENT DAGENAIS GIBSON LLP
400 — 260 Dalhousie Street Ottawa, ON K1N 7E4
Per: Charles M. Gibson
Tel: 613-241-2701 Fax: 613-241-2599 E-mail: [email protected]
Counsel for the Respondent, Sisters of St. Joseph of Sault Ste. Marie ASSEMBLY OF FIRST NATIONS SUPREME LAW GROUP
1600 —55 Metcalfe Street 900 — 275 Slater Street Ottawa, ON K1P 6L5 Ottawa, ON KlP 5H9
Per: Stuart Wuttke Per: Moira Dillon
Tel: 613-241-6789 Tel: 613-691-1224 Fax: 613-241-5808 Fax: 613-691-1338 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, Assembly of Agent for the Respondent, Assembly of First Nations First Nations
GRANT HUBERMAN, BARRISTERS & SUPREME LAW GROUP SOLICITORS
1620 — 1075 W. Georgia Street 900 — 275 Slater Street Vancouver, BC V6E 3C9 Ottawa, ON K1P 5H9
Per: Peter R. Grant Per: Moira Dillon
Tel: 604-685-1229 Tel: 613-691-1224 Fax: 604-685-0244 Fax: 613-691-1338 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, Inuit Agent for the Respondent, Independent Representatives Counsel
LEGAL OPINION NORTH SUPREME LAW GROUP
192 Stanley Ave., Unit B 900 — 275 Slater Street Ottawa, ON KIM 1P3 Ottawa, ON K1P 5H9
Per: Hugo Prud'homme Per: Moira Dillon
Tel: 613-983-1150 Tel: 613-691-1224 Fax: 866-488-3201 Fax: 613-691-1338 E-mail: [email protected] E-mail: [email protected]
Counsel for the Respondent, Inuit Agent for the Respondent, Inuit Representatives Representatives TABLE OF CONTENTS
PAGE
OVERVIEW 1
PART I FACTS 3
PART II ISSUES 3
PART III SUBMISSIONS 4
PART IV COSTS 10
PART V THE ORDER SOUGHT 10
PART VI LIST OF AUTHORITIES 11
PART VII LEGISLATION 11 OVERVIEW
1. The Order underlying the current appeal ousts the application of the Access to by(brmation
Act (ATIA) to all Independent Assessment Process (IAP) Documents, including those in the
possession of Aboriginal Affairs and Northern Development Canada (AANDC), a
government institution whose records are normally subject to this legislation. This Order
was issued by the Ontario Superior Court of Justice and upheld by the majority of the Court
of Appeal.
2. The ATIA serves important public interests and upholds values of accountability and
transparency of government action that are fundamental to safeguarding public trust in
government. These values are integral to promoting reconciliation, one of the fundamental
aims of the Indian Residential Schools Settlement Agreement (IRSSA). The Order under
appeal completely displaces the accountability and transparency functions served by the
ATIA.
3. Through the ATIA, Parliament has enacted a carefully balanced scheme by which Canadians
are entitled to exercise a quasi-constitutional right of access to government records, which
will be disclosed except where necessary exemptions have been applied to protect various
interests, including the privacy interests of individuals whose personal information appears
in requested records. When the ATIA' s provisions are applied to requested records, public
interests are served even where exemptions result in the disclosure of heavily redacted
records; even in such instances, the application of the ATIA allows the public to scrutinize
government action. The Order effectively excludes the public's right to know in relation to
the IAP Documents in issue in this appeal.
4. The Order also eradicates the core principle of the ATIA that government decisions resulting
in a refusal to disclose records be reviewed independently of the government, first by the Information Commissioner and subsequently by the Federal Court. Parliament has
established these independent review mechanisms as a constituent part of the public right of
access in order to ensure that government institutions do not have the final word in applying
the ATIA. Access decisions, including the initial decision that certain records are not under
the control of a government institution and therefore not subject to the ATIA, are wholly
subject to independent, objective review. The Order under appeal effectively prevents the
Information Commissioner and the Federal Court from performing this independent review
function in relation to IAP Documents, contrary to the intent of Parliament as expressed
unequivocally in the ATIA' s purpose provision.
