Section 21 - Advice/Recommendations

The Provision:

    21(1) The head of a government institution may refuse to disclose any record requested under this Act that contains
      (a) advice or recommendations developed by or for a government institution or a minister of the Crown,
      (b) an account of consultations ordeliberations involving officers or employees of a government institution , a minister of the Crown or the staff of a minister of the Crown,
      (c) positions or plans developed for the purpose of negotiationscarried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
      (d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
      if the record came into existence less than twenty years prior to the request.
    21(2) Subsection (1) does not apply in respect of a record that contains
      (a) an account of , or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person ; or
      (b) a report prepared by a consultant or an adviser who was not, at thetime the report was prepared , an officer or employee of a government institution or a member of the staff of a minister of the Crown.

Section 21 - Advice/Recommendations

The "Test":

1) Preliminary matters:

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizens or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, our Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Section 21 is a discretionary class exemption. This is a two step process requiring two distinct determinations by the head of the institution. First the head must determine whether the records fall within the class enunciated in the exemption. Secondly, he/she must also exercise his/her discretion whether to disclose the information by determining the consequences/effect to be expected from the disclosure of the requested information considering whether these consequences outweigh the public interest in the disclosure of this information.

When reviewing the application of a discretionary exemption like section 21, it is important to remember that the government institution has the evidentiary burden of showing not only that the information falls within the scope of the exemption, but that the head of the institution or his/her delegate properly exercised their discretion in deciding not to disclose the information. If there is no evidence establishing that the institution head considered whether or not to disclose information subject to a discretionary exemption, or if the evidence about why they decided to refuse disclosure indicates the head relied on irrelevant or unreasonable factors or on improper considerations or that the decision is not consistent with the objects of the Act (that of extending disclosure of government information subject to limited and specific exemptions), then it is open to our office, and to the Federal Court on a review, to question or reject the decision to refuse disclosure.

The investigation of why the institution head exercised his or her discretion to refuse disclosure of information described in section21 will be an extremely important component of any investigation involving section 21. This is because section 21 describes a very broad class of records dealing with many aspects of government policy making, negotiating and internal operations. In a decision involving paragraphs 21(1)(a) and (b), the Federal Court set out the competing interest behind the section21 exemption and the principles of openness and transparency at the foundation of the Access to Information Act as a whole:

    Despite the importance of governmental openness as a safeguard against the abuse of power, and as a necessary condition for democratic accountability, it is equally clear that governments must be allowed a measure of confidentiality in the policy-making process. To permit or to require the disclosure of advice given by officials, either to other officials or to Ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies.

    It would be an intolerable burden to force Ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

    On the other hand, of course, democratic principles require that the public, and this often means the representatives of sectional interests, are enabled to participate as widely as possible in influencing policy development. Without a degree of openness on the part of government about its thinking on public policy issues, and without access to relevant information in the procession of government, the effectiveness of public participation will inevitably be curbed. Canadian Council of Christian Charities v. Canada (Minister of Finance), (T.C.T.C., May 19, 1999, unreported).

After noting the broad range of documents covered by paragraphs 21(1)(a) and (b), the Court indicated that the Act has left the institution head, subject to the review and recommendations by the Information Commissioner, with the "discretion to decide which of the broad range of documents that fall within these paragraphs can be disclosed without damage to the effectiveness of government". As the Court has only a small role in overseeing the exercise of this discretion, it is therefore very important that our office investigate the way in which institution heads have exercised their discretion not to disclose information under section 21.

To investigate the exercise of discretion by an institution head under section 21, the factors set out by the Court above will be helpful to assess the reasons for refusing to disclose the information against the purposes of section 21 and the principles of openness behind the Act as a whole. The Court identified one line of inquiry in reviewing the exercise of discretion - that of determining whether the records could be disclosed without damage to the "effectiveness of government". Another line of inquiry in reviewing discretion is to determine whether and how damage to government decision-making or government negotiations would result from disclosure. The Grids section identifies specific lines of inquiry to review the exercise of discretion under section 21 based on these purposes.

The notes which follow are based to a great extent on the Treasury Board Guidelines but while there are similarities, we differ in substantive respects on the exercise of discretion and on consultations.

Section 21 - Advice/Recommendations

2) Paragraph 21(1)(a ):

  • Criteria for application: This exemption is a discretionary class exemption which applies to advice or recommendations in respect of government operations and policy that occur at the ministerial or other sub-Cabinet level. In order to qualify for exemption, the document (or relevant part thereof) must comply with the following criteria:

Canadian Council of Christian Charities v. Canada (Minister of Finance), (F.C.T.D., May 19, 1999, unreported).

  • The Federal court Trial Division held that documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislation provision would not fall within paragraphs 21(1)(a) or (b). The Court decided, however, that internal documents which "analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change" are likely to be caught within paragraphs 21(1)(a) or (b).

a) The purpose of the communication must be to give advice or make a recommendation to a government institution or a Minister:

You must look at the record itself and in context to determine its true nature.

  • Subsection 21(1) was not intended to exempt all communications between public servants despite the fact that many communications can be viewed as advice or recommendations. The purpose of the exemption is to protect the free flow of advice and recommendations within the deliberative process of government decision-making and policy-making 1 - i.e., where to disclose the information at issue would cause an adverse effect.
  • (Ontario Reconsideration Order R-970003 by Tom Mitchinson (21 May 1998). It has been established in a number of previous orders that advice or recommendations for the purpose of section 13(1) must contain more than mere information. To Qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative progress. Information that would permit the drawing of accurate inferences as to the nature of the actual advice and recommendation given also qualifies for exemption under section 13(1) of the Act.
  • 'Advice' for the purposes of subsection 21(1) of the Act, must contain more than mere opinion. Generally speaking, advice constitutes a submission as to a future course of action which will ultimately be accepted or rejected by its recipient during the deliberative process.2 For example, the statement that "In my opinion, department X did not follow procedure Y" is not advice because it is not related to an action. However, the statement "In my opinion, department X should be monitored because my review suggests that it did not follow procedure Y" would be advice. This second statement offers an opinion as to action.
  • 'Recommendation' for the purpose of subsection 21(1) of the Act, is just another form of advice. It means "the action of advising with insistence". 3 It must have both of the elements of advice present.

