2017 FCA 133, 2017 FCA 133

[2018] 2 F.C.R. 269 A-414-15 2017 FCA 133 James Paul in his capacity as President of Defence Construction Canada

(1951) Limited a.k.a. Defence Construction Canada; the said Defence Construction Canada

(1951) Limited a.k.a. Defence Construction Canada; and the Attorney General of Canada ( Appellants ) v. Ucanu Manufacturing Corp. ( Respondent ) and The Information Commissioner of Canada ( Intervener ) Indexed as: Defence Construction Canada v. Ucanu Manufacturing Corp. Federal Court of Appeal, Stratas, Boivin and Rennie JJ.A.—Ottawa, November 1, 2016 and June 22, 2017.

Access to Information — Mandatory exemptions from disclosure —Appeal from Federal Court decision holding that certain records sought by respondent under Access to Information Act (Act) should be disclosed — Appellant producing records, refusing to disclose others following respondent’s request for information — Relying upon exemptions under Act, ss. 19(1) , 20(1) (b) — Federal Court not agreeing that undisclosed records properly exempt pursuant to s. 20(1)(b) — Appellant asserting, for first time before Federal Court, mandatory exemption from disclosure in Defence Production Act , s. 30 — Federal Court refusing appellant’s request for adjournment to file evidence in support of claim to mandatory exemption, ordering release of records — Whether Defence Production Act, s. 30 applying herein if raised at late stage; whether ever too late to assert mandatory exemption in Access to Information Act proceedings — Per Stratas J.A. (Rennie J.A. concurring): Federal Court’s conclusion preordained by its refusal to grant late request for adjournment — Federal Court bound to allow appellant opportunity to adduce evidence supporting late assertion of mandatory exemption — Dealing with issue without evidence before it — Committing error in principle — Court refraining herein from determining jurisprudential issue — Decisions having to be based on legal principle, doctrine; otherwise legitimately open to attack — Such decision would bind future panels of Court even if misleading — Folly to nibble at jurisprudential issue through one-off rulings — Here, appellant’s interest in confidentiality not known — Matter remitted to Federal Court for redetermination — Appeal allowed — Per Boivin J.A. (dissenting): Court cannot intervene, overrule Federal Court order denying appellant’s request for adjournment as that order not appealed, challenged herein — Open to Federal Court to rule upon jurisprudential issue in way it did — Federal Court correctly rejecting contention that government institution may late-claim mandatory exemption under Act, s. 24(1) — Exemptions having to be put before intervener during investigation — Allowing late-claim exemptions would deny requestors benefit of mechanism vested in intervener’s mandate — General principle that mandatory exemptions cannot be late-claimed sound when considering Act’s objective, overall scheme.

This was an appeal from a Federal Court decision holding that certain records sought by the respondent under the Access to Information Act (Act) should be disclosed. The respondent submitted an information request seeking records related to a contract awarded to a joint venture for the construction of a maintenance hangar on an air force base. The appellant, Defence Construction Canada, a government institution holding the records, produced many records but refused to disclose others. It relied upon two exemptions, subsection 19(1) of the Act (personal information) and paragraph 20(1) (

b) of the Act (third-party’s confidential commercial information). Upon investigation, the intervener found that the undisclosed records were properly exempt from disclosure. The Federal Court agreed with the intervener’s finding concerning the exemption in subsection 19(1), but not the exemption in paragraph 20(1)(b). The appellant asserted for the first time before the Federal Court the mandatory exemption from disclosure found in

section 30 of the Defence Production Act . By order, the Federal Court refused the appellant’s request for an adjournment to file evidence in support of its claim to the mandatory exemption, concluding that it was too late to assert the mandatory exemption. The Federal Court allowed the respondent’s application and ordered the records to be released. Two issues were raised in this case. The first was a fact-based issue: whether

section 30 of the Defence Production Act applies on the facts of this case if it can be raised at a late stage. The other was a jurisprudential issue: whether it is ever too late to assert a mandatory exemption in Access to Information Act proceedings. Held (Boivin J.A. dissenting), the appeal should be allowed. Per Stratas J.A. (Rennie J.A. concurring): The Federal Court’s conclusion was preordained by its refusal to grant the appellant’s late request for an adjournment.

Put another way, the Federal Court’s denial of the adjournment in effect decided the substantive issue— whether the mandatory exemption could be asserted late—without the benefit of evidence before it. In these particular circumstances, the late nature of the assertion of the exemption and the need to file evidence in support of it could not be, by itself, a sufficient ground to refuse the adjournment so that the issue of lateness could be considered. The Federal Court was bound to allow the appellant an opportunity to adduce evidence supporting its late assertion of the mandatory exemption.

Without the evidence before it, the Federal Court could not embark upon a proper consideration of this issue. Yet, it dealt with the issue. This was an error in principle permitting the Court to intervene. The Court refrained from determining the jurisprudential issue in this case, considering it unwise to express a definitive, binding-for-all- time view on the jurisprudential issue. While it might be tempting for some to nibble a bit at the jurisprudential issue by making a one- off ruling that avoids a discussion of legal principle, this approach is troubling.

Courts must reach decisions based on legal principle and doctrine. If legal principle and doctrine are not offered in support of a decision, there probably isn’t any. Decisions made merely “on the

basis of all the facts” or “fairness” emanate from personal preferences rather than legal principle and doctrine and are legitimately opento attack based on the constitutional principle of the rule of law. Finally and more practically, such a decision would be a precedentbinding future panels of this Court. The precedent may be misleading and may wrongly influence later cases. Mandatory exemptionscome in all different shapes and sizes under different statutes with different purposes with different statutory wording.