5. The Information Commissioner submits that the above consequences and impact of the
Order should be factored into the analysis of whether the ATIA applies to the IAP
Documents in issue in this appeal,
2 PART I — FACTS
6. Ontario Superior Court of Justice Perell issued Reasons for Decision and an Order dated
August 6, 2014 (the Order). Justice Perell ordered inter alia that: (i) IAP Documents may
not be disclosed by anyone for any purpose other than resolving IAP Claims and paying
compensation; (ii) ultimately, the IAP Documents be destroyed by all persons or entities in
possession of such documents.
Order of Perell, J. at paras. 1, 4, 6-8, 10 Appeal Record, Volume I, Tab I, pp. 1-10.
7. The majority of the Court of Appeal for Ontario upheld the Order of Justice Perell (with
some variations). Justice Sharpe dissented. The majority determined that even though
AANDC is a government institution subject to the requirements of the ATIA and has
possession of the IAP documents, those records are not under its control and therefore the
ATIA does not apply to IAP documents.
Court of Appeal Judgment, Appeal Record, Volume I, Tab 3
PART II — ISSUES
8. The Information Commissioner addresses the following matters for consideration by the
Court:
(i) The ATIA serves an important public interest — the accountability and transparency of
government which engenders public trust in government. Parliament has enacted a
balanced scheme through the ATIA by which the public gains information even where
exemptions to access result in the disclosure of heavily redacted records. Ontario
Superior Court of Justice Perell's Order completely displaced the balanced scheme of
the ATIA and its accountability and transparency functions.
(ii) A core principle enshrined in the ATIA is that decisions of a government institution to
refuse access to records be independently reviewed by the Information Commissioner
3 and the Federal Court. The Information Commissioner and Federal Court's powers of
independent review mandated by the ATIA have been eradicated by Ontario Superior
Court of Justice Perell's Order contrary to the intent of Parliament.
PART III — SUBMISSIONS
A. THE ACCOUNTABILITY AND TRANSPARENCY FUNCTIONS OF THE ATIA
9. As this Court recognized in deciding its first case involving the ATIA, "[t]he overarching
purpose of access to information legislation is to facilitate democracy. It does so in two
related ways. It helps to ensure first, that citizens have the information required to participate
meaningfully in the democratic process, and secondly, that politicians and bureaucrats
remain accountable to the citizenry."
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 59-63 (per LaForest, J., dissenting but not on this point)
10. Moreover, as this Court noted in a more recent access to information case:
Access to information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions.
John Doe v. Ontario (Finance), 2014 SCC 36 at para. 1. See also Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para. 15; Statham v. CBC, 2010 FCA 315. at para. 1; Bronskill v. Canada (Canadian Heritage), 2011 FC 983, per Noel, J. at paragraphs 3-4.
11, This Court has also commented on the values that are served by balanced access legislation:
"Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Somevinformation in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance."
Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, per McLachlin, C.J. and Abella, J. for the Court at paragraph 1
4 12. In the current matter, the majority of the Court of Appeal recognized the ATIA's general
objectives of "promot[ing] transparency and aiming] to enhance democracy," but it did not
factor in these objectives in arriving at its determination that the Settlement Agreement
Operations Branch (SAO) of AANDC and the Indian Residential Schools Adjudication
Secretariat (Secretariat) did not have control of the IAP Documents it has in its possession.
The determination that IAP documents are not under AANDC's control was a necessary
finding for the majority of the Court of Appeal to uphold the Order issued by Justice Perell.
Court of Appeal Judgment, Appeal Record, Volume I, Tab 3 at paras. 146, 181.
13. The Order defines the term "IAP Documents" broadly to mean all records specifically
generated for use in an IAP Claim and as including any copies of records specifically
collected for use in an IAP claim. The definition contains a non-exhaustive list of records
that are IAP Documents. These include, for example, IAP application documents,
documents prepared by Canada for each IAP claim such as histories of the relevant Indian
Residential School, and records of adjudicators' decisions relating to IAP Claims. The Order
also requires the destruction of this entire corpus of records.