b) In some instances, you will encounter records containing statements such as: "my advice to you is..." or "I recommend that...":

Where information claims to be advice or recommendation - i.e., where words are used which indicate to the reader that the author intended to give advice/recommend you may presume the intention but you still must ask would a reasonable person - i.e., the person to whom it was addressed - or a judge - reach the conclusion on a balance of probabilities (i.e., the burden in section48 must be met) that the requirements of 21(1)(a) have been met - i.e., did it contain an opinion and a suggested course of action. But the bottom line is still whether the record contains advice or recommendations. If the presumption is not met, it is not advice.


c) The government sometimes suggests that there could be 'implicit' advice contained in records or part thereof:

There is no such notion of 'implicit' advice contained in the Act. So where the department claims it is implicit advice the test is still whether a reasonable person would conclude it is advice! In such circumstances, you should apply a two-fold test, both of which must be met, namely:


i) What was the intention of the author/sender of the information? Is it clear on a balance of probabilities that a reasonable person would conclude:
  • that the sender was (in fact) giving advice/making a recommendation; and
  • that what (information) constitutes the advice/recommendation is clear:

ii) The recipient would conclude that he/she was being given advice and/or receiving a recommendation
  • that the sender was (in fact) giving advice/making a recommendation; and
  • that what information constitutes the advice would be clear.

If both parts of this test can't be met, it is not advice etc. within 21(1)(a). We are not saying that only one interpretation of the advice or recommendation must be possible. We recognize that even where it is patently clear/evident that someone is trying to give advice/recommendation we may fail and the advice - because of its wording may be ambiguous/unclear BUT there should be no doubt in your mind that it is advice/recommendation before you support its exemption under 21(1)(a). If it is equally possible that the person may or may not be giving advice then the burden in section 48 has not been met.

It must be established that the disclosure of the information would result in injury to the deliberative process of the government.4 While we may not agree with the decision of the head of the government institution, if we are satisfied with the factors which the head took into consideration - i.e., the basis upon which the discretion was taken by the head of the institution and it must be accepted as valid. However, in the absence of any prejudice whatsoever to the deliberative process of the government, the information should be disclosed.


iii) The exemption provided by this paragraph applies to advice and recommendations developed:
  • by a government institution - i.e., by officials of a Schedule I institution;
  • by a Minister of the Crown or by his staff;
  • for a government institution (in Schedule I);
  • for a Minister - i.e., by his staff or officials.

Note, it is our policy that the advice/recommendation must come from within and that it cannot be formulated from outside the government. In that regard, see para 21(2)(b) below.


iv) Examples of documents that constitutes advice or a recommendation:
  • If the content of a document is exclusively objective and factual, it is not an advice or a recommendation. However, any subjective notes can be considered as advice if they constitute the opinion of the author and constitute a submission as to a future course of action.5
  • A letter of reference is an advice or recommendation because it is essentially subjective6 because it is expressing an opinion about an individual and recommending that person for a position.
  • The circumstances might indicate whether a document constitutes advice: in Couto et al. c. Ville de Longueuil7, the issue was whether a police report which indicated the probable cause of an incident constituted advice or a recommendation. In that case, the Quebec Commission decided that such a report was in fact covered by the exception since it was made in order to influence the Head of Operations - i.e., in making a decision whether to lay a charge.

v) Examples of documents that do not constitute advice or a recommendation:
  • The report of an investigator setting out the causes of a blaze which contains only factual and technical conclusions and which cannot not be separated from the investigator's personal observations do not constitute advice or recommendation.8
  • The criteria used by the inspector to arrive at an opinion as to the nature of the blaze doesn't qualify either as advice or recommendation. They are facts more than opinions.9
  • Similarly, a mere subjective conclusion does not constitute advice or a recommendation because it does not constitute a submission as to a future course of action.10
  • The observations of a member of a selection committee which pertain to a person who filed a job application do not constitute advice or recommendation since they are merely factual conclusions. However, the judgment made about the value of the candidate (and whether he/she should be hired) constitutes advice.11
  • The decision based on the advice or recommendation is not exemptible under this provision12. The decisions taken at a meeting are neither advice nor a recommendation. Moreover if the advice is incorporated into the decision, it is not exemptible under 21(1)(a).
  • Input to the government by members of the public on issues canvassed by the focus group session, although arguably helpful in the formulation of government policy, does not constitute advice or recommendations for the purpose of section 13(1).13 In addition, the work of a polling firm in summarizing, analyzing and interpreting the results of these focus group sessions did not constitute advice or recommendations. In order to come within the scope of section 13, the consultant would have to take the extra step of applying that analysis in the form of actual advice, recommendations or suggested courses of action to be taken by the client Ministry.
  • A medical diagnosis is not advice or a recommendation because the information which constitutes the diagnosis is not distinguishable from the medical observation itself. 14 However, the medico-administrative recommendation (recommended treatment) that the physician makes following the diagnosis and which invites the government institution to make decisions regarding the patient is advice or a recommendation15.
  • In fields other than medicine the same can be said about comments made by experts. Therefore, a report which determines whether financial statements of an institution are accurate is not advice or a recommendation since its aim is not to help a person to take a decision.16 However, solutions suggested in the report are considered as advice or recommendations.17
  • Finally, the Commission d'accès in Deslauriers c. Sous-ministre de la Santé et des Services sociaux du Québec,18 gave further indication as to what doesn't constitute an advice or a recommendation:
    • a classification of the information;
    • a conclusion subsequent to a simple analysis of factual background information;
    • an observation or remark that does not contain enough substance or precise indication to have any influence
    • factual statements
    • observations
    • personal observations
    • a hypothesis or a question.

Section 21 - Advice/Recommendations

3) Paragraph 21(1)(b)

  • Criteria for application: This exemption is a discretionary class test which applies to accounts of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown, or the staff of a Minister of the Crown. In order to qualify for exemption, the record must comply with the following criteria:

  a) A government institution must be involved: To that effect, section 3 of the Act defines 'government institution' as:
  • "Any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I".

