Ipsofactoj.com: International Cases [2003] Part 9 Case 3 [SCC]


SUPREME COURT OF CANADA

Coram

Macdonell

- vs -

Quebec

McLACHLIN CJ

ARBOUR J

BASTARACHE J

BINNIE J

GONTHIER J

IACOBUCCI J

L'HEUREUX-DUBÉ J

LEBEL J

MAJOR J

1 NOVEMBER 2002


Judgment

Gonthier J

(delivering the majority judgment of the court)

IINTRODUCTION

  1. The main issue in this case is the privilege granted to Members of the National Assembly not to disclose certain documents under the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1 ("Access Act"). More precisely, we must determine whether the Commissioner's decision that the documents showing the expenses of a Member of the National Assembly are documents produced for a Member within the meaning of s. 34 of the Access Act is reasonable. As well, the Court must decide whether the Commissioner's decision that the information in the documents requested includes nominative information that is exempt from disclosure is reasonable.

  2. I would refer to the description given by my colleagues of the facts in this appeal and of the decisions below, except the attribution to the Commissioner, Paul-André Comeau, of the statement that all that needs to be found in order for the s. 34 exemption to apply is that the information in the document requested relates specifically to the Member. The Commissioner actually asked whether the document was produced for the Member.

    IIANALYSIS

    1. Applicable Standard of Review

  3. I agree with the approach taken by Bastarache and LeBel JJ. in applying the standard of the "reasonable decision" to the decision of the Commissioner concerning s. 34 and s. 57 of the Access Act. However, they do not provide a definitive answer to the question of the standard applicable to the decision under s. 57. While implying that it is the "correct decision" standard that applies, they consider that the Commissioner's decision was unreasonable and find it unnecessary to pursue the matter. I do not believe it is necessary to reiterate my colleagues' analysis in its entirety. I simply add a few observations relevant to determining what standard of review applies to a decision made under s. 57 and a few comments on some of their analysis. I shall briefly examine some of the elements in the pragmatic and functional approach -- the nature of the decision involved, the presence of a privative clause, and the expertise of the tribunal -- that make it possible to determine the intention of the legislature (U.E.S., Local 298 v Bibeault, [1988] 2 S.C.R. 1048).

  4. I believe that my colleagues minimize the impact of the privative clause in the Access Act. They are of the view that it is a partial private clause since it provides for an appeal on any question of law or jurisdiction. In my view, this is a special privative clause specific to the Commission d'accès à l'information and drafted so as to limit the scope of the superior courts' intervention:

    114.

    No extraordinary recourse provided for in articles 834 to 850 of the Code of Civil Procedure (chapter C-25) may be exercised nor any injunction granted against the Commission or any of its members acting in their official capacity.

    Two judges of the Court of Appeal may, on a motion, summarily annul any writ, order or injunction issued or granted contrary to this Act in relation to a document.

    122.

    The object of the Commission is to hear, to the exclusion of every other court, the requests for review made under this Act.

    The Commission shall also exercise the functions conferred on it under the Act respecting the protection of personal information in the private sector (chapter P-39.1).

    146.

    Every decision of the Commission on a question of fact within its competence is final.

    147.

    A person directly interested may bring an appeal from a decision of the Commission before a judge of the Court of Québec on any question of law or jurisdiction.

    In no case may an appeal be brought except with leave of a judge of the Court of Québec. The judge shall grant leave if in his opinion the question ought to be examined in appeal.

    154.

    The decision of the judge of the Court of Québec is final.

    [Emphasis added]

    The legislature has provided for the possibility of an appeal to the Court of Québec on a question of law and jurisdiction, and that possibility suggests that this is a partial privative clause that necessitates less deference, as this Court stated in Pasiechnyk v Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, at para. 17:

    A "full" or "true" privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. See United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 332, and Pezim v British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 590.

    [Emphasis mine]

  5. However, the appeal provided for in the Access Act is limited to questions of law or jurisdiction, and leave for the appeal must be given by a judge of the Court of Québec. The right of appeal is therefore limited. The decision of the Court of Québec is the final step in the decision-making process, since no appeal lies from it. The legislature has created a closed circuit between the Commission and the Court of Québec. Section 114 of the Access Act precludes any opportunity to rely on arts. 834 to 850 of the Code of Civil Procedure, R.S.Q., c. C-25, which provide for extraordinary remedies. When the Act uses words that purport to limit review, it is up to the courts to determine whether the words used have full privative effect, or whether they create a lesser standard of deference (see Pasiechnyk v Saskatchewan (Workers' Compensation Board), supra, para. 17; Dayco (Canada) Ltd. v TCA-Canada, [1993] 2 S.C.R. 230, at p. 264). The privative clause must be analysed having regard to all the relevant provisions, and the true intention of the legislature is to be found in those provisions as a whole. There can be no doubt that the provisions in issue here, when taken as a whole, demonstrate the legislature's intention of limiting intervention by the superior courts. In my opinion, the presence of a clause of this nature calls for deference to the decisions of the Commission.

  6. Moreover, unlike my colleagues, I do not believe that the Commissioner's decision under s. 57 is a pure question of law. The question that must be answered under that section involves elements of fact and law. It requires that the specific facts of the case be analysed, and in that respect it is in the nature of a question of fact. In addition, the Commissioner must interpret the enactment, and specifically how it applies to Members and their staff. That aspect of the analysis involves a question of law. As Bastarache and LeBel JJ. observe, a question of mixed law and fact calls for a certain degree of deference.

  7. Finally, the Commission d'accès à l'information has relative expertise in respect of protecting privacy and promoting access to information held by a public body. That expertise is apparent from the powers conferred on the Commissioner to achieve the objectives of the Act, and from the Commission's exclusive power to hear requests for review made under the Access Act (s. 122). Sections 124 to 133 give the Commission broad powers to enable it to carry out its investigations. For example, the Commission has the power to prescribe conditions applicable to a personal information file (s. 124), to conduct investigations on its own initiative or when a complaint is filed (s. 127), to make appropriate recommendations, and to submit a special report to the National Assembly (s. 133). The Commission also takes part in policy making. In s. 123, para. 3, the legislature has provided that it is the Commission's function to give its opinion on the draft regulations submitted to it under the Act, on draft agreements on the transfer of information and on draft orders authorizing the establishment of confidential files. Plainly, the legislature treats the Commission as being expert in certain matters.

  8. Unlike the federal Access to Information Act, the Quebec legislature has provided for an exclusive review by the Quebec Commission d'accès à l'information, a separate body, as Evans J. of the Federal Court quite accurately observed in 3430901 Canada Inc. v Canada, [2002] 1 F.C. 421, 2002 FCA 254, at para. 30:

    Counsel argued that the Judge had erred by relying for her conclusion almost exclusively on Canadian Council of Christian Charities v Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D). I had held in that case (at paragraphs 12-13) that correctness was the applicable standard of review because, unlike the situation under many provincial access to information statutes, the administrative action typically reviewed in the federal scheme is the refusal of a head of a government institution to disclose a document, not of the Information Commissioner, an officer of Parliament who is independent of the Executive. Heads of government institutions are not disinterested in the interpretation and application of the Access to Information Act and are likely to have an institutional predisposition towards restricting the public right of access and construing the exemptions broadly.

    [Emphasis added]

    The Quebec Commission d'accès à l'information has no special interest in the decision it must make, and so it is able to play its role independently. By virtue of the fact that it is always interpreting the same Act, and that it does so on a regular basis, the Quebec Commissioner develops general expertise in the field of access to information. That general expertise on the part of the Commission invites this Court to demonstrate a degree of deference.

  9. In other words, having regard to the nature of the decision made under s. 57, the presence of the privative clause and the relative expertise of the Commission, I am of the opinion that the legislature intended to rely on the Commission to interpret s. 57 and to identify the documents that are covered by that section, subject only to a right of appeal, with leave, to the Court of Québec on a question of law and jurisdiction, to the exclusion of any other remedy. It would be unjustified to place the standard of judicial review at either end of the scale. Like the Court of Appeal, I am of the opinion that the standard that must be applied is the reasonableness standard.