Until thejurisprudential issue is comprehensively settled, it is folly to nibble at it through one-off rulings. In this case, the appellant’s interest inconfidentiality was not known because the appellant was not permitted to adduce evidence in support of the mandatory exemption. Toresolve the jurisprudential issue, the Court would need to be acquainted with all the institutions in

Schedule II to the Act andconfidentiality interests recognized by Parliament. The judgment of the Federal Court was set aside. The matter was remitted to the Federal Court to receive evidence from the partiesconcerning the exemption under

section 30 of the Defence Production Act, including why it was asserted late, and to redetermine thematter. Per Boivin J.A. (dissenting): The Federal Court order denying the appellant’s request for an adjournment was issued as a separatedecision prior to the decision under appeal. The order was not appealed. Moreover, nowhere before the Court was the order challenged.On this basis alone, the Court could not intervene and overrule the order. Even assuming that it was open to the Court to decide thisappeal, there was no reviewable factual or legal error.

In the circumstances, it was open to the Federal Court to rule upon thejurisprudential issue in the way it did based on the record before it. The Federal Court correctly rejected the contention that a government institution such as the appellant may late-claim a mandatoryexemption under subsection 24(1) of the Act. The consensus that emerges from the case law is that a government institution cannot late-claim an exemption, including a mandatory one, if that exemption was not put before the intervener during the investigation.

The FederalCourt properly highlighted the concern that permitting a government institution to late-claim exemptions would deny requestors thebenefit of the mechanism vested in the intervener’s mandate. The general principle that mandatory exemptions cannot be late-claimed issound when considering the Act’s objective and overall scheme, and giving effect to the intervener’s role and mandate. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 10(1), 19(1), 20(1)(b), 24, Sch. II. Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 1(d).

Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 2(b). Defence Production Act, R.S.C., 1985, c. D-1, s. 30. Federal Courts Act, R.S.C., 1985, c. F-7, s. 27(1)(c). Federal Courts Rules, SOR/98-106, r. 110(b). Privacy Act, R.S.C., 1985, c. P-21. CASES CITED CONSIDERED: Canada (Information Commissioner) v. Canada (Minister of National Defence) (1999), 240 N.R. 244, 166 F.T.R. 277 (F.C.A.);Davidson v. Canada (Solicitor General), (FCA), [1989] 2 F.C. 341, (1989), 36 Admin.

L.R. 251 (C.A.), affg (FC), [1987] 3 F.C. 15, (1987), 41 D.L.R. (4th) 533 (T.D.); Canada (Information Commissioner) v. Canada (Minister ofthe Environment), 2003 FCA 68, 224 D.L.R. (4th) 498; Steel v. Canada (Attorney General), 2011 FCA 153, [2013] 1 F.C.R. 143;Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, (1987) 38 D.L.R. (4th) 161. REFERRED TO: Whitty v. Canada (Attorney General), 2014 FCA 30, 460 N.R. 372; Statham v. Canadian Broadcasting Corporation, 2010 FCA 315,[2012] 2 F.C.R. 421, 326 D.L.R. (4th) 228; Canadian National Railway Company v.

Emerson Milling Inc., 2017 FCA 79; GeophysicalService Inc. v. Canada Newfoundland Offshore Petroleum, 2003 FCT 507, 26 C.P.R. (4th) 190; Rubin v. Canada (Minister of Health),2001 FCT 929, 210 F.T.R. 84, affd 2003 FCA 37, 23 C.P.R. (4th) 312; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; HospiraHealthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331; Housen v. Nikolaisen, 2002 SCC33, [2002] 2 S.C.R. 235; Canada (Office of the Information Commissioner) v. Canada (National Defence), 2015 FCA 56, [2016] 1F.C.R. 213; Blank v. Canada (Justice), 2016 FCA 189, 7 Admin.

L.R. (6th) 30; Canadian Broadcasting Corporation v. Canada(Information Commissioner), 2010 FC 954, 377 F.T.R. 100, affd 2011 FCA 326, 344 D.L.R. (4th) 341. AUTHORS CITED Cardozo, Benjamin N. The Nature of the Judicial Process, New Haven: Yale University Press, 1921. Kellogg, Frederic R. “Law, Morals, and Justice Holmes” (1986), 69 Judicature 214 APPEAL from a decision of the Federal Court (2015 FC 1001) holding that certain records sought by the respondent under the Access toInformation Act should be disclosed. Appeal allowed, Boivin J.A. dissenting. APPEARANCES

Kirk Shannon for appellants. No one appearing for respondent. Louisa Garib and Richard G. Dearden for intervener. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellants. Information Commissioner of Canada , Gatineau, Quebec, and Gowling WLG (Canada) LLP , Ottawa, for intervener. The following are the reasons for judgment rendered in English by [ 1 ] Stratas J.A.: The appellants appeal from the judgment dated August 24, 2015 of the Federal Court ( per Southcott J.): 2015 FC 1001 .

The Federal Court held that certain records sought by the respondent, Ucanu Manufacturing, under the Access to Information Act , R.S.C., 1985, c. A-1 [the Act] should be disclosed. [ 2 ] For those unfamiliar with the Act , some brief background may assist. Under the Act, a person can file an information request against a government institution. The government institution holding the information responds. It can assert mandatory and optional exemptions to disclosure. The person requesting the information can complain about the assertion of the exemptions to the Information Commissioner.

