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Document
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P-1362
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File #
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P_9600450
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Institution/HIC
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Ministry of Finance
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information andProtection of Privacy Act (the Act ) to the Ministry of Finance (theMinistry). The request was for access to all documentation regarding theappellant's company's registration with the Small Business DevelopmentCorporation. The Ministry granted the appellant access to 658 pages of records. TheMinistry indicated that it would charge a fee of $161.60, calculated as follows: 658 Photocopies @ $0.20$131.60 Preparation of the Records - 1 hour @ $30.00 per hour$30.00 TOTAL$161.60 In this same decision letter, access was denied to 40 pages of records onthe basis of several exemptions in the Act . The appellant wrote to this office to appeal the denial of access. As aresult, Appeal P-9600256 was opened. The access issue was resolved by theissuance of Order P-1313. In his letter of appeal, which was copied to the Ministry, the appellantindicated that he would like to see the records to which access was beinggranted, at a Ministry office in Ottawa, to decide which ones he would likephotocopied. The Ministry decided not to grant this request. The appellantsubsequently indicated that he wished this to be an issue in the appeal, and inhis representations concerning the access issue, he advised that he would alsolike the appeal to include a review of the fees being charged. From a file processing perspective, this office treated the issue of viewingthe records in Ottawa, and the issue of the fees, as additional issues in anexisting appeal. No new appeal fee was charged. For administrative reasons, anew appeal number was assigned to these issues (P-9600450). This office sent the parties a Notice of Inquiry inviting representations onthese two issues. Only the Ministry submitted representations in response tothis notice. In its representations, the Ministry submits that these issuesrepresent new appeals which were filed outside the statutory time framepermitted by section 50(2) of the Act . Accordingly, the issues to be decided in this order are: (1)whether the issue of viewing the records in Ottawa, and the issue of thefees, are new appeals, and if so, whether they were filed in time; (2)if these are new issues and not new appeals, whether the appellantshould be permitted to raise them when he did; (3)if the appeal is to proceed, whether the appellant should be permittedto view the records in Ottawa; (4)if the appeal is to proceed, whether the fees charged are in accordancewith the Act and the applicable portions of Regulation 460 (theRegulation). DISCUSSION: NEW APPEALS OR NEW ISSUES IN AN EXISTING APPEAL? Section 50(2) of the Act states: An appeal under subsection (1) shall be made within thirty days after thenotice was given of the decision appealed from by filing with the Commissionerwritten notice of the appeal. As noted above, the Ministry submits that issues (3) and (4), as summarizedabove, are new appeals which are out of time because of section 50(2). Given that the decision letter containing the fee was dated May 21, 1996,and the appellant did not raise the fee issue until submitting hisrepresentations regarding the issue of access on August 23, 1996, it is clearthat if this is a new appeal, it was filed outside the time frame stipulated insection 50(2). The request to see the records in Ottawa was made on June 8, 1996, and theMinistry advised the appellant of its decision to decline this request, bytelephone, on June 12, 1996. The appellant advised this office of his desire tohave this decision reviewed on December 12, 1996. Although the Act doesnot contemplate verbal "notices of decision", if this is treated as anew appeal, an argument could be made that it falls outside the time frame insection 50(2). In any event, because these issues arose in connection with the requestunder consideration in Appeal P-9600256, I find that they are properlycharacterized as new issues, not new appeals. The use of a separate appealnumber by this office, for reasons of administrative convenience, does not meanthese issues are new appeals. Accordingly, in my view, dealing with theseissues does not contravene section 50(2). This leads to issue (2), namely, whether the appellant should be permittedto raise these issues when he did. RAISING OF NEW ISSUES BY THE APPELLANT As part of its argument to the effect that issues (3) and (4) are newappeals which should not be permitted to proceed because of section 50(2), theMinistry states: Using the courtroom analogy, the pleadings are to be drawn very wide atfirst instance, with the understanding that some issues can be dropped but noneadded. In my view, this submission is more properly directed to the questionaddressed here, namely whether issues (3) and (4) should be permitted to proceedas new issues in an existing appeal. This particular submission of the Ministry's appears to be contradicted byRule 26 of the Rules of Civil Procedure , which provides for theamendment of pleadings, including the addition of new issues and/or parties insome circumstances. Moreover, procedural rules followed by courts do notnecessarily apply to administrative tribunals, whose right to establish theirown procedures is well established in law. In the context of appeals under the Act , there are circumstances inwhich institutional parties are permitted to raise new issues. For instance,institutions may raise new mandatory exemptions during an appeal, and in somecircumstances they will also be permitted to raise new discretionary exemptions. This may occur despite the fact that, generally speaking, the Act requires institutions to make access decisions (i.e. whether to claimexemptions, and which ones to claim) within thirty days after receipt of arequest, before an appeal has even commenced. Therefore, when an institution ispermitted to raise a new exemption during an appeal, the time for claiming a newexemption has, in effect, been "extended" beyond the time contemplatedby the Act for doing so. In my view, fairness dictates that a similar latitude be given to appellantswishing to raise new issues. This will have to be assessed in the individualcircumstances of each case, taking into account the possibility of prejudice toeither party, and questions of administrative efficiency and convenience. Fairness to the parties is the overriding factor. In the present appeal, the Ministry seeks to impose strict time limits onthe appellant, based on section 50(2) of the Act . In this regard,however, I note that the Ministry received the request at one of its offices onMarch 4, 1996, although it did not reach the Ministry's Freedom of Information
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Legislation
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Subject Index
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Signed by
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John Higgins
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Published
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Mar 07, 1997
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Type
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Order
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