    2.  Analysis of the Commissioner's Decision Under Section 34 of the Access Act

  10. The document requested was described by Gilles Dumont, a computer and administrative systems analyst in the National Assembly's financial resources management branch, as a document prepared for each Member describing the total payroll available to the Member, and the Member's expenses incurred in employing full-time or casual staff and for paying for professional services. Those moneys are provided under the rules set out in the Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels, National Assembly, Règles administratives du Bureau, Decision No. 092, May 16, 1984 (updated November 1, 1990). In other words, the document tells the Member what he or she has spent to date.

  11. The parties agree that the document entitled "Assemblée nationale, service de la programmation et contrôle budgétaire, état des dépenses engagées pour 1990 et 1991 pour chaque membre de l'Assemblée nationale" is not a "document from the office of a member of the National Assembly". The only question to be answered is whether the Commissioner's finding that the document requested by the appellant is a document produced for a Member by the services of the National Assembly is reasonable:

    34.

    No person may have access to a document from the office of a member of the National Assembly or a document produced for that member by the services of the Assembly, unless the member deems it expedient.

    The same applies to a document from the office of the President of the Assembly or of a member of the Assembly contemplated in the first paragraph of section 124.1 of the Act respecting the National Assembly (chapter A-23.1) or a minister contemplated in section 11.5 of the Executive Power Act (chapter E-18), and to a document from the office staff or office of a member of a municipal or school body.

    [Emphasis added]

  12. My colleagues say that Commissioner Comeau did not take the purpose of the Access Act into consideration in interpreting s. 34. They believe that the Commissioner committed an error that made his decision unreasonable by failing to consider the " fundamental principle that access may be had to government information" set out in s. 9. If he had taken that objective into consideration, he would have interpreted s. 34 narrowly, by limiting the scope of that section to documents that relate to Members' decision-making process. As my colleagues consider that he did not take the proper analytical approach, they find that the decision was unreasonable. With respect, I am not of that opinion.

  13. Access to information legislation usually has two major themes: the right to information and the right to privacy. The Quebec statute, unlike other provincial statutes and the federal statute, also makes Members of the legislature subject to access to information to a certain extent. Section 34 does this in respect of documents from the office of a Member of the National Assembly and documents produced for that Member by the services of the Assembly, provided that the Member consents. This is a separate set of rules, parallel to the general procedure for requesting access set out in s. 9. Before s. 34 came into force, Members were subject only to political oversight in this respect, and the public did not otherwise have access to these documents.

  14. The Access Act therefore applies to Members' documents within certain limits. The purpose of s. 34 is twofold: to provide access to certain documents of Members, and to limit that right.

  15. This limited right of access demonstrates the legislature's intention of protecting the free exercise of the parliamentary function from inappropriate and arbitrary pressure, by giving the Member responsibility for the decision not to disclose, in relation both to the National Assembly and to the public, and by defining a sphere of confidentiality in the Member's work. The legislature has made a choice, by distinguishing what is open to public access without restriction from what is subject to the consent of the Member. Section 43 of the Act respecting the National Assembly demonstrates the importance placed by the legislature on its Members' independence [emphasis added]:

    43.

    Every Member is vested with full independence for the carrying out of his duties.

    The Access Act protects and reconciles two fundamental principles of our democracy: access to information and the independence of Members. The legislature has done this by limiting the scope of each of those. The two rights must be considered together, without elevating one over the other, unless otherwise indicated in the Act, and the intention of the legislature in this regard must be respected.

  16. There is nothing unreasonable in the Commissioner's interpretation. The wording of s. 34 makes no distinction between documents that are purely administrative and documents that are associated with the decision-making process. That section requires that a person seeking access obtain the consent of the Member concerned for all of the documents covered by the section. It is written in precise terms: it is concerned only with whether the document is from the office of a Member of the National Assembly or was produced for that Member by the services of the National Assembly. The Access Act applies to those documents, but only on the conditions stated.

  17. My colleagues rely, inter alia, on the wording of the heading of Part 5 of the Access Act, "Information affecting administrative or political decisions", to distinguish between the functions of a Member that are, properly speaking, legislative or decision-making in nature, and the other secondary activities that a Member may perform. In my opinion, it is reasonable to place more weight on the words of the provision than on the heading of that Part. As Forget J.A. of the Quebec Court of Appeal said (at para. 46), before interpreting a statute and looking to secondary sources, we must first examine the text of the statute [TRANSLATION]:

    [B]efore looking for the intention of the legislature having regard solely to the principles underlying the Act, we must consider the text, since it is through the text that the legislature has spoken.

  18. It is true that exceptions to disclosure have generally been narrowly construed (see Y. Duplessis and J. Hétu, L'accès à l'information et la protection des renseignements personnels (loose-leaf ed.), vol. 2, c. II, at p. 45 001; Lavigne v Canada (Commissioner of Official Languages), 2002 SCC 53) and I did say in Québec (Communauté urbaine) v Corp. Notre-Dame de Bon Secours, [1994] 3 S.C.R. 3, at p. 18, that "when the legislature makes a general rule and lists certain exceptions, the latter must be regarded as exhaustive and so strictly construed". However, that rule of interpretation applies only where the Act needs to be construed. As McDonald J.A. of the Federal Court said in applying the Access to Information Act, R.S.C. 1985, c. A-1, the Act must not be interpreted where no purpose is served by doing so (Rubin v Canada (Minister of Transport), [1998] 2 F.C. 430 (C.A.), at para. 24):

    It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it.

    [Emphasis added]

  19. It was reasonable for the Commissioner not to limit the exception in s. 34 to functions associated with Members' legislative activities, having regard to, inter alia, the clear wording of the provision, the need to reconcile the two fundamental rights provided in the Access Act and the different treatment that the legislature provided for Members' documents. The only question that the Commissioner had to ask was whether the document "Assemblée nationale, service de la programmation et contrôle budgétaire, état des dépenses engagées pour 1990 et 1991 pour chaque membre de l'Assemblée nationale" had been produced for a Member. What we must now do is analyse the application of that section to the specific case.

  20. Before hiring staff, a Member must first fill out the appropriate form for financial control by the National Assembly's accounting department. The employee assigned to that task must ensure that the total payroll available to the Member of the National Assembly has not been exhausted. The document is prepared using the information provided by the Member, and each month it is sent to the Member. It is treated as confidential by the National Assembly's accounting department and only a few people have access to it. A document is prepared for each Member, and each Member receives the document that relates to him or her personally. Members therefore do not receive all of the documents; they receive only the document that relates to their own expenses. The document that the appellant is trying to obtain is the document that is a compilation of the documents given to the Members individually.

  21. The document enables the Member to ensure that the Member does not exceed his or her budget in hiring staff. The Member has complete discretion to choose his or her employees, as s. 43 of the Act respecting the National Assembly, and an analysis of the relevant sections of the Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels, suggest [TRANSLATION]:

    2.

    The Member shall hire the necessary staff to assist the Member in the performance of the Member's functions, and shall appoint the staff and determine their status.

    3.

    A Member's staff is composed of advisers, political attachés or support employees. The Member shall determine their duties and responsibilities.

    An adviser or political attaché shall perform the professional duties assigned to him or her, which include the functions of press officer, researcher, liaison officer or constituency secretary.

    A support employee is responsible for performing administrative support duties.

    4.

    A member of a Member's staff shall be appointed in writing. The appointment document shall state the staff member's home base: one of the buildings occupied by the National Assembly or the Member's constituency office.

    7.

    In addition to a Member's full-time staff, the Member may hire other persons on a contractual basis.

    The remuneration and conditions of employment of such persons shall be as provided in their contract of employment. However, their remuneration must be consistent with the provisions for the remuneration of full-time employees.

    61.

    A Member who retains the professional services of a corporation or partnership to handle a specific matter shall be entitled to payment of the fees incurred by the Member.

    The Member may also provide for reimbursement of travel expenses at the rates specified in the contract, which may not exceed the rate provided for by Conseil du trésor directive 7-74.

    62.

    Payment shall be made to the corporation or partnership upon presentation by the Member of the contract and vouchers.

    63.

    The expenses shall be paid out of the payroll and the additional payroll, if any.

    [Emphasis added]

  22. On October 1, 1992, a Member's total payroll for staff remuneration was $101,200 per year (s. 12 of the Regulation). Although a Member has full discretion in hiring staff, he or she must still comply with certain rules with respect to the maximum salary that may be paid to the persons hired by the Member (ss. 16 to 20 of the Regulation). The document in issue is essential for Members in that it enables them not to exceed the total amount allocated and to make an informed choice when selecting candidates. A Member must be familiar with the figures for his or her expenses in order to be able to adjust the decision as to what candidates are sought to the financial constraints to which he or she is subject. The staff that are hired may be a determining factor in a Member's success, and the hiring process is part of the important duties of a Member.