In turn, the Information Commissioner can investigate and report on whether exemptions apply. After that, an appeal may be made to the Federal Court to determine the issue. [ 3 ] In this case, Ucanu Manufacturing submitted its information request. It sought records related to a contract awarded to a joint venture for the construction of a maintenance hangar on the Trenton air force base. [ 4 ] The government institution holding the records, the appellant Defence Construction Canada, produced many records in response. But it refused to disclose certain others.

It relied upon two exemptions, subsection 19(1) of the Act (personal information) and paragraph 20(1) (

b) of the Act (third-party’s confidential commercial information). [ 5 ] Ucanu Manufacturing complained to the Information Commissioner. The Information Commissioner investigated Ucanu Manufacturing’s complaint. During the investigation, Defence Construction Canada disclosed some further records, but not all of them. [ 6 ] The Information Commissioner concluded her investigation. She issued her report. She found that the undisclosed records were properly exempt from disclosure.

Ucanu Manufacturing applied to the Federal Court for review of the matter, seeking disclosure of the records. [ 7 ] One part of the Federal Court’s decision is before us. Another is not. [ 8 ] In the part not before us, the Federal Court agreed with the Information Commissioner’s finding concerning the exemption in subsection 19(1) of the Act but came to a different conclusion regarding the exemption in paragraph 20(1) (

b) of the Act. As a result, the Federal Court ordered that the records—portions of the joint venture agreement and a cover letter to Defence Construction Canada enclosing the joint venture agreement—be disclosed. In this Court, the appellants do not challenge the Federal Court’s findings on these matters. [ 9 ] The part before us concerns what happened in a late stage in this matter, when it arrived at the Federal Court. Defence Construction Canada asserted for the first time a new mandatory exemption from disclosure found in

section 30 of the Defence Production Act , R.S.C., 1985, c. D-1, an exemption that applies due to

section 24 of the Access to Information Act and

Schedule II to the Act. [ 10 ]

Section 30 provides as follows: Non-disclosure of information 30 No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business, except (

a) to a government department, or any person authorized by a government department, requiring the information for the purpose of the discharge of the functions of that department; or (

b) for the purposes of any prosecution for an offence under this Act or, with the consent of the Minister, for the purposes of any civil suit or other proceeding at law. [ 11 ] In this case, when the government institution, Defence Construction Canada, responded to Ucanu Manufacturing’s information request, it did not assert the mandatory exemption under

section 30 of the Defence Production Act . Nor did it assert the mandatory exemption during the Information Commissioner’s investigation. Only after the matter arrived in the Federal Court did it assert it. [ 12 ] Defence Construction Canada asked the Federal Court for an opportunity to file “further materials including supplementary submissions” (at paragraph 15). I take “further materials” to mean that Defence Construction Canada sought to file evidence in support of its claim to the mandatory exemption.

The respondent opposed, noting that “the statutory exemption now raised by [Defence Construction Canada] had not been previously relied on by [it] in this matter including in [its] initial response” to the information request (at paragraph 15). The Federal Court refused Defence Construction Canada’s request, only giving it an opportunity to file “submissions” after the hearing, if necessary.

[ 13 ] Defence Construction Canada asked the Federal Court to consider that it “carries out a mandate pursuant to the [ Defence Production Act ] and that the information at issue … can be characterized as having been obtained by [it] under or by virtue of that statute” (at paragraph 77). However, the Federal Court held that it was too late for Defence Construction Canada to assert the mandatory exemption. Thus, the Federal Court refused to consider arguments on the “substantive issue of the application of that exemption” (at paragraph 88). Nor could it.

It had not given Defence Construction Canada the opportunity to file evidence on this issue. In the end, the Federal Court allowed Ucanu Manufacturing’s application and ordered the records to be released. [ 14 ] In this Court, the appellants, including Defence Construction Canada, ask that the Federal Court’s judgment be overturned and all of the records be withheld from disclosure because of the mandatory exemption. [ 15 ] For the reasons set out below, I would allow the appeal. A.

The submissions of the parties [ 16 ] In this Court, the appellants submit that a mandatory exemption, such as the one here, can be asserted at any time. The appellants also submit that on the evidentiary record before us the mandatory exemption in

section 30 of the Defence Production Act applies. [ 17 ] The Information Commissioner supports the result reached by the Federal Court. She submits that there must be restrictions on the ability of a government institution to assert a mandatory exemption at a late stage, well after its response to an information request. Among other things, the Information Commissioner submits that late assertion of exemptions bypasses important rights and protections under the Act such as the Commissioner’s power to investigate and to report. B. The issues [ 18 ] The parties raise two issues before us:

(1) The fact-based issue . If

section 30 of the Defence Production Act can be raised at a late stage, does it apply on the facts of this case?

(2) The jurisprudential issue. Can

section 30 of the Defence Production Act be raised at a late stage? Put another way, in Access to Information Act proceedings, is it ever too late to assert a mandatory exemption? C. Analysis

(1) The fact-based issue [ 19 ] The Federal Court found that it was too late for the appellants to assert the mandatory exemption. It did not examine the fact- based issue—whether the mandatory exemption applies on the facts of this case. [ 20 ] Key to the Federal Court’s conclusion that it was too late for the appellants to assert the mandatory exemption is its earlier ruling that it would not allow Defence Construction Canada an adjournment to file evidence on the point.

Here is the relevant portion of the reasons (at paragraph 16): By Order dated July 9, 2015, being guided by the Notice to the Profession issued by Chief Justice Crampton dated May 8, 2013, I denied the request for an adjournment, on the basis that the request did not raise exceptional and unforeseen circumstances, including those that are outside the control of a party or its counsel.