14. Displacing the ATIA and requiring the destruction of IAP Documents has significant
consequences. Most important is the loss of government accountability in relation to the
IAP. If the Order stands, factual data about the IAP will be inaccessible to the public and,
ultimately, lost. The Secretariat and SAO are currently able to provide the public with basic
data about the IAP because they have access to the IAP Documents from which these facts
are obtained. The IAP Documents answer questions such as how many IAP Claims were
received, how much money the government has paid out in IAP settlements and whether the
government provided all required records to the IAP . Ensuring the availability and accuracy
of such factual information through the existence of the IAP Documents from which this
5 information is compiled contributes to building trust in government which, in turn, facilitates
the reconciliation objectives of the IRSSA.
15. In enacting the ATIA, Parliament established a legislative scheme that carefully balances
various protected interests, including privacy interests, against competing interests in
disclosure. In exercising rights under the ATIA, requesters gain valuable information even
where exemptions to access result in the disclosure of highly redacted records (ATIA, s. 25).
Through this balanced scheme, Parliament has ensured that Canadians can access the
records from which public facts have been compiled and on which the government's public
statements have been based, while allowing for or requiring specific information within such
records, including personal information, to be exempted from disclosure. Access to such
records, in properly redacted form, contributes to the objectives of transparency and
accountability embodied by the ATIA. Because the Order ousted the application of the ATIA
to IAP Documents, members of the public have lost their quasi-constitutional right of access
to IAP Documents per se and the ability to scrutinize the government's actions in the IAP .
16. The Information Commissioner submits that the accountability and transparency functions
of the ATIA engender public trust in government and should be factored into the analysis of
whether the ATIA applies to the IAP Documents at issue in this appeal.
B. THE ORDER DEPRIVED CANADIANS OF THE ATIA's INDEPENDENT REVIEW MECHANISMS MANDATED BY PARLIAMENT
17. The ATIA enshrines the independent review of refusals of disclosure as a core principle (ss.
2(1)). This fundamental tenet reflects Parliament's intention not only that government
institutions are not to make final determinations about which records are or are not subject to
the ATIA, but also that Requesters have recourse to independent review mechanisms of such
decisions.
6 Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 at para. 121 (not appealed on this point).
18. As recognized by the Federal Court of Appeal, "[t]he key to interpreting the scope of the
right of access and of the exemptions is to be found in striking an appropriate balance
between the competing legislative policies that underlie them, a function for which a body
independent of the Executive is better suited than the institution resisting the request for
access."
3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 at para. 36.
19. The Information Commissioner of Canada performs the first level of independent review of
decisions taken by heads of government institutions under the ATIA. In carrying out this
mandate, the Information Commissioner has been referred to as one of the custodians of our
democracy.
Bronskill v. Canada (Canadian Heritage), 2011 FC 983, per Noel, J. at paragraph 10 Section 2, Access to Information Act
20. The ATIA empowers the Information Commissioner to examine records to determine
whether they are under the control of a government institution thus ensuring that the broad
right to government information entrenched in the ATIA is given full effect. Although the
Information Commissioner cannot make a binding decision about whether records are, or are
not, under the control of a government institution, her investigation performs a valuable fact
finding function in the determination of this issue and acts as a prerequisite to the Federal
Court making a legal determination.
Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 at paras. 32, 82 and 121 (not appealed on this point). See also Blank v. Canada (Minister of Justice), 2016 FCA 189, para. 30
21. The Order upheld by the majority of the Court of Appeal eradicates the ATIA' s core
principle of independent review. The Order effectively prohibits the Information
Commissioner and the Federal Court from independently reviewing the decision of a
7 government institution to refuse disclosure of records on the basis that those records are IAP
Documents subject to the Order and not subject to the ATM.
22. There are many records that are undoubtedly IAP Documents to which the Order applies.
However, there are undoubtedly also records which may or may not fall within the definition
of IAP Documents. For example, IAP Documents are defined as necessarily including "IAP
Personal Information." IAP Documents are also defined as not including "pre-existing
records generated or compiled for a purpose other than to be used in the TAP" but do include
"Canada's mandatory documents" which include documents gathered by the government
about the residential school the claimant attended, and a report written to summarize those
documents. Questions will arise about whether there are, for example, any documents
gathered by the government about the residential school which do not contain IAP Personal
Information, and therefore whether such records fall within the scope of TAP Documents.