  23. In my opinion, even though the National Assembly's financial resources management branch also verifies, using the documents that are the subject of this case, that the Member's total payroll has not been exceeded, it was reasonable for the Commissioner to believe that [TRANSLATION] 

    [t]his does not in any way alter the fact that the documents are produced for the Member, that they are treated as confidential by the few members of the staff of the Assembly who have access to them in the course of their duties, and that the Member has complete discretion in choosing his staff and the contracts for professional services that he enters into.

    [[1995] C.A.I. 222, at p. 227]

    The document, which is provided directly to the Member, is produced for the Member so that the Member may keep his or her own books and know what his or her own financial margin of manoeuvre is. It is irrelevant that the document may also be used by the services of the National Assembly, or even belong to it. The conditions in s. 34 have been met: the document was produced "for" a member by the services of the National Assembly, and this makes it exempt from access, unless the Member consents. The Commissioner's decision not to disclose is therefore based on reasonable grounds that can stand up to a somewhat probing examination (Canada (Director of Investigation & Research) v Southam Inc., [1997] 1 S.C.R. 745, at p. 776).

    3. Analysis of the Commissioner's Decision Under Section 57 of the Access Act

  24. The Member for d'Arcy McGee agreed to allow access to the document relating to him that is the subject of the request in this appeal, exercising the discretion given to him by s. 34 of the Access Act. The provisions relating to the confidential nature of nominative information, ss. 53, 54, 55 and 57, apply since they cannot be overridden by the consent given by the Member. If we read the document requested, we find that it contains the names and salaries of the persons who were hired or given contracts of employment. Was it reasonable for the Commissioner to find that this was nominative information within the meaning of the Act? The appellant argues that s. 57 of the Access Act makes the information in question public: he contends that Members of the National Assembly must necessarily be classed as public bodies for the purposes of the Access Act and that persons hired by Members should be classed as members of the staff of a public body, and that this would make the nominative information public, as provided in s. 57, paras. 2 and 3. The relevant sections read as follows:

    53.

    Nominative information is confidential, except in the following cases:

    (1)

    where its disclosure is authorized by the person concerned by the information; in the case of a minor, the authorization may also be given by the person having parental authority;

    (2)

    where it relates to information obtained in the performance of an adjudicative function by a public body performing quasi-judicial functions; the information remains confidential, however, if the body obtained it when holding a sitting in camera or if the information is contemplated by an order not to disclose, publish or distribute.

    54.

    In any document, information concerning a natural person which allows the person to be identified is nominative information.

    55.

    Personal information which, by law, is public is not nominative information.

    ....

    57.

     

    The following is public information:

    ....

    (2)

    the name, title, duties, address and telephone number at work and classification, including the salary scale attached to the classification, of a member of the personnel of a public body;

    (3)

    information concerning a person as a party to a service contract entered into with a public body, and the terms and conditions of the contract;

    ....

    Moreover, in no case may the information contemplated in subparagraph 2 of the first paragraph result in the disclosure of the salary of a member of the personnel of a public body.

    [Emphasis added]

  25. The Commissioner concluded that Members are not public bodies within the meaning of the Access Act, basing his decision primarily on Québec (Assemblée nationale) v Sauvé, [1995] C.A.I. 427 (C.A.), from which he quoted the following passage, at p. 431 [TRANSLATION]:

    In other words, a Member may be distinguished in every way from the National Assembly. The Member may not, like the National Assembly, be classed as a public body, there being no analogous wording in s. 3, para. 2.

    [Emphasis added]

  26. My colleagues are of the opinion that each Member is a public body. By classing the National Assembly as a public body, they say, the legislature also classed the Members of which it is made up as public bodies. In their view, if there were an absolute distinction between the National Assembly and its Members, the first paragraph of s. 34 would not be necessary. In other words, if Members are not classed as public bodies, then they fall outside the ambit of s. 34 because the Access Act applies only to public bodies. With respect, I do not share their opinion.

  27. First, it must be noted that Members are not included in the definition of "public body" that the legislature has provided in s. 3 of the Access Act:

    3.

    The Government, the Conseil exécutif, the Conseil du Trésor, the government departments and agencies, municipal and school bodies and the health services and social services institutions are public bodies.

    For the purposes of this Act, the Lieutenant-Governor, the National Assembly, agencies whose members are appointed by the Assembly and every person designated by the Assembly to an office under its jurisdiction, together with the personnel under its supervision, are classed as public bodies.

    The courts within the meaning of the Courts of Justice Act (chapter T-16) are not public bodies.

    The courts have declined to extend that definition to entities that are not expressly referred to in that section of the Act (Plastiques M & R inc. v Bureau du commissaire général du travail, [1992] C.A.I. 372 (C.Q.), and Marchildon v Commission d'accès à l'information, [1987] C.A.I. 96 (Sup. Ct.)). The appellant in fact acknowledges that the decisions on this question are consistent.

  28. As I said, s. 34 provides for a special procedure for Members' documents. It is reasonable to understand that Members are subject to the Act not because they are classed as a public body, but because the legislature has provided that the Access Act will apply to them within the limits prescribed by that Act. My colleagues' argument that if there were an absolute distinction between the National assembly and its Members the first paragraph of s. 34 would not be necessary can therefore not be accepted. The purpose of s. 34 is twofold:

    • to provide for access to certain documents and

    • to make that access subject to the Member's consent.

  29. To argue that the Members are the National Assembly, and that they cannot be distinguished from it, is to ignore completely the numerous distinctions in the Access Act. As Commissioner Comeau very accurately observed, referring to Sauvé, supra, the Access Act distinguishes the National Assembly, as a public body, from Members, as components of that body. For example, s. 34 makes a distinction between the Assembly and its Members, when it says that no person may have access to a document from the office of a Member of the National Assembly or prepared for the Member without the Member's consent. As well, in the case of the National Assembly, the information referred to as public in s. 57, para. 1 where it relates to "a member of a public body" can only mean a Member of the National Assembly. Lastly, the information referred to as public in para. 2 of that section where it relates to "a member of the personnel of a public body" can only mean the members of the staff of the National Assembly, who are different from the members of the staff of a Member of the National Assembly. It would therefore seem to be difficult to argue that no distinction can be made between the National Assembly and its Members.

  30. My colleagues also argue that s. 9 of the Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels serves no purpose if a Member is not classed as a public body. That section provides [TRANSLATION]:

    Subject to the provisions relating to access to information and to the protection of personal information, a member of the staff of a Member is bound by discretion regarding matters of which he or she has knowledge in the course of his or her duties.

    [Emphasis added]

    That section of the Regulation is included with two other ethical rules that the staff of a Member are required to follow. Section 8 of the Regulation imposes a duty to be loyal and bear allegiance to the government, and s. 10 governs conflicts of interest. The reference to the Access Act in s. 9 of the Regulation is necessary because employees of Members have access to a host of information in the performance of their duties, some of which is subject to that Act. The purpose of s. 9 is to remind employees of their duty of discretion, within the limits defined by the Access Act. If an employee is in possession of a document that is subject to that Act, he or she may not refuse access on the pretext that he or she has a duty of discretion.

  31. A Member, acting alone, cannot be confused with the National Assembly. No deed can be binding on the National Assembly unless it is signed by the President, by the Secretary General or by another officer, as provided by s. 23 of the Act respecting the National Assembly. As well, ss. 120 and 124.2, para. 2 of the Act respecting the National Assembly treat members of the staff of a Member of the National Assembly and members of the staff of the National Assembly differently. The staff of the National Assembly belong to the public service, unlike the staff of a Member. A Member is not the National Assembly, just as a member of the board of directors of a company is not the company.

  32. When the Commissioner based his decision on Sauvé, which refers to the numerous distinctions that the legislature has made between the National Assembly and the Members who make it up, and relied on the definition in s. 3 of the Access Act, he construed the meaning of s. 57 reasonably. Convincing argument is needed if it is to be suggested that the identity of a member who makes up a body is the same as that of the body. In this case, there is nothing to support changing the definition provided in s. 3.

