PATRICK WHITTY Applicant v. THE ATTORNEY, 2013 FC 595

Date: 20130604 Docket: T-1423-12 Citation: 2013 FC 595 Ottawa , Ontario , June 4, 2013 PRESENT: The Honourable Madam Justice Snider BETWEEN: PATRICK WHITTY Applicant and THE ATTORNEY GENERAL OF CANADA AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Mr. Patrick Whitty, the Applicant, requested information from Environment Canada (EC) regarding himself and his three companies: RPR Environmental Inc.; 1049585 Ontario Inc., o/a RPR Environmental Services; and 876947 Ontario Ltd., o/a RPR Environmental. In this application for judicial review, Mr.

Whitty states that he is seeking: 1. An order for EC to comply with its obligations under the Access to Information Act , RSC 1985, c A-1 [ ATIA or the Act]; and 2. A writ of mandamus requiring EC to send the Applicant a complete copy of his personal information recorded on the National Enforcement Management Information System (NEMISIS) and a complete copy of a specific document the Applicant initially requested. [ 2 ] The problem with this application is that Mr. Whitty has not met the statutory pre-conditions for bringing an application to this Court.

Therefore, the judicial review must be dismissed. [ 3 ] The history of Mr. Whitty’s requests to EC for information and his complaints to the Office of the Information Commissioner (OIC) is lengthy. The more important steps in the process are described below. The 2009 Request

[ 4 ] Sometime prior to November 2009, Mr. Whitty submitted his first request under the ATIA . He asked for documents relating to “alleged breaches of any applicable law” by himself and his companies in the possession or control of the Public Prosecution Service of Canada or EC. [ 5 ] EC answered this request in November 2009. Some information was withheld by EC in accordance with certain enumerated sections of the ATIA . Of particular concern to Mr. Whitty, EC redacted the name of an individual referenced in an e-mail dated February 5, 2009 (the Specific Document).

The Specific Document related to a personal profile in NEMISIS to which an investigator wished to add information. The 2011 Request [ 6 ] In a second request to EC (the 2011 Request), Mr. Whitty asked for an extensive list of material, including, but not limited to, an un-redacted copy of the Specific Document: This request is for documents of any kind relating or referring to myself . . . and my companies . . . that is contained in Environment Canada’s National Enforcement Management Information System, also known as NEMISIS.

Without limiting the generality of the word “documents”, my request is intended to include all drafts and final copies of: records, letters, notes, investigator’s notebooks, affidavits, briefs, complaints, reports, information used to obtain search warrants, e-mails (including deleted e-mails), faxes, directives and memoranda, and communications with legal counsel, whether in printed or computer-stored form, as well as audio and videotapes and photographs. I also request access to a specific document that was previously released to me as per your enclosed letter of November 20, 2009.

This specific document . . . has an individual’s name redacted. I have reason to believe that I am the individual that was named in this e-mail. If so, I request immediate release of this specific document to me, without redaction and without waiting for any other information to be compiled. First Complaint to the OIC [ 7 ] The statutory due date for EC’s response to the 2011 Request was July 2, 2011. On June 30, 2011, EC issued a “notice of extension” advising that the department would require a 200-day extension (to January 18, 2012) to complete the request. On August 4, 2011, Mr.

Whitty complained to the OIC about the time extension. This complaint was assigned File No. 3211-00503. In a response dated October 27, 2011 (the Extension Report), the OIC advised Mr. Whitty that the extension was “valid” and “reasonable”. Second Complaint to the OIC [ 8 ] On March 20, 2012, Mr. Whitty complained to the OIC about the delay which had now extended well beyond the 200-day extension. The OIC assigned file number 3212-00017 to this complaint. [ 9 ] On March 30, 2012, EC responded to Mr. Whitty’s 2011 ATIA Request (the March 30 Response). Of particular concern to Mr.

Whitty is the redaction in the Specific Document; EC had not, as requested by Mr. Whitty, removed the redaction of a name from this document. [ 10 ] In a letter dated June 14, 2012 (the Delay Report), the OIC responded to the March 20, 2012 complaint. The OIC acknowledged that the late response had placed EC “in a state of deemed refusal pursuant to subsection 10(3) of the Act ”. However since EC responded on March 30, 2012, the OIC simply recorded the complaint “as well founded, resolved without having made recommendations to the head of the institution”. [ 11 ] On July 23, 2012, Mr.

Whitty commenced this application for judicial review.

Third Complaint to the OIC [12] Although the record is somewhat muddy, I accept that Mr. Whitty made a further complaint to the OIC in or around June2012 (the Third Complaint). In this complaint Mr. Whitty apparently alleged that: Environment Canada has improperly applied exemptions, so as to unjustifiably deny access to records, or portions thereof, requestedunder the Access to Information Act. [13] Of note, the Third Complaint marks the first instance when Mr. Whitty complained to the OIC regarding improper redactionsby EC in its March 30 Response. The earlier complaints only addressed the issue of EC’s delay.