23. Another example where there has already been uncertainty among the parties to the IRSSA
involved an instance where there was doubt about whether the government had additional
documents which should have been provided during the IAP but were not disclosed. The
Facta of the Assembly of First Nations (paras. 57-61) and the National Centre for Truth and
Reconciliation (para. 72) reference the non-disclosure of records by the Government of
Canada related to the St. Anne's Indian Residential School. The Information Commissioner
takes no position regarding this matter but cites it as an example of the government not
disclosing IAP Documents based upon its own interpretation of its disclosure obligations
(these records were subsequently ordered disclosed by Justice Perell in Fontaine v. Canada,
2014 ONSC 283). Where such matters arise under the IRS SA, parties to that agreement have
recourse to mechanisms for resolving the disagreements.
8 24. In contrast, under the ATIA, Parliament intended that all Canadians have recourse
mechanisms for resolving disagreements about the disclosure obligations of government
institutions. It is inevitable that when requests are made under the ATIA for records that may
or may not be IAP Documents to which the Order applies, disagreements will arise about
which records are under the control of a government institution and which records are
subject to the Order. The Order prohibits the Information Commissioner and the Federal
Court from reviewing IAP Documents which is contrary to the intention Parliament has
expressed in the ATIA and contrary to judicial interpretations that recognize that the ATIA
empowers the Information Commissioner to examine records to determine whether they are
under the control of a government institution to ensure that the broad right to government
information entrenched in the ATIA is given full effect.
Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 at para. 121 (not appealed on this point).
25. It is also highly likely that there will be real difficulties in complying with the obligations
under the ATIA when IAP Documents are required to be destroyed pursuant to the Order.
Anyone who has IAP Documents in their possession will be bound by the Order and
required to destroy these records. However, if there are any requests under the ATIA for
records which may or may not be IAP Documents, government institutions will have
obligations not to destroy those records. Indeed, if anyone destroys records with the intent to
deny a right of access under the ATIA, they will be committing an offense (ATIA, s. 67.1). It
is unclear how government institutions such as AANDC will meet their obligation to comply
with the Order, on the one hand, and to comply with the ATIA, on the other hand. In such
circumstances, there is a substantial risk that government institutions will adopt an
9 overbroad interpretation of the scope of application of the Order with the result that
information properly subject to the ATIA will be lost.
26. The Information Commissioner submits that the Order's eradication of the ATIA's core
principle of the independent review of a decision of the government institution to not
disclose IAP Documents should be factored into the analysis of whether the ATIA applies to
the records in issue in this appeal.
PART IV — COSTS
27. The Information Commissioner of Canada does not seek costs and respectfully requests that
no costs be awarded against the Information Commissioner of Canada.
PART V — THE ORDER SOUGHT
28. The Information Commissioner of Canada takes no position on the outcome of this appeal.
tclket Le•-t Date: May 11, 2017.
Gowling WLG Canada LLP Richard G learden
The Offic of the Information Commissioner of Canada Nancy Belanger Diane Therrien Adam Zanna
Counsel for the Intervener, the Information Commissioner of Canada
10
PART VI —– LISTLIST OF AUTHORITIES
Paras 1. Blank v. Canada (Minister of Justice), 2016 FCA 189 20 2. Bronskill v. Canada (Canadian Heritage), 2011 FC 983 10, 13, 19,19, 23 3. Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 17,17, 20, 24 4. 34309034309011 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 18 5. Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 10 6. Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 9 7. Fontaine v. Canada (Attorney General), 2014 ONSC 283 23 8. John Doe v. Ontario (Finance), 2014 SCC 36 10 9. Ontario (Public Safety and Security) v. Criminal Lawyers’Lawyers' Association, 2010 SCC 23 11 10. Statham v. Canadian Broadcasting Corporation, 2010 FCA 315 10
PART VII —– LEGISLATION
Paras 11. Access to Information Act, R.S.C. 1985, c. A-1A-1 section 2, 4, 25, 67.1 15, 17,17, 19, 25
OTT_LAW\OTT_LAW\ 7440710\17440710\1
11