  33. As well, I would note that even if we agreed that each Member is a public body, the very large majority of the information in the document requested should be exempted from disclosure. Section 57, para. 2 provides that the "salary scale" attached to the classification of a member of the personnel of a public body is public. The document in question contains the salary paid, not the salary scale. Section 57, para. 3 applies only to a service contract, that is, a contract for services, and the very large majority of contracts referred to in the document are contracts of employment.

  34. For these reasons, I would dismiss the appeal with costs.

    Bastarache J & Lebel J

    (dissenting, Major J & Binnie J join)

  35. The issue in this case is the right of access to documents concerning the expenses of Members of the National Assembly of Quebec pursuant to the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1 ("Access Act."). The outcome of the case depends largely on whether the documents requested are characterized as falling within s. 34, which creates an exception to the rule of disclosure in the case of documents that are produced for a Member of the National Assembly. Obviously, it also depends on the standard of review that applies to the decision of the Commission d'accès à l'information, which refused to authorize the disclosure of the documents.

  36. The appeal raises a second issue, this time relating to ss. 53 and 57 of the Access Act, which provide that no nominative information contained in a document that is subject to disclosure may be made public. What is required here is not to define the nature of the information requested, but rather to determine whether a Member of the National Assembly must be considered to constitute a public body within the meaning of s. 57. On that point, it is worth noting that while the appellant began by arguing that the Commission's decision was governed by the same standard of review as the one applicable under s. 34, reasonableness simpliciter, he altered his position at the hearing and asked that the correctness standard be applied.

    IFACTS

  37. On December 8, 1992, Roderick Macdonell, a journalist with The Gazette in Montreal, made a request under the Access Act for access to documents concerning the expenses of Members of the National Assembly. Only one document is in issue in these proceedings; it is entitled [TRANSLATION] "National Assembly, programming and budgetary control service, statement of expenses incurred for 1990 and 1991 by each Member of the National Assembly." The appellant had in fact obtained a document concerning a Member of the National Assembly from another source. That document shows the expenses incurred for all of the Member's staff, as well as the identity and remuneration of workers who worked for the Member on contract. The document includes all of the expenses incurred, taking into account the allocated budget and the balance in the Member's account. The appellant wishes to obtain the same information for all Members.

  38. On July 4, 1994, the person in charge of access to information at the National Assembly sent Mr. Macdonell a letter denying his request. The explanation given for the refusal was that the documents were produced for Members of the National Assembly and therefore belonged to an exempt class under s. 34 of the Access Act, and that only one Member had agreed to disclosure. The official in question nonetheless refused to disclose the documents relating to that Member since they included personal information the disclosure of which is prohibited by ss. 53 and 57 of the Access Act.

  39. The appellant appealed the decision to the Quebec Commission d'accès à l'information. The Commissioner, Paul-André Comeau, dismissed the appeal on August 24, 1995 ([1995] C.A.I. 222). At the hearing of the appeal, Mr. Comeau heard, inter alia, the testimony of Gilles Dumont, a computer and administrative systems analyst in the Direction de la gestion des ressources financières of the National Assembly, who stated that the amounts paid to Members are governed by the Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels, National Assembly, Règles administratives du Bureau, Decision No. 092, May 16, 1984 (updated November 1, 1990).  He explained that payments are made at the request of a Member, who submits a disbursement request on a form addressed to the accounting service of the National Assembly. Before authorizing payment, the service ensures that there is a sufficient credit balance in the Member's account. The document of which disclosure is requested in this case is produced in order to keep track of the Members' disbursements.  It is confidential; only a small number of people have access to it.

    IIAPPLICABLE STATUTORY PROVISIONS

  40. Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1

    1.

    This Act applies to documents kept by a public body in the exercise of its duties, whether it keeps them itself or through the agency of a third party.

    This Act applies whether the documents are recorded in writing or print, on sound tape or film, in computerized form, or otherwise.

    3.

    The Government, the Conseil exécutif, the Conseil du Trésor, the government departments and agencies, municipal and school bodies and the health services and social services institutions are public bodies.

    For the purposes of this Act, the Lieutenant-Governor, the National Assembly, agencies whose members are appointed by the Assembly and every person designated by the Assembly to an office under its jurisdiction, together with the personnel under its supervision, are classed as public bodies.

    The courts within the meaning of the Courts of Justice Act (chapter T-16) are not public bodies.

    5.

    Every person has a right of access, on request, to the documents held by a public body.

    The right does not extend to personal notes written on a document or to sketches, outlines, drafts, preliminary notes or other documents of the same nature.

    9.

    No person may have access to a document from the office of a member of the National Assembly or a document produced for that member by the services of the Assembly, unless the member deems it expedient.

    The same applies to a document from the office of the President of the Assembly or of a member of the Assembly contemplated in the first paragraph of section 124.1 of the Act respecting the National Assembly (chapter A-23.1) or a minister contemplated in section 11.5 of the Executive Power Act (chapter E-18), and to a document from the office staff or office of a member of a municipal or school body.

    53.

    Nominative information is confidential, except in the following cases:

    (1)

    where its disclosure is authorized by the person concerned by the information; in the case of a minor, the authorization may also be given by the person having parental authority;

    (2)

    where it relates to information obtained in the performance of an adjudicative function by a public body performing quasi-judicial functions; the information remains confidential, however, if the body obtained it when holding a sitting in camera or if the information is contemplated by an order not to disclose, publish or distribute.

    54.

    In any document, information concerning a natural person which allows the person to be identified is nominative information.

    55.

    Personal information which, by law, is public is not nominative information.

    57.

    The following is public information:

    (1)

    the name, title, duties, classification, salary, address and telephone number at work of a member, the board of directors or the management personnel of a public body and those of the deputy minister, the assistant deputy ministers and the management personnel of a government department;

    (2)

    the name, title, duties, address and telephone number at work and classification, including the salary scale attached to the classification, of a member of the personnel of a public body

    (3)

    information concerning a person as a party to a service contract entered into with a public body, and the terms and conditions of the contract;

    (4)

    the name and address of a person deriving an economic benefit granted by a public body by virtue of a discretionary power, and any information on the nature of that benefit;

    (5)

    the name and address of the establishment of the holder of a permit issued by a public body and which is required by law to be held for the carrying on of an activity, the practice of a profession or the operation of a business.

    However, the information contemplated in the first paragraph is not public information where its disclosure would be likely to hinder or impede the work of a person responsible under the law for the prevention, detection or repression of crime.

    Moreover, in no case may the information contemplated in subparagraph 2 of the first paragraph result in the disclosure of the salary of a member of the personnel of a public body.

    IIIJUDICIAL HISTORY

    The Quebec Commission d'accès à l'information

  41. The Commissioner ruled that the document requested could not be released except with the authorization of the Member in question, and subject to certain provisos.  He began his analysis by commenting on s. 34 of the Access Act. He said that it was clear that the document had been produced by the services of the National Assembly and that the only question in issue was whether it had been produced for a Member. In his view, the issue was not whether the document is used by the National Assembly; the document is restricted the moment it is produced for a Member. All that need be found in order to conclude that a document has been produced for a Member is that the information it contains relates specifically to the Member. In such a case, the document cannot be disclosed without the Member's consent.

  42. Mr. Comeau then considered whether s. 57, which differentiates between public and personal information, applies directly to staff employed by the Member. The issue is significant given that the Member for d'Arcy McGee gave his consent to the disclosure of the document under s. 34. On that point, Mr. Comeau relied on the reasons of Judge F.-Michel Gagnon of the Court of Québec in Québec (Assemblée nationale) v Sauvé, [1995] C.A.I. 427 (C.Q.). In that case, it was held that a Member cannot constitute a public body since the Act Respecting the National Assembly guarantees the Member's complete independence. The Commissioner concluded that since a Member himself or herself is not considered to constitute a public body, the information sought in the access request cannot relate directly to the staff or contractors employed by the Member.

  43. Finally, the Commissioner considered whether the documents produced for the Member for d'Arcy McGee could be released if they contained nominative information. Despite the authorization given by the Member, the Commissioner decided that ss. 53 and 57 prohibit the disclosure of documents produced for a Member that contain personal information relating to a physical person. Information relating to moral persons may nonetheless be disclosed.