In order that this criteria be complied with, it is sufficient that one government institution be involved. It does not require that the department/ institution claiming the exemption be involved.


  b) Government people must be involved:

Minister of the Crown or members of the minister's staff or officers or employees of a government institution must be actively involved in the actual consultations or deliberations in order to trigger paragraph 21(1)(b). They must participate in the consultations or deliberations, not simply report or observe the consultations or deliberations between two or more persons who are not officers or employees, Ministers of the Crown or Minister's staff members of a government institution as defined in the Act.


  c) There must be an account of consultations or deliberations:19

The minutes of a meeting which record only the decisions taken at the meeting are not exemptible under 21(1)(b) because they are the result of deliberation.

In Rubin v. Canada Mortgage and Housing Corporation, [1989] 1 F.C. 265 (C.A.), the Federal Court of Appeal did not accept that the minutes of meetings of the board of directors and executive committee of CMHC were necessarily exempted in their totality under the 21(1)(b) exemption. Consequently, it referred the request for such minutes back to the agency with the message that the minutes be reviewed in detail and suggested that some parts could have been properly treated as subject to disclosure.

This exemption in paragraph 21(1)(b) does not apply to pure facts, the questions/topics under which the consultations/deliberations arose, or to decisions taken from such consultations/deliberations. In summary, this exemption would not include any material not entailing an exchange of views.20


  d) The consultations or deliberations must involve at least two or more of the following persons:
  • officials or employees of a government institution;
  • a Minister; or
  • the staff of a Minister.

It would not be logical if an advice/recommendation formulated by a person from outside the government cannot be exempted pursuant to paragraph 21(1)(a), but could be exempted under paragraph 21(1)(b) if it was formulated during the course of consultations/deliberations in which government officials were present. 21 The purpose of (b) is to permit accounts of consultations between government people to be exempted where to do otherwise would impair the ability of the government to operate.


  e) The disclosure of the information must result in injury to the deliberative process of the government.

Section 21 - Advice/Recommendations

4) Paragraph 21(1)(c ):

  • Criteria for application: This exemption is a discretionary class exemption which applies to positions or plans developed for the purpose of negotiations carried on by or on behalf of the Government of Canada and considerations relating thereto.

The purpose of this provision is to protect strategies and tactics prepared by or for government institutions for the purpose of negotiations. Given this purpose, the meaning of the terms 'positions' and 'plans' should not present any difficulty.

One should note that the positions or plans developed for the purpose of negotiations will be protected only where the negotiations have been carried on or will be carried on. Positions and plans developed for negotiations which are not scheduled but only remotely possible or which have been abandoned in their entirety could not be protected (although they might qualify for exemption pursuant to section 14 or 15).

It should also be noted that paragraph 21(1)(c) extends its protection beyond positions and plans to "considerations relating thereto". The term 'considerations' could be best defined in accordance with the Webster New Collegiate Dictionary, ninth edition, to mean: "a matter weighed or taken into account when formulating an opinion or plan". Thus, a record identifying the facts and circumstances or the factors taken into account when formulating plans and positions would also fall within the scope of this provision. The considerations must relate directly to the positions or plans.

Section 21 - Advice/Recommendations

5) Paragraph 21(1)(d ):

  • Criteria for application: This exemption is a discretionary class exemption which applies to plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. It's purpose is to protect plans relating to the internal management of any government institution listed in Schedule I. For example, it would protect plans to abolish positions, to do away with a program or to implement new programs.

It should be noted, however, that the protection afforded such plans extends only to the point where they have been started to be implemented. Generally speaking implementation has started once formal approval has been given by the final authority and any notice has been given about the contents of the plan or their implementation.

Section 21 - Advice/Recommendations

6) Subsection 21(2):

Subsection 21(2) identifies two situations where the exemptions provided by subsection 21(1) cannot be claimed.


  a) The first is set out in paragraph 21(2)(a) which prevents the application of subsection 21(1) to:
  • "an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person".

The business of government is very broad and affects many people in many ways. While the amount government regulates is on the decline, there are still thousands of decisions made every year that affect the rights of everyone.

The purpose of this provision is to ensure that the text of certain decisions and reasons are available to the public. However, it is clear from the Federal Court decision Information Commissioner of Canada v. Chairman of the C.R.T.C. [1986] 3 F.C. 413 (T.D.) that preparatory notes and other internal communications leading to a final decision are unaffected by paragraph 21(2)(a) where the actual decision and the reasons for that decision have already been made public.

Paragraph 21(2)(a) does not apply to all types of decisions. It is clear from the wording of this provision that only two types of decisions are affected - those made in the exercise of either a discretionary power or an adjudicative power and then only where the decision affects the rights of a person (this includes partnerships and corporations).

A 'person' includes a limited corporation, a partnership or an association. It is not restricted to individuals.

The following summarizes the application of the override:

  • The exception applies only to "an account of, or statement of reasons for a decision...". Therefore, the background documents or advice/recommendations leading to the decision may normally be exempted under subsection 21(1). An exception to this would be where the decision-maker incorporates the advice into the decision. For example, where the decision-maker writes 'I concur' or 'I approve', on the page containing the advice, the advice becomes the decision and must be disclosed.
  • For the exemption to apply, the discretionary power/adjudicative function must affect the rights of an person. The decision must therefore be binding in the sense of have some legal effect - i.e., a decision refusing to issue a permit - to that person.
  • As a general rule, if a decision affects the rights of an individual, the rule audi alteram partem applies. According to this rule, the person making the decision must 'hear the other side'. Nevertheless, this presumption should not be taken too rigorously; very often decisions are made by infringing upon the rules of natural justice. However, you should look to see if the affected person was given an opportunity to be heard. If the answer is yes, the rights of the person were probably affected by the decision.
  • The exemption covers judicial (adjudicative power + affects the rights of an individual) or quasi-judicial (i.e., recommendation that is not made based upon the law or regulations but affects the rights of a person).
  • One simplistic way to describe the exception would be: an account or statements of a judicial or quasi-judicial decision. Did someone had the authority to make a decision about someone, or to permit/ refuse someone permission to do something?

  b) The second situation in which the exemption provided by subsection 21(1) cannot be claimed is set out in paragraph 21(2)(b) which prevents the application of subsection 21(1) to:
  • "A report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a Minister of the Crown."