However, my Order advised that I would hear counsel at the hearing, including on the possibility of supplementary written submissions following the hearing, on the following two issues that I concluded were raised by their correspondence with the Court: A. whether the respondent should be permitted to rely on the additional statutory exemption at this stage in the proceeding; and B. if so, the effect of such exemption on the merits of this application. [ 21 ] I construe this as saying that Defence Construction Canada could not file evidence to support the mandatory exemption and to justify its late assertion because the request to do so was too late. [ 22 ] There is a certain circularity here.

In effect, the fact that the mandatory exemption was asserted late meant that a request to file evidence could only be made late and that lateness was used to prevent consideration of whether the exemption could be asserted late. In my view, the Federal Court’s conclusion was preordained by its refusal to grant Defence Construction Canada’s late request for an adjournment. Put another way, the Federal Court’s denial of the adjournment in effect decided the substantive issue—whether the mandatory exemption could be asserted late—without the benefit of evidence before it.

Defence Construction Canada was denied the opportunity to explain why the mandatory exemption ought to be considered despite its lateness because it was late.

This intimately relates to the issues raised in the notice of application before the Federal Court, its ability to deal with the issue of the mandatory exemption, and the notice of appeal that raises the mandatory exemption before us. [ 23 ] In these particular circumstances, the late nature of the assertion of the exemption and the need to file evidence in support of it could not be, by itself, a sufficient ground to refuse the adjournment so that the issue of lateness could be considered.

In these particular circumstances, the Federal Court was bound to allow Defence Construction Canada an opportunity to adduce evidence supporting its late assertion of the mandatory exemption. That evidence might have shed light on why the exemption was being asserted late and why it should be allowed to be asserted late. It might also have identified and explained the rationale underlying some of the confidentiality interests at stake. With that evidence before it, the Federal Court could have considered the mandatory exemption and the jurisprudential issue and the fact-based issue associated with it.

Without the evidence before it, the Federal Court could not embark upon a proper consideration of this issue. Yet, it dealt with the issue. In my view, this was an error in principle permitting this Court to intervene. [ 24 ] Thus, for this reason alone, I would allow the appeal and set aside the Federal Court’s judgment. It should redetermine on the

basis of a full evidentiary record whether Defence Construction Canada can assert a mandatory exemption at a late stage and, if so,whether the mandatory exemption is made out on the facts of this case. [25] I have read my colleague’s dissenting reasons. Among other things, he suggests that the issue of the adjournment is not before usbecause the appellant did not challenge it in the notice of appeal. As I have explained above, the issue is part and parcel of the merits ofthe appeal and cannot be separated from it.

In effect, the issue is before us by necessary implication. [26] Further, my colleague states that after the Federal Court refused the adjournment to permit the appellant to file evidence, “theFederal Court expressly ordered that it would hear counsel on the issue of the late-claimed exemption, including the possibility of filingsupplementary written submissions in this regard following the hearing”. He also notes that in the hearing before the Federal Court theparties agreed no further written submissions were necessary.

But the Federal Court gave the parties only the right to file legalsubmissions, not evidence. As I have explained above, the Federal Court’s refusal to grant Defence Construction Canada’s late requestfor an adjournment to allow the appellant to adduce further evidence preordained the conclusion on the merits of the mandatoryexemption and further legal submissions would not have sufficed. [27] Finally, my colleague raises the standard of review. I agree with his articulation of it. However, as I have said above, there is anerror of principle permitting this Court to intervene.

(2) The jurisprudential issue [28] Should this Court give guidance on the jurisprudential issue in this case? All parties urge us to settle it. Both provided helpfulsubmissions on it. [29] In particular, the Information Commissioner proposes the following analytical framework for this Court to consider whendeciding whether a government institution can assert a mandatory exemption at a late stage: 1. Could the government institution have reasonably raised the mandatory exemption sooner, for example: (

a) in the notice of the requester under s. 10(1) of the [Access to Information Act] where access was initially refused; (

b) at any time during the Information Commissioner’s investigation; (

c) at the earliest possible occasion in the court proceedings. 2. What is the underlying interest that the mandatory exemption seeks to protect and what are the consequences of disclosing the recordsat issue? 3. What is the prejudice to the requester and their access rights if the new exemption is considered at that stage of the proceedings? 4. Will allowing new issues to be raised at that stage of the proceedings unduly delay the hearing of the application and consequently,access to information for the requester? 5.

Is it in the interests of justice to allow the exemption to be raised? [30] Helpfully, the Information Commissioner also suggests a detailed procedure by which a government institution could assert amandatory exemption at a late stage and still be fair to all concerned. [31] The jurisprudential issue has been the subject of a few decisions. These decisions touch on small aspects of the issue or speak inobiter. None of them deal with it comprehensively and definitively. The point remains completely open in this Court.

It is a complex one,with compelling considerations on either side. [32] On one side is the importance of the investigatory stage that takes place after a complaint has been made. This has been said to bea “cornerstone of the access to information system”: Canada (Information Commissioner) v. Canada (Minister of National Defence)(1999), 240 N.R. 244, 166 F.T.R. 277 (F.C.A.).

The completion of the investigatory stage under the Act is a condition precedent to anylater review by the Federal Court of a government institution’s decision to refuse access to records requested under the Act: Whitty v.Canada (Attorney General), 2014 FCA 30, 460 N.R. 372, at paragraphs 8–9; Statham v. Canadian Broadcasting Corporation, 2010 FCA315, [2012] 2 F.C.R. 421, 326 D.L.R. (4th) 228, at paragraph 55. Issues that go to subject-matter jurisdiction cannot be ignored:Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, at paragraphs 8–10.