    The Court of Québec (Judge Longtin)

  44. The appellant sought leave to appeal the decision of the Commission to the Court of Québec under s. 147 of the Access Act. It is important to note on this point that the decision of the Commission is protected by the privative clause in s. 154 of the Act.

  45. Judge Longtin dismissed the appellant's motion on the ground that the issue raised had already been decided in Université Laval v Albert, [1990] C.A.I. 438 (C.Q.), and Québec (Procureur général) v Bayle, [1991] C.A.I. 306 (C.Q.). In the first case, the court had simply decided that [TRANSLATION] "the essential question .... is whether these documents are cabinet documents .... or mere administrative documents that are available for consultation by a number of people" (p. 440); in the second case, the court had concluded: [TRANSLATION] "As long as the document in question comes from ... the office of one of the persons identified in s. [34], that person alone has the discretion to decide whether or not to grant access to it" (p. 307). With respect to s. 57, Judge Longtin simply relied on Québec (Assemblée nationale) v Sauvé, which the Commissioner had cited. He agreed with Judge Gagnon's reasoning in that case to the effect that the public nature of the funds used was of no relevance in applying s. 57 of the Access Act.

    The Superior Court

  46. After this setback in the Court of Québec, the appellant filed an application for judicial review of the Commissioner's decision in the Superior Court. Barbeau J., ruling on the motion, recalled the court's duty of deference in matters of judicial review. According to the court, several fundamental principles, namely the division of powers, democracy, and freedom of expression, were in issue. Barbeau J. then considered the purpose of the Access Act and went on to examine the nature of the documents that were the subject of the access request.

  47. In his view, s. 34 must be interpreted in accordance with the purpose of the Act and the need to preserve a Member's independence in his or her role as legislator. The document requested was public and disclosing it would have no impact on the Member's political and administrative role. He believed that the Judge of the Court of Québec had erred in law but had also, like the Commissioner, made a decision that was patently unreasonable by interpreting s. 34 in a way that was inconsistent with the Act and the Regulations as a whole. Section 34 is an exception to the general principle of access to information in public documents.  That provision must therefore be narrowly construed.

    The Court of Appeal

  48. The Court of Appeal was divided in this case. Forget J.A., speaking for the majority, allowed the appeal.  Chamberland J.A., for his part, would have affirmed the decision of the Superior Court.

  49. Forget J.A. first dealt with the issue of the applicable standard of review. Referring to Canada (Director of Investigation & Research) v Southam Inc., [1997] 1 S.C.R. 748, and Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, he decided that given the existence of a privative clause, the Commissioner's expertise and the nature of the problem, the intermediate standard of reasonableness simpliciter must be applied.

  50. On the substantive issue, Forget J.A. first pointed out that access to information is connected with the concept of democracy and that the Access Act is quasi-constitutional in nature. Nevertheless, he believed that he should be guided primarily by the wording of the Act. In his opinion, the Access Act makes no distinction between the legislative and administrative duties of a Member, and so Barbeau J. was wrong to consider this.  He added that the regulation also does not distinguish among the various services performed for a Member. On that basis, he concluded that the Commissioner's interpretation of s. 34 was not unreasonable.

  51. Forget J.A. then reviewed s. 57. In his opinion, that provision did not apply to Members of the National Assembly. In s. 34, the legislature distinguishes between the National Assembly and its Members.  If the legislature had wished to treat Members in the same way as the legislative body itself, it would have done so directly by including them expressly in the list of public bodies in s. 3. Without commenting on whether s. 3 is exhaustive, Forget J.A. simply noted that it does not specifically refer to the Members among the bodies that are subject to the Access Act. Accordingly, since s. 57 did not apply, the Commissioner's decision to refuse disclosure of the document despite the fact that consent had been given by the Member for d'Arcy McGee could not be considered unreasonable.

  52. In his dissenting opinion, Chamberland J.A. agreed that the intermediate standard of reasonableness should apply. He held however that the Commissioner's interpretation of ss. 34 and 57 was unreasonable.

  53. Citing the definition of the standard of reasonableness given by Iacobucci J. in Southam, which refers to the fact that the decision is not based on the evidence or that there was an error in the actual logical process that led to the conclusion, Chamberland J.A first pointed out that on the evidence in the record, the document requested was not produced for a Member within the meaning of s. 34. Rather, it was a document prepared by the accounting service for its own purposes.  He was of the opinion that it was unreasonable to conclude that the document was produced for the Member simply because it was delivered to him. Chamberland J.A. also believed that the Commissioner's reasoning was flawed since it failed to take into account the need for the exception to the rule of disclosure in s. 34 to be narrowly construed. In his opinion, both the purpose of the Access Act and the relevance of the documents to the role of the Member must be taken into account.

  54. With respect to s. 57, Chamberland J.A. found that no real distinction can be made between the National Assembly and its Members.  In his view, the distinction is not justified because that section can apply to a Member only in the Member's capacity as a person who is considered to constitute a public body. That is confirmed by the wording of s. 9 of the Regulations of the National Assembly.

    IVANALYSIS

    1. The Problem of the Standard of Review

  55. This appeal raises once again the problem of determining the standard for reviewing a decision made by an administrative body which has been given quasi-judicial powers.  In this case, the question is closely connected with the difficulties involved in the statutory interpretation of ss. 34 and 57. If the intermediate standard of the reasonableness of the decision must be applied, we must then examine how the methods of statutory interpretation impact on the concept of reasonableness, which is one of the fundamental components of the current system of judicial review.

  56. Before analysing ss. 34 and 57, it is important to recall that this appeal deals with an application for judicial review and that the decision in question is in fact the decision of the information Commissioner, not the decisions of the judges who ruled on that decision. Barbeau J., applying the most stringent standard of review, the patently unreasonable decision standard, nonetheless allowed the application for judicial review. On appeal, the two majority judges and the minority judge all applied the intermediate standard of reasonableness simpliciter; the parties accepted that standard in relation to s. 34. There is no need to examine the analysis of the Court of Appeal in detail. We would however note that, in this case, the privative clause is only partial since it provides for an appeal on any question of law or jurisdiction (s. 147). Furthermore, the Commissioner's special expertise is needed, for the actual interpretation of s. 34, only when findings of fact are involved. The protection of privacy and of the fundamental values of democracy is essentially a judicial function, as is the contextual interpretation of legislation involving the public interest. In Southam, supra, at paras. 35-37, Iacobucci J. points out that even though a question of fact is simply about what actually took place between the parties, determining whether those facts satisfy a legal test is a question of mixed law and fact. The more widely the rule will apply, the more the courts will tend to characterize a question as one of mixed law and fact. In our view, the decision concerning the application of s. 34 is a question of mixed law and fact because the Commissioner had to decide whether the document which was supposedly produced for a Member was produced exclusively for the Member or at the Member's request, and these are questions of law. This is also not a case in which different interests must be weighed, as is often the case in administrative law. It is therefore clear that the most stringent standard was not appropriate.

  57. As noted earlier, the appellant has changed his mind with respect to the standard that is appropriate in respect of the interpretation of s. 57 and is now asking that the standard of correctness be applied. It could indeed be argued that the question of whether a Member of the National Assembly must be considered to constitute a public body is a pure question of law that goes to the actual jurisdiction of the Commission. The privative clause indicates that the legislature did not intend to leave this type of question to the sole discretion of the Commissioner. In fact, this is a question that falls outside the Commissioner's expertise. As Iacobucci J. said in Pezim v British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 591:

    Even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.

    [Emphasis added]

  58. We know that the different decisions that an administrative tribunal makes in a single case may necessitate the application of different standards of review, depending on the nature of the decisions (Pushpanathan, supra, at para. 49). Some decisions relate to the facts, and others to questions of law or to questions of mixed fact and law. La Forest J. had addressed this issue earlier, in Ross v New Brunswick School District No. 15, [1996] 1 S.C.R. 825, and applied the decision of this Court in Canada (Attorney General) v Mossop, [1993] 1 S.C.R. 554. In Pezim, Iacobucci J. analyzed the decision of a highly specialized tribunal that had interpreted an Act which fell squarely within its mandate. In the present case, the issue is the interpretation of a provision that limits the Commission's jurisdiction, a matter in which the Commission has no special expertise. The nature of the problem submitted to the Commissioner is also relevant in determining the intent of the legislature (Pasiechnyk v Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, at p. 905; Commission de la santé et de la sécurité du travail v Autobus Jacquart Inc., J.E. 2001-197 (C.A.)). With regard to the above discussion, it is not really necessary to examine the standard of review that was adopted by the judges of the Court of Appeal since, as will be seen later, we find that the Commissioner's interpretation of s. 57 was unreasonable.

  59. As noted earlier, this case requires a close examination of the impact of the methods of statutory interpretation on the delineation of the concept of reasonableness.  In Southam, supra, at para. 56, Iacobucci J. describes the intermediate standard of reasonableness as follows:

    An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.

    [Emphasis added]

    We are of the opinion that there was no justification for the Commissioner's conclusions, but most importantly that they resulted from erroneous reasoning.  Here, as in Pezim, supra, we will apply the standard of reasonableness to the actual interpretation of the statutory provision (Pezim, at p. 598) in examining the reasoning of the Commissioner.

    2.  Analysis of Section 34

  60. We will now return to the analysis of s. 34. As noted earlier, the issue seems to have been joined on the question of whether the document the disclosure of which was requested was produced for the Member. The respondents argued that the document falls under s. 34 essentially because of its usefulness to the Member. They stated [TRANSLATION]:

    It is essential that a Member of the National Assembly keep accounting records of the expenses that he or she incurs and ensure that he or she does not exceed the amount of money allocated to the Member under the regulation, both in terms of the total payroll available to the Member and in terms of the maximum salaries that the Member may pay.

    The appellant argued that the document [TRANSLATION]

    is a document that was prepared by the financial resources management branch, an administrative service of the National Assembly, so that it can ensure compliance with the regulation respecting remuneration and ensure that the Members do not exceed the total payroll that is allocated to them.

  61. Those comments confirm that the document prepared by the accounting service is used both by the central administrative services and by the Member. The Commissioner recognized this fact and concluded that the document could fall under s. 34 even though it was not produced exclusively for the benefit of the Member. In his view, it was sufficient that the document was useful to the Member in order for it to be exempted from disclosure. In saying this, however, was he addressing the issue properly? Was this justification sufficient to establish the reasonableness of the interpretation?

  62. In our opinion, the Commissioner did not use the right method of analysis in interpreting s. 34. He should have kept the purpose of the Access Act, as set out in s. 9, foremost in his mind. That section states, in the first paragraph, the fundamental principle that access may be had to government information:

    Every person has a right of access, on request, to the documents held by a public body.

    That error affected the Commissioner's analysis so seriously that it made it unreasonable, considering that that concept has been defined by this Court, inter alia, in Southam, supra, and Pushpanathan, supra. As will be seen, that interpretation leads to an unresolvable conflict between the legislative purpose stated in the Act and the actual application of its provisions.

  63. The Commissioner then had to consider the meaning and scope of the exceptions to the general rule that are set out in s. 34 by examining the category of exceptions in question, that is, the category in Part 5: "Information affecting administrative or political decisions". The heading of a statutory provision is one of the indicators from which the legislature's intended purpose may be determined when exceptions are provided to the general scheme of an Act: R. v Lohnes, [1992] 1 S.C.R. 167, at p. 179; R. v Zundel, [1992] 2 S.C.R. 731, at p. 763; R. v Kelly, [1992] 2 S.C.R. 170, at p. 189. As the appellant rightly argued, the purpose of those exceptions is to guarantee the independence of the Member in performing his or her duties as a Member of the National Assembly. All of those exceptions, some of which are discretionary, while others are limited in time, refer to, inter alia, the following categories of documents: decisions or orders of the Conseil exécutif; legal opinions; studies; records of deliberations; statutory instruments; opinions and recommendations of a Member or consultant, and of a body; and knowledge appraisal tests.  All of those exceptions, which are relevant in applying s. 34, relate to the Conseil exécutif or the public bodies as collective entities.

  64. There is no provision in the Access Act giving the reasons behind those exceptions.  Secondary sources, however, are available which provide useful information about the legislative approach to access to information that has been widespread for approximately 20 years.  For instance, a commission set up by the Ontario government, which reported in 1980, analyzed the entire problem of access to government information in depth (Commission on Freedom of Information and Individual Privacy, Public Government for Private People (1980), "Williams Commission"). The report discussed the exclusion of certain information from the duty to disclose. The exceptions that were recommended corresponded, in substance, to the exceptions in Part 5 of the Act under consideration (vol. 2, at pp. 280-81). The report concluded that the judicial and executive branches had to be exempted from the duty to disclose. However, it did not contain any exceptions pertaining to access to the government's administrative or financial management documents (vol. 2, at p. 239). That approach reflected a principle of general access with narrowly defined exceptions.  In the present case, we must keep in mind that in adopting the Access Act, the National Assembly thought it appropriate that it should be subject, itself, to the legislation. In so doing, it expressed a desire for transparency that went beyond the solutions that have been adopted by other legislatures or were recommended to them.

  65. As previously noted, s. 34 is the only provision in Part 5 that relates solely to the documents of individual Members.  That provision exempts two types of documents from disclosure: documents from the office of a Member and documents produced for that Member by the services of the National Assembly, unless the Member deems that disclosure would be expedient. The request for access in this case involves the second category of document. We must therefore define the content of that category in order to construe and apply s. 34. The Commissioner defined that category very broadly and found that it included all documents prepared by the services of the National Assembly that are delivered to a Member. In our opinion, the Commissioner's interpretive approach was flawed. If he had applied the proper methodology, he would have excluded only certain types of documents.

  66. The respondents oppose the approach of the Commissioner on the ground that the wording of s. 34 makes no distinction based on the nature of the document prepared for the Member, an argument which seems to be founded on the reasons of the court in Université Laval v Albert, supra. However, the reasons of the court in that case are not conclusive, since it also wrote at p. 440 [TRANSLATION]:

    Given the evidence that was heard by the undersigned, they cannot conclude, like the commissioner, that the excerpts from minutes were documents that were produced and used by the administrative services of the university. In order for s. 34 not to be applicable in this case, it would have had to be clearly established that those documents were essential to the administrative aspect of the university -- in other words, essential to the decision-making by the institutional authorities or to the action taken on those decisions; no evidence to that effect was presented in this case.

  67. The analysis of the provision must necessarily take into account the legislative context, the purpose of the Act as a whole, and the purpose of the provision in question. This is necessary to avoid an error in the reasoning that supports the Commissioner's conclusion on the meaning of s. 34. This Court has often stressed the need to have regard to the overall purpose of the Act in construing it: Rizzo & Rizzo Shoes Ltd, (Re), [1998] 1 S.C.R. 27; 2747-3174 Québec Inc. v Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; R. v Sharpe, [2001] 1 S.C.R. 45. In Rizzo Shoes, Iacobucci J. interpreted the expression "terminate the employment of an employee" to include employees whose termination resulted from the bankruptcy of their employer, having regard to the purposes of the Act. He rejected the interpretation of the Court of Appeal, which had concluded that the ordinary meaning of the words used restricted the application of the statutory provision to those employees who had in fact been dismissed. Although he acknowledged that "[a]t first blush, bankruptcy does not fit comfortably into this interpretation", he concluded that this analysis was incomplete (para. 20). Iacobucci J. referred, rather, to the principles of interpretation and to the Interpretation Act, R.S.O. 1980, c. 219, now R.S.O. 1990, c. I-11, and concluded that the Court of Appeal had not paid sufficient attention to the overall scheme of the Act, its object, and the true intention of the legislature (para. 23). As Iacobucci J. said in Southam, supra, at para. 59, the standard of reasonableness simpliciter is closely akin to the standard that should be applied in reviewing findings of fact by trial judges.  E. Driedger notes in his work entitled Construction of Statutes (2nd ed. 1983), at p. 87, that the interpretation of an Act cannot be based simply on its wording:

    Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

    The plain meaning of the words will not be of much value if the court considers it without regard to the context of the statutory provision and the purposes of the Act.

  68. The justification for and importance of this approach were discussed at length by L'Heureux-Dubé J. in a dissenting opinion in 2747-3174 Québec Inc., supra. She focussed on the problems associated with the old rule about the plain meaning of the words, explaining that this rule obscured the fact (at para. 154)

    that the so-called "plain meaning" is based on a set of underlying assumptions that are concealed in legal reasoning. In reality, the "plain meaning" can be nothing but the result of an implicit process of legal interpretation.