The following summarizes the application of the override:


  i) The information must be a report:

While the term 'report' is not defined in the Act and there is no jurisprudence on the issue, as Mr. Justice Rothstein explained in Canada Post Corporation v. Minister of Public Works et al., [1993] 3 F.C. 320 (T.D.); confirmed F.C.A. (February 10, 1995), A-372-93, dictionary definitions can be considered in determining the meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act.

This term is defined as follows in the Concise Oxford Dictionary, 8th ed. (Oxford University Press, 1991):

  • Report: "2 an account given or opinion formally expressed after investigation or consideration"

The term 'report' should be given a wide interpretation to be consistent with the purpose of the Act. It could include almost any advice, recommendation or deliberation (i.e., oral or written) made by a consultant or adviser.


  ii) The report must have been prepared by a consultant or an adviser:

These terms are defined as follows in the Concise Oxford Dictionary:

  • Consultant: "A person providing professional advice etc., esp. for a fee."
  • Adviser: "A person who advises, esp. one appointed to do so and regularly consulted."

In trying to determine whether we have an adviser or a consultant, we must look as to whether the person had a mandate to formulate his/her opinion (i.e., was solicited by the department), whether the person had the ability/experience to formulate an opinion; and whether there was some consideration (compensation paid) for the opinion provided.


  iii) The adviser was not at the time an officer or employee of a government institution:

When assessing this question, you can ask yourself questions such as: How was the consultant nominated to make the report? How was he paid?, etc.

In order to find the right interpretation of section 21, we must bear in mind the overall scheme of the Act. That scheme creates a specific right of access to records subject to exemptions which protect three specific outside interests. Information the government receives from other governments is protected under section 13. Information the government gets from individuals is protected under section 19. Similarly, information the government gets from all other third parties is protected if it fits within the provisions of section 20. These then are the only sources of information that are truly outside the government.

When the government obtains advice from another government, it is either protectable under section 13, or if it isn't, the government will not obtain that type of advice any more, at least not in the unprotectable mode or format. Similarly, outside advice received from individuals is clearly a matter of personal opinion and protectable under section 19. The same applies to third parties if the information falls under section 20. The advice and recommendations received from anywhere within the government comes from section 21 -- which is the section that deals with government operations.

Section 21 - Advice/Recommendations

TABLE OF AUTHORITIES

Canada

Information Commissioner of Canada v. Chairman of the C.R.T.C. [1986] 3 F.C. 413 (T.D.).

Rubin v. Canada Mortgage and Housing Corporation, [1989] 1 F.C. 265 (C.A.)

Ontario

Orders # 99, 118, 172.

Quebec

Boudrias, Fréchette, Gélinas et associés c. Régie de l'électricité et du gaz, (1984-86) 1 C.A.I. 331.

Cie d'assurances du Québec c. Ville de Chicoutimi, [1987] C.A.I. 84.

Cinq-Mars c. Commission administrative des régimes de retraite et d'assurances, [1986] C.A.I. 187.

Cooperative de commerce des Milles-îles c. Société des alcools du Québec, [1987] C.A.I. 454.

Couto et al. c. Ville de Longueuil, [1987] C.A.I. 24, 31.

Dancause c. Ministère des transports du Québec, [1986] C.A.I. 85.

Deslauriers c. Sous-ministre de la Santé et des Services sociaux du Québec, [1991] CAI 311.

Dufour c. Centre hospitalier Robert-Giffard, [1987] C.A.I. 574.

Dufour c. Commission scolaire Nouvelle Beauce, (1984-86) 1 C.A.I. 25.

Giroux c. Commission des écoles catholiques de Verdun, [1987] C.A.I. 394.

Houde c. Corp. mun. de la paroisse de Ste-Anne de la Pointe-aux-Pères, [1987] C.A.I. 214.

Huard c. Régie de l'assurance automobile du Québec, [1989] CAI 43, 47.

La Voix de l'Est (1982) Inc. c. Ville de Granby, (1984-86) 1 C.A.I. 54.

Lebel c. Commission scolaire de Manicouagan, [1989] CAI 358, 361.

Leblanc c. Centre hospitalier de Chandler, [1987] C.A.I. 181.

Morel c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 67.

Ouellet c. Fonds pour la formation des chercheurs et l'aide à la recherche, [1986] C.A.I. 38.

Pépin c. Commission administrative des régimes de retraite et d'assurances (C.A.R.R.A.), (1984-86) 1 C.A.I. 43.

Rainville c. Commission administrative des régimes de retraite et d'assurances (C.A.R.R.A.). (1984-86) 1 C.A.I. 437.

Robitaille c. Foyer Notre-Dame-de Lourdes, [1986] C.A.I. 152.

Rousseau-Martin c. Régie des rentes du Québec [1987] C.A.I. 331.

S... c. Ministère du Revenu du Québec, (1984-86) 1 C.A.I. 35.

Talbot c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 104.

Wilson c. Commission scolaire régionale protestante South Shore, (1984-86) 1 C.A.I. 594.

Section 21 - Advice/Recommendations

The Questions

Section -- 21(1)&(2)
Statement of Test to be Met
Exemption:
21(1) The head of a government institution may refuse to disclose any record requested under this Act that contains:
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,
(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
21(2) Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
(b) a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.
Relevant Questions Departmental Response Assessment

Inquiry Path

  1. Check age of record against 20 year time limit in section 21(1).
  2. Determine whether section 21(2)(a) or (b) applies
    • If so, section 21(1) exemption does not apply.
  3. If not, determine whether record is described by section 21(1)(a)-(d).
  4. 4. If so, determine whether the exercise of discretion by the government institution refusing disclosure is justified.
   

Section 21 - Advice/Recommendations

Section -- 21(1)
21(1) The head of a government institution may refuse to disclose any record requested under this Act that contains: […]
  • If the record came into existence less than twenty years prior to the request.
Statement of Test to be Met
Record must have been created less than 20 years prior to the request
Relevant Questions Departmental Response Assessment

When was the record created

  • assess this against date of request.

If 20-year date is close, ask what the continuing need is for protection of the information from disclosure.

  • see exercise of discretion sections below.

If 20 year mark has passed since the date of the request, ask why department could not exercise its discretion in favour of disclosure in such circumstances.