Further, it is also an important fact thatMr. Whitty’s Third Complaint was not limited to the redactions in the Specific Document. In other words, Mr. Whitty’s complaintextends to all 8000 pages of documents provided by the EC to him. Accordingly, to adequately respond to the complaint, the OIC mustreview each and every one of those 8000 pages. [14] The OIC has begun – but not completed – an investigation of the Third Complaint. On June 20, 2012, the OIC sent adocument to EC titled “Notice of Intention to Investigate and

Summary of Complaint”, pursuant to s. 32 of the ATIA. On June 21, 2012,EC forwarded in excess of 8,000 pages, including a working copy of the records gathered by EC in response to Mr. Whitty’s request,outlining the particular exemptions claimed by EC. On July 26, 2012, EC was advised that the complaint had not yet been assigned to aninvestigator. A further update was requested by EC on November 21, 2012, but no response was received by the time the affidavit in theRespondent Record was sworn. Analysis [15] I believe that Mr. Whitty is somewhat confused as to what decision is reviewable before this Court.

In fact, Mr. Whitty cannotseek review of any alleged “decision” by the OIC; the OIC can only provide non-binding recommendations (Canadian Council ofChristian Charities v Canada (Minister of Finance), (FC), [1999] 4 FC 245 at para 12, 168 FTR 49). WhatMr. Whitty is really asking for is a decision of this Court to force the EC to disclose information to which he was entitled under theATIA. On this basis, the relevant decision is the March 30 Response by EC. [16] The problem for Mr.

Whitty is that investigation by the OIC is necessary prior to the commencement of a judicial reviewapplication (Statham v Canadian Broadcasting Corp, 2009 FC 1028 at para 18, [2010] 4 FCR 216, aff’d 2010 FCA 315, [2012] 2 FCR421).

Section 41 of the ATIA sets out the conditions precedent for judicial review under the ATIA: 41. Any person who has beenrefused access to a recordrequested under this Act or a partthereof may, if a complaint hasbeen made to the InformationCommissioner in respect of therefusal, apply to the Court for areview of the matter withinforty-five days after the time theresults of an investigation of thecomplaint by the InformationCommissioner are reported to thecomplainant under subsection37(2) or within such further timeas the Court may, either beforeor after the expiration of thoseforty-five days, fix or allow. 41.

La personne qui s’est vurefuser communication totale oupartielle d’un document demandéen vertu de la présente loi et qui adéposé ou fait déposer une plainteà ce sujet devant le Commissaireà l’information peut, dans undélai de quarante-cinq jourssuivant le compte rendu duCommissaire prévu au paragraphe37(2), exercer un recours enrévision de la décision de refusdevant la Cour.

La Cour peut,avant ou après l’expiration dudélai, le proroger ou en autoriserla prorogation [17] The requirement for a complaint to the OIC is clearly stated in Canada (Information Commissioner of Canada) v Canada(Minister of National Defence) (1999), 240 NR 244 at para 27, [1999] FCJ No 522 (CA): The investigation the Commissioner must conduct is the cornerstone of the access to information system. It represents an informalmethod of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power tomake recommendations to the institution involved.

The importance of this investigation is reinforced by the fact that it constitutes acondition precedent to the exercise of the power of review, as provided in ss. 41 and 42 of the Act. [Emphasis added.]

[ 18 ] Therefore, in this case, judicial review cannot be sought without a report outlining the investigation of OIC of the relevant subject matter. [ 19 ] Obviously, Mr. Whitty cannot seek judicial review on the basis of the Extension Report since he is out of time. [ 20 ] In his oral submissions, Mr. Whitty identified the June 14, 2012 report regarding the Delay Complaint as the basis for his judicial review application. However, the OIC’s investigation of this complaint cannot satisfy the requirements for judicial review since it dealt with delay and not the redactions. The complaint made by Mr.

Whitty was only that EC had breached the provisions of the ATIA by failing to respond to his request by the extended deadline. The OIC properly answered Mr. Whitty’s complaint of delay. The OIC concluded that, because EC had responded to the request on March 30, 2012, nothing beyond an acknowledgment of the lengthy delay was required. The fact that Mr. Whitty did not receive the documents that he wanted was not an issue raised with the OIC at this time. Mr. Whitty had only complained to the OIC about the delay and not about the redactions.

In my view, the OIC addressed the issue before it in a complete and reasonable manner; however, this investigation cannot satisfy the conditions precedent to commence this application for judicial review. [ 21 ] In sum, the only possible reviewable decision is the March 30 Response of EC. However, the problem for Mr.

Whitty is that, in the absence of a report from the OIC detailing its investigation of the Third Complaint, the court is precluded from granting – or even considering – this application for judicial review. [ 22 ] In the circumstances, the prerequisites for an application for judicial review have not been met and the application will be dismissed, with costs to the Respondent. JUDGMENT THIS COURT ORDERS AND ADJUDGES that: 1. the application for judicial review is dismissed; and 2. costs fixed in the amount of $500, inclusive of disbursements, are payable by the Applicant to the Respondent. “Judith A.

Snider” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1423-12

STYLE OF CAUSE: PATRICK WHITTY v THE ATTORNEY GENERAL OF CANADA AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MAY 28, 2013 REASONS FOR JUDGMENT AND JUDGMENT: SNIDER J. DATED: JUNE 4, 2013 APPEARANCES : Patrick Whitty FOR THE APPLICANT (ON HIS OWN BEHALF) Jacqueline Dais-Visca FOR THE RESPONDENT SOLICITORS OF RECORD : Patrick Whitty St. Catherines , Ontario FOR THE APPLICANT (ON HIS OWN BEHALF) William F. Pentney Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT