Canadian Commissioner Loses Case Over Long Delay

17 March 2014

A Canadian judge has decided the law does not permit her to sanction a government agency for a three-year delay in responding to a request.

The Canadian Information Commissioner Suzanne Legault took the National Defence ministry to court for delays in handling a Dec. 9, 2010, request for documents about a contract and communications related to the sale of military equipment to Uruguay.

National Defence told the requester that responding would take 1,110 days. It provided the material last September, so the agency argued that the matter was moot, but the judge said she had discretion to review the continue case because otherwise “the issues raised are evasive of review.”

The Commissioner investigated a complaint by the requester and then recommended that the ministery make a commitment to respond to the request by Feb. 28, 2013, at the latest. When the ministry said this was not possible, the commissioner filed an application for judicial review under section 42 of the Act over whether the delay was unreasonable and constituted a “deemed refusal.”

Judge Catherine Kane, in a March 3 decision, dismissed the application. She ruled that Parliament’s “clear intention” was that “requesters may complain about claimed extensions and the Information Commissioner may investigate the complaint, but that is the extent of the recourse.”

Previous court decisions state that the courts “should not second guess whether an extension is reasonable,” she ruled.

Kane wrote that “the applicant has effectively highlighted that the remedies for non-compliance with the Act are limited and that legislative change would be the only way to provide more options and remedies.”

The office of the information commissioner is analyzing the decision and considering our options, according to a spokesperson. “We have until April 2, 2014, to decide whether to file an appeal or not.”

Ottawa lawyer Michel Drapeau, who has co-authored a textbook on the Access to Information Act, called the Federal Court ruling “extraordinarily bad news” in an article by Dean Beeby in the Edmonton Journal.

He was quoted as saying further, “A lot of champagne will be uncorked in many institutions … because they are going to say, listen, why did we only ask for 1,000 days (of extension)? Next time we’ll ask for 10,000.”

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