   

Section 21 - Advice/Recommendations

Section -- 21(1)
21(1) The head of government institution may refuse to disclose any record requested under the Act that contains

(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
Statement of Test to be Met
Advice or recommendations

  • requires a suggested course of action or decision to be taken.
  • implicit advice recommendations accepted if they suggest discernible course of action.
  • suggested course of action will ultimately be accepted or rejected by the government institution/minister.
Relevant Questions Departmental Response Assessment

What does the record describe?

Does it consist of a briefing note or other document destined for senior officials or the Minister?

If not, did the author intend to be conveying advice or recommendations to the recipients of the memo?

Look at paragraph 21(1)(b).

Was the briefing or memorandum requested by the Minister or senior official?

If it was not requested, are such briefings or memoranda provided in the normal course of departmental operations?

What is the purpose of the memorandum or briefing note?

Is the purpose to provide advice or recommendations to senior officials or Ministers?

Does the record contain a suggested course of action for the senior official or Minister to follow?

Does the record contain a suggested decision which the senior official or Minister should make?

  • what does this consist of?

Does the record make suggestions about policy initiatives?

  • what do these consist of?

Does the record make suggestions or provide options about responses the officials or a Minister could give with respect to a particular issue or matter of concern?

What response or steps are suggested?

Was the record generated outside of the department or government institution?

  • if so, does subsection 21(2) apply?

Was the outside author providing the memo or report pursuant to a statutory provision?

Look for statutory provisions requiring supervision of departmental operations by outside bodies and recommendations by outside bodies concerning departmental operations.

Is the government institution or Minister free to accept or reject the suggested course of action or suggested change or decision?

  • if so, what has the Minister or senior official done in response?
  • has a decision been taken or implemented?
  • was this decision similar to the advice given or recommendation made?
  • if so, has the head of the institution considered disclosing the advice (see section on discretion below)?
  • if not, would any harm result if the advice was disclosed (see section on discretion below)?
   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Does not include...
Relevant Questions Departmental Response Assessment

Does the record consist of factual observations, analysis or conclusions?

  • if so, does the record go on to make recommendations or give advice based on the factual observations, analysis or conclusions?
  • have the factual observations, analysis or conclusions been severed and disclosed?

Is the advice or recommendation intertwined with the factual observations or analysis?

  • can they be separated?

Does the record consist of guidelines, criteria, or manuals interpreting or apply rules/regulations/ legislation, i.e., Treasury Board Guidelines, Justice manuals, other manuals on regulatory activity (health protection, food and drug, transport, agriculture, pesticides, environment)?

If so, does the record go on to deal with any specific issues or give advice on particular matters?

  • if not, paragraph 21(1)(a) likely does not apply

Have the subject headings been severed?

Does the record contain statements of issues which present controversy or require decision/action by the Minister/senior officials?

  • if so, have descriptions of the issues requiring decisions being severed and disclosed?
  • if not, does the description of the issue contain advice or recommendations on how to handle the issue
  • indicate where this is

Does the record contain observations about departmental operations or issues relevant to the government institution?

If so, does this observation also contain advice or recommendations?

Is the purpose of providing the observation to inform the Minister rather than to provide advice or recommendations about follow-up action by the Minister?

  • if so, paragraph 21(1)(a) likely does not apply
   

Section 21 - Advice/Recommendations

Statement of Test to be Met

Developed by or for a government institution

  • advocacy or lobbying by outside groups is not included
  • does not include representations or submissions as to a course of action

Does not include requests for a particular course of action

  • oral advice by outside groups included only if solicited by institution
  • advice must be directed to the Minister/ official's interests, not those of the person giving advice
Relevant Questions Departmental Response Assessment

Who prepared the record?

Did a member of the government institution prepare the record?

If not, did another government institution prepare the record?

  • if so, what was the mandate of that government institution to provide advice or recommendations to the Minister or officials of the recipient government institution?

Was the record prepared by an individual or group outside of the government?

  • Does paragraph 21(2)(b) apply?

If a group outside the government prepared the document, for what purpose was it given to the government institution?

Did the group who prepared the document have a particular position which they advocated to the government institution?

Does the record reflect a lobbying effort by an outside group?

Does the record reflect requests for action on a particular matter by an outside group?

Has the government institution requested the outside group to provide advice?

Has the government institution requested representations, as opposed to advice, from outside groups?

Does paragraph 21(1)(b) apply in this situation?

Does the record reflect representations or submissions to the government institution as to a particular course of action as opposed to advice or recommendations?

Did the group who prepared the record prepare it for purposes of the group or for the government institution?

If it is claimed that the outside group was providing advice to the Minister, did the Minister request this advice?

For what reason would advice not requested by the Minister be expected or accepted by the Minister in the ordinary course?

Is there an established relationship between the Minister and the group that would mandate such advice being given?

  • i.e., Minister of Justice and CBA committee on judicial appointments
  • i.e., Minister of Transport and physicians advisory groups on medical fitness of pilots
  • Bureau of Biologics at Health Canada and outside experts on immunization
  • Prime Minister and Round Table on the Economy

Can the purpose of the document be described more as giving advice than as presenting the position of an interested person's stakeholder?

See discussion on relevant factors for the exercise of discretion below.

     

Section 21 - Advice/Recommendations

Paragraph -- 21(1)(b)

The head of a government institution may refuse to disclose any record requested under this Act that contains:

(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown.
Statement of Test to be Met
'Consultations' involves seeking advice, instruction or opinion for guidance in decision-making principally
  • internal
Relevant Questions Departmental Response Assessment

Does the record describe consultations?

Does it reflect advice or opinions given to a Minister/ government institution for guidance in decision making?

Did the government institution/Minister seek such advice, instruction or opinion?

Was the institution/Minister seeking consultations for assistance in its own decision making?

What was the government deciding the issue upon?

Why were consultations undertaken?

Was the purpose of the consultations more to seek the representations of outside groups as opposed to their advice, instruction or opinion or guidance?

See above at paragraph 21(1)(a) for questions relating to advice and recommendations.

If consultations were with groups internal to the government, was a joint decision or joint jurisdiction between the institutions involved?

If not, why was the other government institution being consulted?

Would the decision under consideration have a direct impact on the other government institution?

Was the decision-maker seeking opinion or guidance from the other government institution?