Allowing a government institution toassert a ground for exemption for the first time when the matter is before the Federal Court bypasses these protections: Davidson v.Canada (Solicitor General), (FCA), [1989] 2 F.C. 341 (C.A.), at pages 347–348; Geophysical Service Inc. v. CanadaNewfoundland Offshore Petroleum, 2003 FCT 507, 26 C.P.R. (4th) 190. Thus, according to the Information Commissioner, there must belimits on raising mandatory exemptions at a late stage. [33] On the other side is the mandatory nature of the exemptions themselves.

Some mandatory exemptions relate to very importantmatters such as national security. Indeed, it would be strange if the inadvertent or negligent handling of an information request had theeffect of foreclosing recourse to a mandatory exemption and allowing a highly injurious document to be released. This was in the mind ofthe Federal Court when it commented, in obiter, that it was “an open question whether the failure on the part of the head of a governmentinstitution to properly identify the grounds for refusal of disclosure could ultimately compel disclosure that is contrary to the nationalinterest”: Davidson v.

Canada (Solicitor General), (FC), [1987] 3 F.C. 15 (T.D.) (Davidson) [at page 22]. [34] In only one case did this Court suggest that a mandatory exemption could be asserted late: Canada (Information Commissioner)v. Canada (Minister of the Environment), 2003 FCA 68, 224 D.L.R. (4th) 498. However, it did so on the ground that the governmentinstitution believed that the documents were outside of the purview of the Act and so it was natural that it would not consider the issue ofmandatory exemptions. The case contains no other explanation as to why the mandatory exemption could be asserted late.

[ 35 ] The Federal Court noted much of the above jurisprudence (at paragraphs 79–88). It observed correctly that the jurisprudential issue has never been settled by this Court: see, e.g., Davidson , above and Rubin v. Canada (Minister of Health) , 2003 FCA 37 , 23 C.P.R. (4th) 312, both of which explicitly declined to deal with it. The Federal Court did cite some earlier decisions from the Federal Court, not binding on us, that held that it was too late to assert the mandatory exemption.

So it concluded, only on the basis of these Federal Court cases, that it was too late to assert the mandatory exemption in this case (at paragraph 88). [ 36 ] But the earlier Federal Court cases relied upon by the Federal Court do not examine the jurisprudential issue in a fulsome way. In these cases, there is no comprehensive analysis of the compelling considerations on either side, some of which are set out above. The cases do not conduct a full examination of the text of the Act , construed in light of its context and purpose.

This is not meant as criticism: courts are often limited by the restricted or inadequate nature of the submissions they receive. [ 37 ] Should this Court comprehensively settle this jurisprudential issue in this case? This sort of question sparks debates in and around judges’ chambers more than counsel might think. [ 38 ] Most judges are rather flexible in their answers to this question. But for illustrative purposes, there are two discernable schools of thought. One says that courts should only deal with issues that are necessary for the disposition of the case.

The other says that where possible, courts should resolve jurisprudential points to provide clarity and reduce litigation. Once in a while, along this age-old fault line, a case comes along—like this one—that causes a quake. [ 39 ] Like many such debates, the best answer is “it all depends”. I had occasion to comment on this in Steel v. Canada (Attorney General) , 2011 FCA 153 , [2013] 1 F.C.R. 143 , at paragraphs 65–66 and 68 : … A minimal approach to judicial decision-making usually has great merit.

Under this approach, sometimes called “judicial minimalism,” we fashion solutions that are practical, routine, and uncontroversial and apply them to the cases before us, avoiding broad, unnecessary pronouncements. Sometimes, in search of solutions, we might consider a modest reform to our judge-made law. But we reform it only if necessary and appropriate, only as little as necessary, and always subject to Parliament’s laws which bind us.

When we discard judicial minimalism and, instead, gratuitously pronounce sweeping legal principles, we expose ourselves to the charge that we are law-making — a task beyond our remit, unelected as we are. Also, without the real-life facts that inform our pronouncements, temper our judgment, and keep us accountable, we are more likely to be wrong, more likely to cause disorder, and more likely to injure. … But too great a devotion to judicial minimalism sometimes can impose too great a cost. Pressing issues can linger and fester, and litigants may suffer for that. [ 40 ] More on this can be said.

On the one hand, developing the jurisprudence in a minimal way merely for the sake of minimalism may be counterproductive, inefficient, and contrary to the new litigation culture advocated by the Supreme Court: Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87. Developing the jurisprudence beyond the needs of a particular case might bring order to an area badly in need of it and might save wasteful, unnecessary litigation in the future. Additionally, in some contexts an important jurisprudential issue does not arise very often as a practical matter, giving rise to a concern that the issue is evasive of review.

For example, in this case, the Information Commissioner cannot raise the jurisprudential issue very often because of resource limitations. Finally, there are cases like this, where counsel have been of great assistance and have done their best to empower us to decide it. [ 41 ] But, on the other hand, some jurisprudential issues do not admit of an easy solution: judicial economy and the desire to solve it properly favour leaving it for another day.

Sometimes, the settlement of the jurisprudential issue has high-stakes ramifications: its final resolution will affect vital interests and, if the determination is wrong, these interests may be disrupted and injured. Sometimes certain issues by their nature are best served by courts seeing case after case before the doctrine is definitively settled; as both Justices Oliver Wendell Holmes and Benjamin Cardozo both recognized, the common law works inductively, with general rules best developed from particular cases: Frederic R. Kellogg, “Law, Morals, and Justice Holmes” (1986), 69 Judicature 214; Benjamin N.

Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), at pages 22 and 23. Finally, it is true that the high-stakes implications and the uncertainty surrounding a jurisprudential issue can be dispelled by the thoughtful writings of the legal academy; but until there are some, the high-stakes ramifications and uncertainty reign. [ 42 ] Weighing these considerations, I consider it unwise for us at this stage in the development of this jurisprudence to express a definitive, binding-for-all-time view on the jurisprudential issue in this case.

Nor would it be wise, without working out the principles fully, simply to adopt the Federal Court’s brief and rather automatic adoption in this case of earlier Federal Court cases—none of which have comprehensively examined the jurisprudential issue. [ 43 ] The jurisprudential issue before us is a high-stakes one, fraught with ramifications of a far-reaching and hazardous kind. Mandatory exemptions come in all different shapes and sizes under different statutes with different purposes with different statutory wording. Crafting a legal test that works is a tricky thing.

If we get it wrong, we might allow the disclosure of sensitive and harmful material that should be kept confidential in the public interest, thereby damaging the proper conduct of government. Or we might keep secret important material that the public should see, thereby inhibiting the sort of public comment that lies at the core of the guarantee of freedom of expression in paragraph 2(

b) of the Canadian Charter of Rights and Freedoms and paragraph 1(

d) of the Canadian Bill of Rights . [ 44 ] As I shall explain below, there are certain questions associated with the Information Commissioner’s test that require further study, full submissions and the benefit of Federal Court rulings. Sometime in the future, armed with those submissions, we may be able to resolve this jurisprudential issue once and for all. [ 45 ] In Rubin and Davidson , above, this Court did not need to settle definitively the jurisprudential issue and so it did not do so. In the years since these cases have been decided, nothing has changed jurisprudentially or otherwise to give us the certainty or confidence

needed to decide the jurisprudential issue. To decide it now would be a step too far. [46] I know that some, for the best of motives, might be tempted to nibble a bit at the jurisprudential issue by making a one-off rulingthat avoids a discussion of legal principle. For example, some might rule that “on the facts” or “in these circumstances”—withoutdefining the facts or the circumstances—it was too late for the mandatory exemption to be asserted. Or they might rule that the lateassertion of the mandatory exemption is “unfair.” Or they might just announce a ruling with no supporting analysis.

These approachesare troubling. [47] First, courts are supposed to reach decisions based on legal principle and doctrine. If legal principle and doctrine are not offeredin support of a decision, there probably isn’t any. [48] Related to this is the deciding of matters merely “on the basis of all the facts” or “fairness”. This is to rely on concepts that are“empty vessel[s] to be filled with whatever meaning we might wish from time to time”: Reference Re Public Service Employee RelationsAct (Alta.), (SCC), [1987] 1 S.C.R. 313 [at page 394], 38 D.L.R. (4th) 161, per McIntyre J.

Such decisions, emanatingfrom personal preferences rather than legal principle and doctrine, are legitimately open to attack based on the constitutional principle ofthe rule of law. [49] Finally and more practically, such a decision would be a precedent binding future panels of this Court. The precedent might be nomore than “sometimes it will be too late to assert mandatory exemptions”. But that may be misleading and may wrongly influence latercases. Mandatory exemptions come in all different shapes and sizes under different statutes with different purposes with differentstatutory wording.

After the jurisprudential issue is comprehensively settled, it may turn out that under all statutory regimes mandatoryexemptions can be asserted at a late stage. Or perhaps mandatory exemptions can never be asserted at a late stage. Or perhaps only some,but only in certain defined circumstances. Until the jurisprudential issue is comprehensively settled, it is folly to nibble at it through one-off rulings. [50] In this case, we do not know what the appellant’s interest in confidentiality is because the appellant was not permitted to adduceevidence in support of the mandatory exemption.

If the evidence showed that the interest in confidentiality in this case is massive andthat disclosure would harm Canada, would we still say that it is too late for the mandatory exemption to be asserted? To find “on thefacts” or because of “fairness” that the mandatory exemption was asserted too late in this case is to take a blind stab in the dark in a high-stakes, uncertain area of law. [51] Lastly, the list of government departments and institutions in

Schedule II to the Act is long and the range of confidentialityinterests recognized by Parliament is wide. The jurisprudential issue affects those interests and institutions and perhaps many othergovernment institutions as well. To resolve the jurisprudential issue, the Court will need to be acquainted with all of those interests andinstitutions. As well, if it happens in a future case that the Attorney General is not present but should be, the Court may give theAttorney General notice of the case and invite her to appear: see paragraph 110(

b) of the Federal Courts Rules, SOR/98-106. [52] For all these reasons, I refrain from determining the jurisprudential issue in this case.

I do not comment on the Federal Court’sreasoning and conclusions on it. [53] Nor do I comment on the Information Commissioner’s proposed analytical framework (at paragraph 29, above) except to offer afew words by way of assistance for future cases both in the Federal Court and in this Court. [54] It seems that unless mandatory exemptions can always be asserted at a late stage, the sort of multi-factor approach that theInformation Commissioner has proposed is methodologically sound: the various considerations, complex and conflicting, can only becaptured by such an approach.

The controversy—on which I shall refrain from commenting—comes in the content of the factors. Are thefactors sufficiently grounded in the text, context and purpose of the Access to Information Act? Do the factors sufficiently take intoaccount the text, context and purpose of the legislation under which the mandatory exemption arises? What if there is a conflict betweenthe two? Are there any factors beyond those that the Information Commissioner has identified in this case? How should the Court goabout weighing and balancing the factors? [55] Other related questions may arise.