    [Emphasis omitted]

    In her analysis, L'Heureux-Dubé J. quoted at para. 155 a scathing excerpt from M. Zander, The Law-Making Process (4th ed. 1994), at p. 126:

    The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.

    [Italics in original; underlining omitted]

  69. The conclusion must therefore be that it is essential in all cases to consider the purpose of the Act and the overall legislative objective. In Sharpe, supra, McLachlin C.J. refused to adopt an interpretation of s. 163.1(1)(a) that would have required that she include things in the definition of the intended material caught by the law that would not have served the legislative objective (para. 43).

  70. In this case, the same reasoning must be applied in analysing the expression "document produced for that member". Interpreting s. 34 without examining the legislative context and the specific purpose of the exception set out in that section is an error. As in Sharpe, failing to refer to the legislative objective creates a risk of catching things within the scope of the provision that should not be included, because including them does nothing to achieve the legislature's intended objective. It is also very clear that disregarding the legislature's overall intention contradicts s. 41 of the Interpretation Act, R.S.Q., c. I-16, as in Rizzo Shoes, supra. As noted earlier, the error made by the Commissioner creates an inconsistency between the objective of the Access Act, which he ignored, and its actual content. This confirms that his interpretation is unreasonable. The effect of the Commissioner's interpretation is that the legislature enacted an incoherent statute, giving generous access to government information on one hand, and denying access, even in respect of matters relating to the day-to-day management of public funds by the legislative body, composed of the Members, on the other.

  71. In our opinion, a narrow interpretation of the exceptions that is consistent with its underlying objective could not reasonably have led to the conclusion that s. 34 applied to the document requested since that document is essentially an accounting statement prepared for the accounting service. The other sections in Part 5 list the categories of documents that are exempt from disclosure at the discretion of the Conseil exécutif or of a public body acting as an entity; it seems to us that s. 34 must confer the same power on Members of the National Assembly acting individually. Although the other provisions of Part 5 do not provide an exhaustive list of cases where s. 34 applies, they nonetheless provide important guidance as to the types of information and documents caught by that provision. Even though it can be argued that s. 34 might possibly apply to cases other than those specifically mentioned in Part 5, the scope of that provision is not so broad that it would extend to the accounting statements in question. This is entirely consistent with the conclusion reached by the Commissioner himself, given that he accepted the testimony of Gilles Dumont, a computer and administrative systems analyst in the National Assembly's financial resources management branch.  In the Commissioner's opinion, Mr. Dumont's testimony confirmed that [TRANSLATION]:

    payment of amounts owing to the people thus employed is made at the Member's request. The Member must first fill out the proper form and send it to the National Assembly's accounting department. Before authorizing payment, the employee assigned to that job verifies that the total payroll that was made available to the Member has not been exhausted.

    [Decision of the Commissioner, at p. 225]

    We would also add on this point that it was not shown that the information requested could have any impact on the independence of the Member in performing his duties.  While the Commissioner did not discuss this point, we agree with the comments made by Chamberland J.A. on the issue.

  72. When s. 34 protects documents, it is for a specific purpose: the independence of a Member in performing his or her duties. Moreover, ss. 3 and 9 clearly state that the purpose of the Access Act is to allow public access to a portion of the documents kept by public bodies, including the National Assembly. That objective, the transparency of government administrative bodies, was recently reaffirmed by the Quebec Court of Appeal in a case in which it even pointed out the quasi-constitutional nature of this Act. In Conseil de la Magistrature du Québec v Commission d'accès à l'information, [2000] R.J.Q. 638, the court stated at para. 47 [TRANSLATION]:

    This issue involves a conflict between two important principles.  The first is the right to information, which is one of the cornerstones of our democratic system. Unless there is a clear exception, justified by the preservation of a higher interest (for instance, privacy), every citizen must have access to documents kept by a public body. Henceforth, the government and its agencies may no longer shelter behind administrative silence, or privilege, either to refuse to disclose even sensitive information, or to avoid accountability for their decisions.  There must be great transparency in the administration of public affairs; this is the guarantee of the democratic exercise of the individual's rights.  The 1982 access to information legislation represents a remarkable step forward in this respect, in its effort to achieve transparency in the management of public affairs.

    See also Y. Duplessis and J. Hétu, L'accès à l'information et la protection des renseignements personnels (loose-leaf ed.), vol. 2, ch. I, at p. 10 103).

  73. Because it disregards the legislative context and in particular the purpose of the Access Act, the Commissioner's interpretation of s. 34 is unreasonable. In 2747-3174 Québec Inc., supra, L'Heureux-Dubé J. clearly stated, at para. 150, that the rules of statutory construction are an essential part of the judicial process:

    While imprecision in the substantive law may potentially affect a certain segment of our society, vagueness in legal methodology has effects that pervade the entire judicial system in its broadest sense and are accordingly felt by society as a whole.

  74. In our view, legal interpretation is one of those areas of the law in respect of which the judiciary must be extremely vigilant and fully perform its normative function (para. 151). Iacobucci J. confirmed this in Rizzo Shoes, supra, at para. 27, when he found that the interpretation given by the Court of Appeal led to an absurd result:

    According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment . . Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile ....

    [Emphasis added]

    An error in the application of the method of interpretation will not necessarily amount to an unreasonable decision. However, some errors appear to be so fundamental that they vitiate the reasonableness of the decision. They therefore justify the intervention by the superior courts to ensure that the legal rule is properly applied and that the principle of legality that governs the actions of administrative tribunals is preserved.

  75. The need to interpret the Act in light of its real purpose is not simply a question of approach or of strategy. It is a duty, an essential part of the judicial process.  As Zander, supra, observed, if the court or the administrative tribunal does not take into account the legislative purpose in its interpretation, it is acting unconsciously or arbitrarily, and that is certainly not reasonable.

  76. In this case, the respondents' position regarding the exceptions to the duty to disclose cannot reasonably be defended. We strongly doubt that it is essential to a Member's ability to perform his or her role that the manner in which the Member spends the public funds made available to him or her, the use of which is subject to specific terms and conditions, be protected from disclosure.

  77. In our opinion, the Commissioner's decision relating to s. 34 is unreasonable. As stated earlier, his broad interpretation of a rule providing for an exception is inconsistent with achieving the purpose of the Access Act. The analysis also contains an error in the characterization of the document: there was nothing in the evidence submitted to the Commissioner that justifies his interpretation on that point. In fact, at p. 227 of his decision, Mr. Comeau wrote [TRANSLATION]:

    This does not in any way alter the fact that the documents are produced for the Member, that they are treated as confidential by some members of the staff of the Assembly who have access to them in the course of their duties, and that the Member has complete discretion in choosing his staff and the contracts for professional services that he enters into.

  78. There is no real explanation of the connection between the document and s. 34; this explanation is required according to Southam, supra. The Commissioner simply said that the fact that a document is kept by the accounting department does not mean that it will not be caught by s. 34. The Commissioner did not consider whether the document can be considered to have been prepared for the Member when it must, in any event, have been prepared for the accounting service, whether or not it was delivered to the Member. We note that the French version of the Access Act says that the document must be produced "pour le compte [du] député". This suggests that the document has a specific purpose that relates directly and specifically to the individual Member and the performance of his or her role. The English version confirms that interpretation by using the preposition "for" rather than "about". The Commissioner added that the document is kept confidential.  That is self-evident, and is the reason why the Access Act was enacted. The Commissioner also said that a Member is free to enter into contracts, but did not say how access to financial information would interfere with that freedom. Where the structure of and reasons for a decision are of this nature, that decision must be characterized as unreasonable within the meaning of that expression as used in judicial review.

    3.  Analysis of ss. 53, 55 and 57

  79. The second issue we must address is the prohibition on disclosing nominative information under s. 53, which is subject to the exceptions in s. 57. That section provides a list of information that is considered to be public:

    2.

    the name, title, duties, address and telephone number at work and classification, including the salary scale attached to the classification, of a member of the personnel of a public body;

    3.

    information concerning a person as a party to a service contract entered into with a public body, and the terms and conditions of the contract;

  80. It is clear that the information requested in this case will not be nominative if the Member is considered to constitute a public body. It is argued, first, that s. 1 of the Act Respecting the National Assembly, R.S.Q., c. A-23.1, which provides that the National Assembly "is composed of the Members elected", means that no distinction may be made between the Assembly and its Members.  Second, it is argued, based on the conclusions of Judge Gagnon in Sauvé, that the Members are distinct from the institution itself. We would note, on this point, that the Commissioner did not analyse the issue himself; rather, he simply adopted the reasons of Judge Gagnon in Sauvé.

