T-1636-86
Jim Omeasoo, Chief, Leo Bruno, Councillor,
Victor Bruno, Councillor, Frank Buffalo, Council
lor, Stanley Buffalo, Councillor, Floyd Dion,
Councillor, Brian Lightning, Councillor, Arnup
Louis, Councillor, Wilson Okeymaw, Councillor,
George Saddleback, Councillor, Lawrence Sad-
dleback, Councillor, Robert Swampy, Councillor
as representatives of the Samson Indian Band
#137 and the Samson Indian Band #137
(Applicants)
v.
William McKnight as Minister of Indian Affairs
and Northern Development, David Crombie as
predecessor Minister of Indian Affairs and North
ern Development and the Department of Indian
Affairs and Northern Development (Respondents)
and
Wendy Smith (Party Intervenant)
INDEXED AS: OMEASOO V. CANADA (MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT)
Trial Division, Jerome A.C.J.—Edmonton, Janu-
ary 4, 5; Ottawa, April 15, 1988.
Access to information — S. 44 application to review decision
to disclose Band's financial records made by person validly
designated by previous Minister to make such decisions
Designating order not renewed under new Minister — Whether
decision should be reversed since not made by head of govern
ment institution as required by Access to Information Act, s.
28(5)(b) and not made by properly designated official under s.
73 — Authorities granted by previous Minister continuing in
force until new Minister endorsing or otherwise disposing of
them: Re Putnoki and Public Service Grievance Board (1975),
56 D.L.R. (3d) 197 (Ont. H.C.) — Nothing in Act, including
provision that decisions under Act personal responsibility of
head of government institution overriding general principle —
Montana Band of Indians v. Canada (Minister of Indian and
Northern Affairs) applied — Records confidential third party
information protected by s. 20(1)(b).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 20(1 )(b), 28(5)(b), 44, 73.
CASES JUDICIALLY CONSIDERED
APPLIED:
Montana Band of Indians v. Canada (Minister of Indian
and Northern Affairs), not yet reported; Re Putnoki and
Public Service Grievance Board (1975), 56 D.L.R. (3d)
197 (Ont. H.C.).
DISTINGUISHED:
Communauté urbaine de Montréal (Société de transport)
v. Canada (Minister of the Environment), [1987] 1 C.F.
610; 9 F.T.R. 152 (T.D.).
COUNSEL:
M. K. Eisen for applicants.
Ingrid C. Hutton, Q.C. for respondents.
Everett L. Bunnell, Q.C. for intervenant.
SOLICITORS:
Lang Michener Lash Johnston, Toronto, for
applicants.
Deputy Attorney General of Canada for
respondents.
Parlee McLaws, Calgary, for intervenant.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is one of seven applica
tions under section 44 of the Access to Informa
tion Act [S.C. 1980-81-82-83, c. 111 (Schedule I)]
which came on for hearing before me at Edmon-
ton, Alberta on January 4 and 5, 1988. While the
facts and arguments in each application vary
slightly, the principles involved are the same. For
this reason, I have indicated that my reasons in
Montana Band of Indians v. Canada (Minister of
Indian and Northern Affairs), not yet reported,
would apply, with necessary modifications, to this
application as well.
The facts here closely parallel those of the Mon-
tana Band's application. One significant difference
is that the respondent is willing to concede in this
case that the financial statements were treated
confidentially by the Band. Even without that
concession, however, I would be prepared to make
the same finding in this application on the issues
addressed in the Montana decision.
This applicant made the additional argument,
however, that the decision to disclose its records
should be reversed since it was not made by the
head of a government institution as required by
paragraph 28(5)(b) of the Act and was not made
by a properly designated official under section 73.
As this submission raises an important question
about the authority to decide accèss issues under
the Act, I believe it should be dealt with separate
ly. Section 73 reads as follows:
73. The head of a government institution may by order
designate one or more officers or employees of that institution
to exercise or perform any of the powers, duties or functions of
the head of the institution under this Act that are specified in
the order.
The decision to disclose in this case was made by
Arthur C. Boughner, Director General of Finance
of the respondent Department. There is no dispute
that by an order dated July 8, 1983, the then
Minister of Indian and Northern Affairs, the Hon
ourable John Munro, designated officials holding
the position of Director General to decide, pursu
ant to paragraph 28(5)(b), whether to disclose
requested records following third party representa
tions. At the time this decision was made, however,
there was a new Minister of Indian and Northern
Affairs, the Honourable David Crombie. The
applicant alleges that because the designating
order was not renewed under the new Minister's
signature, the Director General was not authorized
to make a decision under paragraph 28(5)(b).
In support of this proposition, the applicant cites
the decision of Mr. Justice Dubé of this Court in
Communauté urbaine de Montréal (Société de
transport) v. Canada (Minister of the Environ
ment), [1987] 1 F.C. 610; 9 F.T.R. 152. In that
case, Dubé J. held that a Minister must expressly
designate an official to exercise the powers given
him under the Act—the official must not assume
for himself an implicit right to act in the Minis
ter's name (ibid., at pages 616 F.C.; 156 F.T.R.).
That ruling does not support the position taken by
the applicant here. In the Société de Transport
case there had been no delegation of authority
under the Act. The question before us here is
whether a properly authorized delegation will sur
vive a change in Ministers.
The respondent submits that this very question
has been decided by the Ontario Divisional Court
in Re Putnoki and Public Service Grievance Board
(1975), 56 D.L.R. (3d) 197 (Ont. H.C.). In that
case it was also argued that, because of a change
of Ministers, a delegation order made by the previ
ous Minister was no longer valid. The Court found
as follows, at pages 208-209:
We have considered this point carefully and have come to the
conclusion that it is not sound. The consent given by the
previous Minister continued to be valid until revoked or varied
by the incoming Minister. While it is undoubtedly good prac
tice that a new Minister should, immediately upon assuming
office, ensure that he exercises his authority in respect of all
necessary consents and delegations under the statutes which he
administers, previously existing authorities granted or con
ferred by his predecessor continue until such time as he is able
to put his mind to endorsing or otherwise disposing of them. To
hold otherwise would be to cause great difficulties in the
administration of statutes during the period of transition in the
normal transfer of portfolios from one Minister to another.
Such acts represent the authority of the office, not of the
individual, and they do not cease to have effect because the
incumbent changes, unless the statute otherwise declares.
I endorse this language and find it applicable to
the point at issue here.
The applicant seeks to distinguish the Putnoki
case by pointing to the last words of Mr. Justice
Henry quoted above, "unless the statute otherwise
declares". It is alleged that the Access to Informa
tion Act does "otherwise declare" because it makes
decisions under the Act the personal responsibility
of the head of the government institution. How
ever, I can find no language in the Act which
would override the general principle stated by the
Divisional Court. I therefore do not find that Mr.
Boughner required a fresh designation by the new
Minister in order to make a decision under para
graph 28(5)(b).
While the applicant is unsuccessful on this
point, for the reasons given in the Montana Band
decision, I have decided that the Samson Band's
financial statements are confidential third party
information protected by paragraph 20(1)(b) of
the Act and must not be disclosed. The section 44
application will therefore be allowed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.