Was the decision-maker simply receiving factual input, without advice, instruction or opinion/guidance from the other institution?

What course of action is identified as being given through the consultations with the other institution?

   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Deliberations' involves an exchange of views with a goal of reaching a decision or agreed position, course of action
Relevant Questions Departmental Response Assessment

Does the record describe deliberations with another body?

Was the government institution seeking to exchange views on a particular matter with the other participants?

Was the government institution planning to jointly reach a decision or agreed position/course of action with the other participants?

What status did the other participants have to be engaging in joint discussions/decision making with the government institution?

  • See above for questions about consultations with other government institutions.
  • See above at section 21(1)(a) for questions with respect to positions of outside bodies with whom the government may be consulting.

Was the government institution soliciting guidance or joint decision-making?

Would the views being conveyed to the government institution be provided in the normal course of the operations of another department or of officials within the government institution?

If the input from outside the government institution was not directly solicited, is there a past relationship giving rise to an understanding that the views would be taken into account?

How often has the other institution provided input on these matters before?

What decision or potential course of action can be identified from the record?

     

Section 21 - Advice/Recommendations

Statement of Test to be Met
  • Must involve officers/employees of a government institution/Minister
Relevant Questions Departmental Response Assessment

Were officers or employees of the government institution involved in the consultations/deliberations?

  • in what way?

Did the involvement include participation and contribution to the discussions?

If not, was the purpose of the attending officials merely to observe or to note the views of those expressing them?

  • if so, what is the basis for the institution's claim that consultations or deliberations were taking place?

In what way did the government employees contribute to the consultations or deliberations?

At whose instance were the consultations or deliberations initiated?

If they were initiated by the government institution, was it for the purpose of seeking guidance or assistance in decision making (see above for questions on this topic)?

Does the record simply report on consultations undertaken by others?

What role did the government have in those consultations and deliberations, if any?

If government had no role, paragraph 21(1)(b) likely does not apply.

     

Section 21 - Advice/Recommendations

Statement of Test to be Met
  • Decisions recorded as part of the deliberations is not exempt.
Relevant Questions Departmental Response Assessment

Was a decision taken in the course of the consultations or deliberations?

Does the record record such a decision?

Has the decision been severed and disclosed?

Are there relevant parts of the record describing deliberations or consultations which are necessary in order to describe the decision taken?

  • if so, have these been severed and disclosed?

If a decision has been taken, what harm would be created by disclosing the account of consultations or deliberations now (see discussion on discretionary exemption below)?

     

Section 21 - Advice/Recommendations

Statement of Test to be Met

Discretionary Exemption institution must consider disclosing

  • assess public interest in subject matter against any harm of disclosure
Relevant Questions Departmental Response Assessment

Has the head of the government institution considered disclosing the document?

If so, what was the basis for refusing to disclose the document?

What interference in the decision making process would be created if the information was disclosed?

Has a decision been taken with respect to the subject matter of the record?

If so, why would disclosure of the advice, recommendations, consultations or deliberations behind it create harm?

Would there be on going interference in the decision making process?

What does this interference consist of?

Is there an on-going review or appeal from the decision taken?

What status does this appeal or review have?

Would disclosure impair the government's ability to maintain the course of action decided upon?

Has the course of action been implemented through regulations or legislation?

At what stage are the regulations or legislation?

Would disclosure compromise enacting the regulations or legislation?

If the decision is still under consideration, what harm would result from disclosing the advice, recommendations, consultations or deliberations received?

Is there significant public discussion about the issues under consideration?

Are there competing interests in favour of or opposing a course of action?

  • would disclosure aggravate this situation?
  • are the positions of the players well-known or public?

How would disclosure impair the government's decision making ability?

Is a decision by the government imminent

  • if so, when is it expected?

Will disclosure be made after the decision is taken?

If a decision is not imminent, what harm would disclosure of current advice or recommendations create?

Would disclosure interfere with consideration of the issue by other decision making bodies?

  • i.e., the cabinet, parliamentary committees, independent tribunals, courts.

Would disclosure make future advice less candid?

  • why?

Is the person or organization providing the advice/ deliberations independent of the recipient?

  • if so, how would disclosure impair or prevent future advice from this source?

Is the person providing the advice/recommendations required to do so by statute?

  • if so, how would disclosure impair or prevent future advice from being given?

Are the consultations undertaken mandatory?

  • i.e., Citizen's Code for proposed regulations
  • Statutory Instruments Act
  • statute requiring consultation and receipt of representations from interested persons

If so, why would disclosure prevent or impair future consultations?

How old is the record?

Does the 20-year limitation apply?

If the record does not involve a current issue, why would disclosure impair future decision-making in this area?

If the record reflects a matter upon which a decision has already been made, is the decision itself public?

Why would disclosure impair the ability of the government to maintain the decision?

What is the subject matter of the decision?

Does it involve a routine, administrative or technical matter?

If so, why is protection of the record required?

Has the head of the institution considered whether there is value in exposing the decision-making process through scrutiny through disclosure of the advice/deliberations?

Has the head of the institution considered the benefits of informing the public on considerations behind major or new policy initiatives?

How much of the information described in the record has been publicly discussed?

Would disclosure promote more public debate or analysis on an unresolved issued?

Is the subject matter of the deliberations or advice of public importance?

Are there compelling reasons (i.e., public safety, compassion, constitutional status of the decision) that would be served by its disclosure?

Would disclosure increase public confidence in the substantive decision or process behind the decision?

Would disclosure present an unfair picture of the decision making process?

  • if so, can this be ameliorated with an explanatory note?

Would disclosure unfairly expose individuals to public scrutiny?

  • i.e., individuals potentially subject to criminal charges
  • individuals pending disposition of criminal charges against them

Disclosure of highly sensitive personal issues (see section 19)

     

Section 21 - Advice/Recommendations

Paragraph -- 21(1)(c)

The head of government institution may refuse to disclose any record requested under this Act that contains

(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
Statement of Test to be Met
  • Related to section 14 and 15
  • Protects positions, plans, considerations relating thereto
Relevant Questions Departmental Response Assessment

Have sections 14 or 15 been claimed to exempt the records from disclosure?