Is there a distinction to be made between the listed exemptions under the Act (somediscretionary, some mandatory) and the statutory prohibitions in

section 24 listed in

Schedule II of the Act? To what extent does thepurpose set out in subsection 2(1) apply in cases where the statutory prohibitions in

section 24 listed in

Schedule II of the Act apply? If itdoes apply, how should it apply? If a party is not entitled to access Defence Production Act documents that are covered by

section 30 ofthat Act, can a substantive right to access those documents be created by a procedural defect such as delay? [56] Another question is whether a court, confronted with a mandatory exemption asserted late should adjourn and remit the matter tothe Information Commissioner for investigation. [57] With more guidance on this—perhaps from the Federal Court’s redetermination of this matter, other Federal Court decisions,considered academic commentaries and the submissions of counsel including the Attorney General—this Court may consider itself oneday to be empowered to settle the jurisprudential issue.

But that day is not today. D. Proposed disposition [58] Therefore, for the foregoing reasons, I would allow the appeal and set aside the judgment of the Federal Court. I would remit thematter to the Federal Court to receive evidence from the parties concerning the exemption under

section 30 of the Defence ProductionAct, including why it was asserted late, and to redetermine the matter. [59] The appellants are successful in this appeal. Normally costs, here and below, would follow the event. However, the only issue onappeal concerns the appellants’ late assertion of the mandatory exemption under the Defence Production Act. Had they asserted themandatory exemption in a timely way, this appeal might never have been necessary. Accordingly, I would not make any order as to thecosts on appeal. In its redetermination, the Federal Court may consider the issue of costs for the original hearing before it and in the

redetermination. [60] The Court wishes to thank counsel for their excellent submissions. Rennie J.A.: I agree. âââ The following are the reasons for judgment rendered in English by [61] Boivin J.A. (dissenting): I have had the benefit of reading the reasons drafted by my colleague Stratas J.A. With respect, I amunable to agree with him that the appeal should be allowed. [62] From the outset, I consider it fundamental to recall the manner in which the case proceeded before the Federal Court.

As part ofthe proceedings leading to the judicial review hearing, the Federal Court refused to grant Defence Construction Canada’s request for anadjournment five days prior to the commencement of the hearing (the O).

My colleague concludes [paragraph 23, above] that “the latenature of the assertion of the exemption and the need to file evidence in support of it could not be, by itself, a sufficient ground to refusethe adjournment so that the issue of lateness could be considered.” I disagree. [63] The order denying the adjournment was issued as a separate decision prior to the decision under appeal: the Federal Courtreleased the order on July 9, 2015 and the decision under appeal was rendered approximately six weeks later on August 24, 2015.

Yet,the order was not appealed by Defence Construction Canada as it could have pursuant to paragraph 27(1)(

c) of the Federal Courts Act,R.S.C., 1985, c. F-7. Nor did Defence Construction Canada make a motion before this Court requesting a retroactive extension of time toappeal the order and have the matter consolidated or heard together with the appeal on the merits of the judicial review application.Moreover, nowhere in the notice of appeal, in the memoranda of fact and law or, in oral argument before our Court was the orderchallenged.

On this basis alone, I cannot agree that our Court ought to intervene and in effect overrule the order. [64] Even assuming that it was open to our Court to decide this appeal for purposes of overturning the order, I am unable to find areviewable factual or legal error. It is not open to an appellate court to intervene in a judge’s discretionary decision unless it identifies anerror of law, a palpable and overriding error of fact (see e.g. Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology,2016 FCA 215, [2017] 1 F.C.R. 331, at paragraphs 68 and 69).

Therefore even if the order were in play, I see no basis to disturb theFederal Court’s discretionary decision to deny Defence Construction Canada’s request for an adjournment. [65] Just as significant, in my view, is that to overturn the order in the present case overlooks the circumstances in which it was made.My colleague construes the order as saying that “Defence Construction Canada could not file evidence to support the mandatoryexemption and to justify its late assertion because the request to do so was too late.” Respectfully, this does not give sufficientconsideration to the fact that, as part of the order, the Federal Court expressly ordered that it would hear counsel on the issue of the late-claimed exemption, including the possibility of filing supplementary written submissions in this regard following the hearing. [66] Indeed, the parties did argue the issue at the hearing before the Federal Court and in fact confirmed at that hearing that the issue“had been sufficiently canvassed, such that no further written submissions were necessary” (Federal Court’s decision, at paragraph 17). [67] Thus, all were in agreement that the Federal Court was provided with what it needed for purposes to adjudicate upon the issue ofthe late-claimed exemption.

In the circumstances, I cannot agree that it would be appropriate to, in effect, overrule the order byremanding the matter to the Federal Court for redetermination.

In my respectful view, it was open to the Federal Court, and indeedappropriate in the circumstances given the parties’ agreement in that regard, to rule upon the jurisprudential issue in the way it did basedon the record before it. [68] Our Court is now seized of an appeal of the Federal Court’s decision and it is accordingly our duty to address it. [69] The narrow question that was squarely put before our Court by Defence Construction Canada and the Information Commissioner,the intervener, is the following: did the Federal Court commit a legal error in holding that the Defence Construction Canada could notlate-claim a mandatory exemption under subsection 24(1) of the Access to Information Act, R.S.C., 1985, c.

