The Information Commissioner issued two subpoenas compelling the Deputy Minister of the Department of Citizenship and Immigration (the “CIC”) to produce records. The Attorney General’s application to set aside the subpoenas was granted on jurisdictional basis.

26. March 2002 0

Administrative law – Judicial review – Standard of review – Questions of jurisdiction – Correctness test – Access to information – Production of records – Extension of time – Investigative bodies – Powers

Canada (Attorney General) v. Canada (Information Commissioner), [2002] F.C.J. No. 177, Federal Court of Canada – Trial Division, February 6, 2002, Kelen, J.

In March 2000, a person, the “access requestor”, filed a request for access to records of the CIC under the Access to Information Act, R.S.C. 1985 c.A-1 (the “Act”). Under section 7(a) of the Act, the CIC had 30 days after the request was received to give written notice to the access requestor. CIC extended the time limit to three years under subsection 9(1)(a) of the Act which allows an extension where the request is for a large number of records. The access requestor filed a complaint with the Information Commissioner that the extended time limit was unreasonable. The Information Commission conducted an investigation under the Act. The information commissioner concluded that the extension of time was unreasonable. The information commissioner advised that he would compel the production of records if his recommendations were not followed.

On November 22, 2000, the Information Commissioner subpoenaed the records of the CIC in the form of an “Order With Respect to Production of Records”, pursuant to section 36 of the Act requiring the Deputy Minister to produce all records to the Respondent by December 7, 2000. On December 7, 2000, the Attorney General commenced an Application to set aside the Subpoena. Four days after the legal action was commenced, the Respondent issued a second subpoena directed at the CIC, ordering that the same documents referred to in the first order be produced. On December 20, 2000, the Attorney General filed an Application for a Judicial Review of the second subpoena as well. In reviewing the subpoenas, the court held that both subpoenas were made without jurisdiction and were set aside for the following reasons:

  1. the first subpoena was outside the jurisdiction of the information commissioner because the information commissioner had concluded his investigation pursuant to subsection 30(1)(c) of the Act with respect to the complaints that the three-year extension of time was unreasonable;
  2. there was no “deemed refusal to provide access” because the extended time periods had not elapsed;
  3. the information commissioner did not have any jurisdiction to self-initiate a complaint and investigation pursuant to subsection 30(3) with respect to a “deemed refusal to provide access” because there was clearly no “deemed refusal to provide access” under the Act; and
  4. the second subpoena or Order to Produce Documents was outside the jurisdiction of the Respondent.

The Application for Judicial Review was allowed with costs to the Applicants.

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