  • if so, why is paragraph 21(1)(c) needed
  • is it because the injury test in sections 14 and 15 could not been met
  • if so, what harm would result from disclosure under section 21 (See exercise of discretion discussion below)

Does the record consist of information used during the course of negotiations?

Does it outline positions or plans for the use of negotiators?

Were the positions or plans implemented during the negotiations?

Could these positions or plans still be implemented in the future?

Does the information outline factors taken into account in developing positions and plans for the negotiations?

What are these factors?

How do they relate to the positions or plans?

Do they indicate when the position or plans would be used?

Do they outline the strategic reasons for developing certain plans or positions?

Does the record consist of factual analysis about issues relating to the negotiations?

Is this factual analysis known publicly?

How would disclosure of the factual analysis reveal what a position or plan with respect to the negotiations is?

How would revealing that the government has considered the factual analysis impact on the government's position in the negotiations?

Is the analysis or information directly relevant to on-going negotiations?

  • if not, how does the information relate to the negotiations?
  • if of little relevance or importance, see section on exercise of discretion below?
   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Negotiations must involve the government and an outside party
Relevant Questions Departmental Response Assessment

Who is involved in the negotiations?

Is the Government of Canada a party to the negotiations?

Are the negotiations being conducted within the government?

  • if so, paragraph 21(1)(c) does not apply

Is the government negotiating with the other parties, or is it an observer to do the negotiations?

What is the government's role in the negotiations?

If the government has only a tangential role in the negotiations, what is the need for protection of the information?

  • does some other exemption more properly apply (sections 18 or 20)?

Negotiations in which the government is not a party are not exempt under paragraph 21(1)(c).

See below for section on exercise of discretion under paragraphs 21(1)(c) and (d)

     

Section 21 - Advice/Recommendations

Section -- 21(1)(d)
The head of a government institution may refuse to disclose any record requested under this Act that contains

(d)plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation
Statement of Test to be Met
Must involve a government institution - Schedule I, Access to Information Act
Relevant Questions Departmental Response Assessment

Does the record reveal plans regarding a government institution?

Is the institution listed in Schedule I to the Access to Information Act?

  • if not, paragraph 21(1)(d) does not apply

Does the record relate to plans regarding personnel or the administration of a government institution?

  • could include plans regarding down-sizing, program elimination, privatization of existing functions, new programs, re-organizations, funding, relocations, technological substitution, etc.

Does the record involve departmental operations, as opposed to their administration?

Operations do not qualify under paragraph 21(1)(d).

Does the record relate to deployment of staff or programs within the department?

Does the record consist of budgetary plans for personnel or areas within the department?

What is the status of the plans?

  • when is it expected the plans will be implemented?

Has any portion of the plan been implemented?

  • to what extent has the entire plan been implemented?

Have the portions which have not been implemented been made public internally?

Have the plans received approval of the government institution or the Treasury Board?

  • when is such approval being sought or expected?
  • has any notice been given to employees?
  • has notice of future phases been given to employees?
  • if the plans have not been implemented, how long ago were they developed?

Is there an intention to implement them at any point in time?

If the plans have been discarded or not implemented, why is it necessary to protect them from disclosure?

  • note Treasury Board Guidelines suggest discretion should be exercised in favour of disclosure
  • see factors relevant to exercise of discretion in paragraphs 21(1)(c) and (d) below
   

Section 21 - Advice/Recommendations

Paragraph -- 21(c) & (d)
Statement of Test to be Met
Discretionary Exemption
Relevant Questions Departmental Response Assessment

Has the head of the government institution considered disclosing the records?

What was the basis for deciding not to disclose the records?

Relevant factors include:

  • age of the record
  • status of the negotiations or plans
  • has the item been negotiated or agreed upon?
  • if so, what is the continuing need for protection of the information?

If plans are about to be implemented, how would disclosure prejudice implementation?

If not, would disclosure be consistent with providing notice to people affected of changes in personnel or management?

Public knowledge of the negotiations or plans:

  • have the negotiations or plans been discussed publicly?
  • would public disclosure confirm negotiating position to the government's detriment?
  • have the negotiations been conducted in public?
  • have the plans been revealed in budgetary documents or other legislative instruments, in Speeches to the Throne, in parliamentary committees?

If the personnel or administration plans have not yet been implemented, have there been negotiations concluded with unions under which the reorganizations will take place?

  • if so, how would implementation of the plans be impaired by disclosure
  • if the negotiations referred to in the record are dormant, what is the possibility of their revival
  • how would revival impact on the issue described in the record

If a revival is unlikely, what is the continuing need to protect the information from disclosure?

Does the negotiation involve a sensitive issue?

Describe the issue?

Why is it sensitive?

Are the negotiations at a sensitive juncture?

  • describe why negotiations would be impaired by disclosure.

Could disclosure compromise the results achieved in the negotiations?

   

Section 21 - Advice/Recommendations

Section -- 21(2)
Subsection (1) does not apply in respect of a record that contains

a) An account of, or statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person
Statement of Test to be Met
  • There must be a decision
  • Draft, preparatory notes not included in paragraph 21(2)(a)
  • Briefing notes, advice may become incorporated in the decision
Relevant Questions Departmental Response Assessment

Does the record set out a decision that has been made concerning the person affected?

Does the record consist of a draft or preparatory notes for the decision?

Does the record set out advice to the decision maker prior to the decision being taken?

If so, has the decision maker expressed an agreement with the advice or other disposition of the matter on the record?

  • in another record
   

Section 21 - Advice/Recommendations

Section -- 21(2)(a)
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
Relevant Questions Departmental Response Assessment

Are there other memoranda or records which track the decision made by the government institution ?

  • if so, ask to see them

Has the official responsible for making the decision incorporated his decision in any of these memos or records?

  • if so, the memos or records become an account of the decision or reasons and should be disclosed

Do the remarks or comments made by the official on the memoranda or records consist of further instructions or comments requiring further information or analysis?

  • if so, ask to see these
  • if so, assess whether the notes and response are preparatory to a decision
   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Is the decision made in the exercise of a discretionary power of adjudicative function?
Relevant Questions Departmental Response Assessment

What was the subject matter or nature of the decision?

Was the decision made pursuant to a statutory authorization or regulation?

