Teresa Scassa - Blog

Tuesday, 26 September 2017 06:26

Bill C-58's Order-Making Powers: A Huge Disappointment

Written by  Teresa Scassa
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As part of Right to Know week, I participated in a conference organized by Canada’s Office of the Information Commissioner. My panel was asked to discuss Bill C-58, an Act to amend the Access to Information Act. I have discussed other aspects of this bill here and here. Below are my thoughts on the Commissioner’s order-making powers under that Bill.

Bill C-58, the Act to amend the Access to Information Act will, if passed into law, give the Information Commissioner order-making powers. This development has been called for repeatedly over the years by the Commissioner as well as by access to information advocates. Order-making powers transform the Commissioner’s recommendations into requirements; they provide the potential to achieve results without the further and laborious step of having to go to the Federal Court. This is, at least the theory. For many, the presence of order-making powers is one of the strengths of C-58, a Bill that has otherwise been criticized for not going far enough to reform a badly outdated access to information regime.

Before one gets too excited about the order-making powers in Bill C-58, however, it is worth giving them a closer look. The power is found in a proposed new s. 36.1, which reads:

36.‍1 (1) If, after investigating a complaint described in any of paragraphs 30(1)‍(a) to (d.‍1), the Commissioner finds that the complaint is well-founded, he or she may make any order in respect of a record to which this Part applies that he or she considers appropriate, including requiring the head of the government institution that has control of the record in respect of which the complaint is made

(a) to disclose the record or a part of the record; and

(b) to reconsider their decision to refuse access to the record or a part of the record.

Although this appears promising, there is a catch. Any such order will not take effect until after the expiry of certain periods of time. The first of these is designed to allow the head of the institution to ask the Federal Court to review “the matter that is the subject of the complaint.” The second time period is to allow third parties (for example, someone whose personal information or confidential commercial information might be affected by the proposed order) or the federal Privacy Commissioner to apply to the Federal Court for a review. (The reason why the Privacy Commissioner might be seeking a review is the subject of an earlier post here).

The wording of these provisions makes it clear that recourse to the Federal Court is neither an appeal of the Commissioner’s order, nor an application for judicial review. Instead, the statute creates a right to request a hearing de novo before the Federal Court on “the matter that is the subject of the complaint”. As we know from experience with the Personal Information Protection and Electronic Documents Act, such a proceeding de novo does not require any deference to be given to the Commissioner’s report, conclusions or order.

One need only compare these order-making powers with those of some of the Commissioner’s provincial counterparts to see how tentative the drafters of Bill C-58 have been. Alberta’s Freedom of Information and Protection of Privacy Act states simply “An order made by the Commissioner under this Act is final.”(s. 73) British Columbia’s statute takes an approach which at first glance looks similar to what is in C-58. Section 59 provides:

59. (1) Subject to subsection (1.1), not later than 30 days after being given a copy of an order of the commissioner, the head of the public body concerned or the service provider to whom the order is directed, as applicable, must comply with the order unless an application for judicial review of the order is brought before that period ends.

Like C-58, s. 59 of B.C.’s Freedom of Information and Protection of Privacy Act provides for a delay in the order’s taking effect depending on whether the head of the institution seeks to challenge it. However, unlike C-58, the head of the institution must seek judicial review of the order (not the matter more generally). Judicial review is based on the record that was before the original adjudicator. It is also a process that requires some deference to be shown to the Commissioner.

A report on the modernization of Canada’s access to information regime compared the current ombuds model with the order-making model. It found that the order making model was preferable for a number of cogent reasons. Two of these were:

  • It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the record that was before the adjudicator.
  • The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.

These are very sound reasons for moving to an order-making model. Unfortunately, the model provided in Bill C-58 does not provide these advantages. Because it allows for a hearing de novo, there is no incentive to put everything before the adjudicator – new evidence and arguments can be introduced before the Federal Court. This will do nothing to advance the goals of accountability and transparency; it might even help to obstruct them.

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