Federal judges have sharply criticized the Office of the Information Commissioner for a ten-year delay in processing an Access To Information complaint. “The administrative procedure in question constitutes a gross and outrageous abuse,” said the Federal Court of Appeal.
“It is undeniable the file should have been resolved in a much shorter time,” Justice Marc Nadon wrote on behalf of the Court. “I can only conclude the lack of diligence on the part of the Commissioner has resulted in the Access To Information regime being brought into disrepute.”
The Court cited extraordinary time spent managing a request for safety audits at Air Transat Inc. An unidentified applicant sought the data from regulators in 2005, and complained to the Commissioner in 2006 when records were withheld by Transport Canada. The Office of the Commissioner completed its investigation in 2016. Staff told the Court the case was complex.
“Complexity of the case cannot justify the ten-year delay,” wrote Justice Nadon: “The interest of the company in the pursuit of the case does not override the negative effects suffered by Air Transat and the Access seeker.”
Federal agencies do not comment on litigation. The Court noted three Information Commissioners came and went as the Air Transat case lingered with investigators.
“Delays are endemic across the Access system,” Commissioner Caroline Maynard said in 2018 testimony at the Senate legal and constitutional affairs committee. Maynard took office after the Air Transat report was completed. “I receive 2,400 complaints per year on different interpretations of the law, and in half of those cases I conclude the exclusions and exemptions mean the institution has not complied with the legislation,” said Maynard.
The Air Transat case involved auditors’ findings of a 2003 pilot project that saw the airline become the first to introduce a so-called Safety Management System. All major commercial airlines are now required to draft risk management plans under Canadian Aviation Regulations.
The original request was for 653 pages of records. Air Transat and the Department of Transportation sought to block the release of all data, claiming commercial confidentiality. The Federal Court of Appeal rejected the argument.
“I am unable to understand how and why its disclosure would likely cause alleged harm to Air Transat,” wrote Justice Nadon: “It is difficult to accept that a report more than fifteen years old” – it was written in 2003 – “can be of serious interest to the competitors of Air Transat.”
Justice Nadon said the decade spent on the Air Transat complaint caused airline lawyers to “repeat the work already done many years ago”, including tracking down former employees.