  81. In order to dispose of the issue, we must first refer to s. 3 of the Access Act. That section provides that the National Assembly and every person designated by the Assembly to an office under its jurisdiction, together with the personnel under its supervision, are considered to constitute public bodies.  That provision is very important because the interpretation of the Access Act must take into account the intention of the legislature that the Assembly be subject to the duty of transparency. In other words, the Access Act must be interpreted not so as to impede its purpose, but so as to ensure that its purpose is achieved.

  82. Here again, two diametrically opposite positions must be analysed. The appellant submits that if the Member was not included in s. 57, it would not have been necessary to enact s. 34. If he was not considered to constitute a public body, no request for access to his documents could be made under s. 9. The respondents argue that the independence of the Members must be taken into account; they argue that if any interference with that independence had been intended, it would have been specifically set out in the Act.

  83. In Sauvé, Judge Gagnon found that s. 1 of the Act Respecting The National Assembly is not conclusive, particularly because the Access Act makes no connection between the source of the funds made available to a Member and his status as a public body, and because the Act Respecting the National Assembly makes a distinction between the staff of a Member and the staff of the National Assembly. In his opinion, reference to the Member's independence suggests that there would have been a specific provision recognizing the status of a Member as a public body if this had been the intention of the National Assembly.

  84. In our opinion, the reasons in Sauvé, supra, suffer from the same defect as the Commissioner's reasons with regard to s. 34, which were discussed earlier. Judge Gagnon analysed the Access Act literally, without considering its purpose, the justification needed for the exceptions to the principles it lays down, or what is actually required with regard to the Member's independence pursuant to s. 57. He did not refer to any rule of interpretation and did not do any contextual analysis.  By adopting those reasons, the Commissioner adopted a reasoning that does not meet the requirements of the standard of reasonableness described in Southam, supra, and Pezim, supra.

  85. Moreover, the respondents' argument does not take into account the need to ensure coherency between statutes, in this case between the Act Respecting the National Assembly and the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information. In Pointe-Claire (City) v Quebec (Labour Court), [1997] 1 S.C.R. 1015, Lamer C.J. said, at para. 61: "There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means that interpretations favouring harmony among those statutes should prevail over discordant ones ...." In this case, s. 3 of the Access Act expressly provides that the National Assembly and its staff are considered to constitute public bodies.  Section 1 of the Act Respecting the National Assembly provides that the Assembly is composed of its Members. An interpretation of s. 3 inconsistent with the recognition that the National Assembly is composed of its Members would be incompatible with the rule that there must be harmony among statutes.  The respondents argue that the Assembly must not be confused with its Members, even though that distinction is not consistent with the text of s. 3 and the clear intention that the National Assembly be included among the bodies covered by the Access Act. However, including the Members in this case does not diminish their independence in any way. The fact that a Member's staff is mentioned separately from the staff of the National Assembly does not appear to us to have any impact on the status of a Member. The fact that a Member has staff working exclusively for him or her facilitates the Member's work but says nothing about the Member's obligations of transparency under the Access Act. Nor is there any explanation showing why that distinction is essential to a Member's independence. After all, this independence appears prima facie to exist even if the Member does not have staff working exclusively for him or her.

  86. Section 53 sets out the general rule: nominative information is confidential. The objective of that section is clearly to protect privacy. Section 55 restricts the general rule by specifying that personal information which is public is subject to access. Section 57 provides examples that are very significant regarding the type of information that is requested in this case. The legislature intended that people who are employed by a public body or who do business with a body of that nature must forego confidentiality in their dealings with the public agency. The question that must then be asked is whether the Access Act should be interpreted as creating an exception to the rule for people who do business with Members rather than with the National Assembly directly. Would concluding that it did be consistent with the legislative intention? Would that deprive s. 3 of its value, in practice, in light of the objective of transparency assigned to an assembly "composed of the Members elected"? This is a fundamental consideration (Héroux v Groupe Forage Major, J.E. 2001-1677 (C.A.)).

  87. The Commissioner did not really provide independent reasoning to explain his position. He simply adopted the reasoning of Judge Gagnon in Sauvé. In our opinion, the analysis and reasoning of Chamberland J.A. must be preferred in this case. Like him, we believe that s. 34 would be largely pointless if the Member was not subject to ss. 55 and 57. Like Chamberland J.A., we are of the opinion that this conclusion is supported by s. 9 of the Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels, which provides [TRANSLATION]:

    Subject to the provisions relating to access to information and to the protection of personal information, a member of the staff of a Member is bound by discretion regarding matters of which he or she has knowledge in the course of his or her duties.

    The decision of the Commissioner on that issue was required to be reasonable, and it was not.

  88. For these reasons, we would allow the appeal, with costs at all stages of the proceedings.


Cases

U.E.S., Local 298 v Bibeault, [1988] 2 S.C.R. 1048; Pasiechnyk v Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890; Dayco (Canada) Ltd. v CAW-Canada, [1993] 2 S.C.R. 230; 3430901 Canada Inc. v Canada (Minister of Industry), [2002] 1 F.C. 421, 2001 FCA 254; Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53; Québec (Communauté urbaine) v Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; Rubin v Canada (Minister of Transport), [1998] 2 F.C. 430; Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748; Québec (Assemblée nationale) v Sauvé, [1995] C.A.I. 427; Plastiques M & R inc. v Bureau du commissaire général du travail, [1992] C.A.I. 372; Marchildon v Commission d'accès à l'information, [1987] C.A.I. 96; Université Laval v Albert, [1990] C.A.I. 438; Québec (Procureur général) v Bayle, [1991] C.A.I. 306; Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Ross v New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Canada (Attorney General) v Mossop, [1993] 1 S.C.R. 554; Commission de la santé et de la sécurité du travail v Autobus Jacquart inc., J.E. 2001-197; R v Lohnes, [1992] 1 S.C.R. 167; R. v Zundel, [1992] 2 S.C.R. 731; R. v Kelly, [1992] 2 S.C.R. 170; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; 2747-3174 Québec Inc. v Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; R. v Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Conseil de la magistrature du Québec v Commission d'accès à l'information, [2002] R.J.Q. 638; Pointe-Claire (City) v Quebec (Labour Court), [1997] 1 S.C.R. 1015; Héroux v Groupe Forage Major, J.E. 2001-1677.

Legislations

Access to Information Act, R.S.C. 1985, c. A-1.

Act respecting Access to documents held by public bodies and the Protection of personal information, S.Q. 1982, c. 30.

Act respecting Access to documents held by public bodies and the Protection of personal information, R.S.Q., c. A-2.1, ss. 1, 3, 9, 34, 53, 54, 55, 57, 114, 122, 123(3), 124-33, 146, 147, 154.

Act respecting the National Assembly, R.S.Q., c. A-23.1, ss. 1, 43, 120, 123, 124.2.

Code of Civil Procedure, R.S.Q., c. C-25, arts. 834 to 850.

Interpretation Act, R.S.O. 1980, c. 219 [now R.S.O. 1990, c. I.11].

Interpretation Act, R.S.Q., c. I-16, s. 41.

Règlement sur la rémunération et les conditions de travail du personnel d'un député et sur le paiement des services professionnels, National Assembly, Règles administratives du Bureau, décision no 092, 16 mai 1984 (mise à jour 1er novembre 1990), ss. 2, 3, 4, 7, 8, 9, 10, 12, 16-20, 61, 62, 63.

Authors and other references

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Duplessis, Yvon, et Jean Hétu. L'accès à l'information et la protection des renseignements personnels, vol. 2, éd. feuilles mobiles. Brossard, Qué.: Publications CCH, 2001.

Ontario. Commission on Freedom of Information and Individual Privacy. Public Government for Public People. Toronto: The Commission, 1980.

Zander, Michael. The Law-Making Process, 4th ed. London: Butterworths, 1994.

Representations

Mark Bantey, for the appellant (instructed by Gowling Lafleur Henderson, Montréal)

Claude Bouchard et René Chrétien, for the respondents (instructed by Saint-Laurent, Gagnon, Québec).


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