Statham v. Canadian Broadcasting Corporation, 2010 FCA 315

June 2014

Summary: The Federal Court of Appeal discussed the procedure to challenge a deemed refusal (i.e. a failure to provide requested documents within the statutory time limit). While this appeal was about the Access to Information Act, the Privacy Act is virtually identical in its treatment of deemed refusals; therefore, the principles in this decision apply equally to a deemed refusal under the Privacy Act.

Facts: Between September 1, 2007 and December 12, 2007 the Appellant filed approximately 400 access to information requests to the Canadian Broadcasting Corporation (“CBC”). The CBC failed to respond to those requests within 30 days as required by the Access to Information Act, and so the appellant submitted 389 complaints to the Information Commissioner. The Information Commissioner did not investigate the complaints as if there had been a final refusal to grant access. Instead, the Information Commissioner decided that the CBC had been overwhelmed by the volume of requests and that it would require a reasonable amount of time to respond to them. On March 28, 2008 the Information Commissioner wrote to the Appellant to inform him that the CBC had promised to respond to all of his requests by April 1, 2009 and that he considered the matter resolved.

The Appellant was not satisfied with that result and brought an application in Federal Court under s. 41 of the Access to Information Act. The CBC did not respond to 38 of the access requests by April 1, 2009. However, the CBC did complete the remaining 38 access requests five days before the Federal Court heard the application for judicial review. The Federal Court dismissed the application, concluding that the Information Commissioner had “cured” the failure to provide the information on time by concluding that the CBC should have more time and declaring that that the complaint had been resolved.

Result: The Federal Court of Appeal concluded that the default had not been “cured” by the Information Commissioner’s recommendation, but still did not grant any relief for the Appellant aside from his court costs.

Decision: The Court of Appeal listed seven issues that it considered in that appeal, which were considered and dealt with as follows.

1. Was the appeal moot because the CBC had responded to the access requests before the application was heard? The Court of Appeal agreed with the Federal Court that the application was moot. Once all of the access requests had been responded to, the rights of the parties in relation to those responses could not be affected by any decision in the application. However, the Court of Appeal agreed with the Federal Court that the application raised issues of general importance and, therefore, the appeal should be heard despite being moot.
2. What is the effect at law of a deemed refusal of access? The Court of Appeal confirmed that there is no legal distinction between a refusal and a deemed refusal (i.e. failing to disclose the information within the 30-day time limit).
3. May the Commissioner limit her investigation to establishing a time frame to respond to the access request? The Court of Appeal concluded that the Information Commissioner has the discretion to limit her investigation of a deemed refusal to recommending a time frame in which a government institution is to respond to the access request.
4. Can the Commissioner “cure” the deemed refusal by granting more time? The Court of Appeal concluded that the Commissioner cannot “cure” a deemed refusal. The role of the Commissioner is to make non-binding recommendations to the relevant government institution. The Commissioner has no authority to order the disclosure of any record; similarly, the Commissioner has no authority to grant a government institution a binding extension of time.
5. Could the Appellant apply to the Federal Court for judicial review prior to the expiry of the extension of time? The Court of Appeal confirmed that a person can apply to Federal Court about a deemed refusal as well as an actual refusal. There are only three prerequisites that must be met before an access requester may apply to the Federal Court under s. 41 of the Access to Information Act: (a) the applicant must have been refused access (including a deemed refusal) to a requested record; (b) the applicant must have complained to the Commissioner about the refusal; and (c) the applicant must have received a copy of the Commissioner’s report.
6. Did the Federal Court err by not granting a declaration against the CBC? The Federal Court of Appeal refused to grant a declaration against the CBC because the Appellant did not complain to the Commissioner about the reasonableness CBC’s conduct and his notice of application did not request a declaration.
7. Did the Federal Court err by awarding costs against the Appellant? The Federal Court of Appeal concluded that s. 53 of the Access to Information Act – which states that a Court “shall” order costs in favour of an applicant who raises an important new principle in relation to the Act – means that the Appellant should have received his costs in Federal Court. In light of both courts’ conclusion that the otherwise moot application should be heard because of its broader public interest, s. 53 of the Act applied.