A-1? [70] In this appeal, the standard of review is correctness given that the issue, by definition, never arose before the administrativedecision maker (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Office of the Information Commissioner) v. Canada(National Defence), 2015 FCA 56, [2016] 1 F.C.R. 213; Blank v.

Canada (Justice), 2016 FCA 189, 7 Admin L.R. (6th) 30). [71] As part of its decision on the judicial review application, the Federal Court correctly rejected the contention that a governmentinstitution such as Defence Construction Canada may late-claim a mandatory exemption under subsection 24(1) of the Access toInformation Act. In dealing with the issue and reaching this conclusion (paragraphs 77 and 88), the Federal Court thoroughly consideredthe jurisprudence regarding exemptions. It did so first by pointing to this Court’s decision in Davidson v.

Canada (Solicitor General), (FCA), [1989] 2 F.C. 341, (1989), 36 Admin. L.R. 251 (C.A.) (Davidson FCA). In Davidson FCA, this Court held, inthe context of the Privacy Act, R.S.C., 1985, c. P-21, that discretionary exemptions cannot be late-claimed. The Federal Court noted atparagraph 82 of its decision that the reasoning in Davidson FCA has since been applied to mandatory exemptions under the Access toInformation Act (Rubin v. Canada (Minister of Health), 2001 FCT 929, 210 F.T.R. 84, at paragraphs 55–60 (affd 2003 FCA 37, 23C.P.R. (4th) 312; Geophysical Service Inc. v.

Canada-Newfoundland Offshore Petroleum Board, 2003 FCT 507, 26 C.P.R. (4th) 190, atparagraphs 40 and 41). [72] The Federal Court also disagreed with Defence Construction Canada’s reliance upon Canada (Information Commissioner) v.Canada (Minister of National Defence) (1999), 240 N.R. 244 (FCA), a case dealing with discretionary exemptions in which this Courtreferred to in Davidson FCA Defence Construction Canada attempted to draw an inference from the Information Commissioner’s choicein that case to abstain from taking a position on whether mandatory exemptions may be late-claimed, which the Federal Court rejected.Finally, the Federal Court addressed this Court’s decision in Canada (Information Commissioner) v.

Canada (Minister of the

Environment), 2003 FCA 68, 224 D.L.R. (4th) 498 (Canada Environment). In that case, our Court allowed a government institution toraise exemptions after the Information Commissioner’s investigation concluded. The Federal Court distinguished Canada Environmenton the basis that the government institution at issue in that case had taken the initial position that the requested documents were whollyoutside the Access to Information Act’s scope, making it unnecessary to claim specific exemptions. Our Court observed that thecircumstances in Canada Environment were exceptional.

The Federal Court in the present case further observed that the reasons inCanada Environment are limited to that specific case. [73] Hence, the consensus that emerges from the jurisprudence is that a government institution cannot late-claim an exemption,including a mandatory one, if that exemption was not put before the Information Commissioner during the investigation. That is so inorder to safeguard the requester’s quasi-constitutional right of access and the first level of independent review of the InformationCommissioner (Canadian Broadcasting Corporation v.

Canada (Information Commissioner), 2010 FC 954, 377 F.T.R. 100 (CanadianBroadcasting), at paragraph 33 (affd 2011 FCA 326, 344 D.L.R. (4th) 341)). In my view, the Federal Court properly highlighted theconcern that permitting a government institution to late-claim exemptions would deny requestors the benefit of the mechanism vested inthe Information Commissioner’s mandate (Federal Court’s decision, at paragraph 80).

That concern was specifically expressed by ourCourt in Davidson FCA, at paragraph 14 [page 348]: It is no doubt true, as the appellant argued, that a Federal Court trial judge, on a review of a refusal of access by an institution headwhich, as here, is upheld by the Commissioner, has adequate powers of review over the decision of the institution head, though it mustbe said that a judge sitting in Court lacks the investigative staff and flexibility of the Commissioner.

More important, if new grounds ofexemption were allowed to be introduced before the judge after the completion of the Commissioner’s investigation into wholly othergrounds, as is the issue in the case at bar, the complainant would be denied entirely the benefit of the Commissioner’s procedures.

Hewould thus be cut down from two levels of protection to one. [Emphasis added.] [74] I further observe that when one considers the Access to Information Act’s objective and the overall scheme, and giving effect tothe Information Commissioner’s role and mandate confirmed by Parliament, the general principle that mandatory exemptions cannot belate-claimed is sound (Canadian Broadcasting). [75] It is true that the general principle whereby exemptions under the Access to Information Act cannot be late-claimed could admitexceptions in certain limited circumstances such as those raised in Canada Environment or, in obiter, in Davidson v.

Canada (SolicitorGeneral), (FC), [1987] 3 F.C. 15, (1987), 41 D.L.R. (4th) 533 (T.D.), at paragraph 7 [page 22]; Davidson FCA, atparagraph 11 [page 347]. For instance, national security concerns may very well be an interest that could fall within an exception.However, if a party was of the view that an exception was warranted, the burden to justify reliance on an exemption provision for thefirst time before the Federal Court — i.e. post-investigation by the Information Commissioner would be on the party claiming theexception to the general principle. In the present case, such circumstances are non-existent.

Defence Construction Canada has notpointed to an interest it sought to protect before the Federal Court or before our Court. [76] Given my conclusion with respect to

section 24 of the Access to Information Act, it is unnecessary to address the subsidiary issueof whether

section 30 of the Defence Production Act, R.S.C., 1985, c. D-1 applies to the facts of this case. [77] For these reasons, I would dismiss the appeal, without costs as none were requested.