  • ask to see the provision or regulation

Does the statutory provision create a mandatory entitlement or obligation concerning the person about whom the decision was made?

Was the decision made through calculation of a mandatory formula or by application of mandatory, factual criteria?

  • If so, section 21 (2)(a) may not apply?

Did the criteria contain any discretion or decision making power on the part of the government official who made the decision?

Did the decision involve an application by a person for relief or exemption from statutory obligations?

Did the decision involve a request by a person for special consideration in any way?

Did the decision involve an internal appeal process or a reconsideration of prior decision?

  • if so, it is likely a discretionary power

Did the decision involve an assessment or choice between competing interests by the decision maker

  • i.e., tax appeals
  • human rights investigation decisions
  • airline/pilot licensing decisions
  • permit, licenses or applications that were contested
    • if so, these are likely adjudicated decisions
    • does the decision involve an administrative function

What is this function?

Does the function involve the conferral of a benefit?

  • confirmation of an entitlement
  • confirmation of an obligation
  • granting of permission
  • granting of licenses, permits
  • granting of an exemption or relief from an obligation

If so, decision likely involves the exercise of a discretionary power.

   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Does the decision affect the rights of a person?
Relevant Questions Departmental Response Assessment

Does the decision concern an individual, corporation, or other entity?

Does the decision require the person to do anything or refrain from doing anything?

Does the decision confer a benefit on the person?

Does the decision confirm the entitlement of the person to a benefit or to certain status under the legislation?

Does the decision confirm the obligation of a person to do something under a statute or regulation?

If so, decision likely affects the rights of a person.

If the decision does not directly concern a person, does it have a direct impact or economic effect on the person?

Is the person one of a group of individuals or entities that is affected by the decision?

  • if so, decision likely affects the rights of the person

Was the decision made after a hearing or inquiry?

  • if so, did the person participate at the hearing or inquiry?

Was the person given an opportunity to make representations or submissions at the hearing or inquiry?

  • if so, decision likely affects the rights of the person

Is the decision legally binding on the person?

Is the decision subject to appeal or review by a tribunal or court?

Is the decision determinative of an entitlement, obligation, request for relief?

Does the decision permit or prohibit an activity in a regulated setting?

If so, decision likely affects the rights of a person.

   

Section 21 - Advice/Recommendations

Statement of Test to be Met
Examples of decisions under paragraph 21(2)(a) would include:
Relevant Questions Departmental Response Assessment

Decision by independent tribunals, commissions and courts.

Disciplinary decisions, grievance decisions, arbitration and review from those decisions.

Decisions awarding or refusing funding, grants or loans.

Decisions conferring or refusing, permits, licenses, exemptions from regulatory requirements.

Decisions determining obligations or entitlements, under tax, pension, unemployment insurance, pension or superannuation laws.

Decisions determining obligations or entitlement under labour laws - vacation pay, termination and severance pay, sick leave, unjust dismissals.

Decisions involving human rights complaints.

Decisions involving harassment complaints.

Internal review and appeals from these decisions.

Decisions determining qualifications or competence of employees or participants in regulated industries (i.e., airline pilots, government conducted ship master examinations, etc.)

  • appeals from these decisions
     

Section 21 - Advice/Recommendations

Statement of Test to be Met

Recommendations will fall under section 21(2)(a)

  • if they follow a hearing or inquiry
  • if they could require reconsideration by the decision maker
Relevant Questions Departmental Response Assessment

Did the decision involve a recommendation?

Does the recommendation involve changing or confirming a prior decision?

What was the nature of the prior decision?

Did the prior decision affect the rights of persons?

Did the recommendation follow a hearing or inquiry?

Was the person given an opportunity to make submissions or representations in the course of the hearing or inquiry?

Was there an obligation on the body making the recommendation to consider these submissions and representations?

Were other submissions and representations received / considered

  • from the government institutions
  • from other interested parties

Is the process leading to the recommendation required by statute or regulation?

If so, recommendation is likely a decision within paragraph 21(2)(a).

   

Section 21 - Advice/Recommendations

Section -- 21(2)
Subsection (1) does not apply in respect of a record that contains:

(b)a report prepared by a consultant or advisor who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff or a minister of the Crown.
Statement of Test to be Met
Consultant or advisor not employed by the government or a Minister
Relevant Questions Departmental Response Assessment

When was the record prepared?

Who prepared it?

Was this person employed by the government or on a Minister's staff at the time?

Are they on the government payroll?

Does the government make source deductions for income tax, unemployment insurance and CPP for this individual?

Is the individual paid by salary?

Does the individual submit invoices for services connected with preparing with the report?

Ask to see the invoices.

Does the individual get compensated on a per service or per contract basis?

Is the individual retained under a contract from the government?

  • ask to see the contract.
  • does the contract involve preparation of this report

What is the purpose of the report?

Is the purpose of the report to inform the government institution about the subject matter?

  • to analyze it
  • to assess it

Is the purpose of the report to advise the government on the subject matter of a report?

   

Section 21 - Advice/Recommendations

Statement of Test to be Met
includes unpaid advisors or consultants
Relevant Questions Departmental Response Assessment

Was the author of the report paid?

If not, was the author of the report acting in the capacity of an advisor to the government institution or Minister?

Was there explicit or implicit acceptance of this relationship by the government institution or the Minister concerned?

  • if not, paragraph 21(2)(b) likely does not apply

Did the Minister or government institution take the report into consideration after it was submitted?

Did the government institution act on any of the matters set out in the report?

If so, author of the report likely had the status of an advisor to the institution or Minister.

   

Section 21 - Advice/Recommendations

Endnotes

1. Order 94 (Appeal No. 890137, dated September 22, 1989) (Per Linden).

2. Order 118 (Appeal Number 890172) dated November 15, 1989 at 4 (per Linden).

3. While this term is not defined in the Act nor in the Federal Court jurisprudence, the Québec case law can be useful in determining the meaning of this term. In Québec, the Commission d'accès relied on the dictionary meaning and defined the term as "l'action de conseiller avec insistance": S... c. Ministère du Revenue de Québec, (1984-86) 1 C.A.I. 35; La Voix de l'Est (1982) Inc. c. Ville de Granby, (1984-86) 1 C.A.I. 54; Talbot c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 104. It can be said therefore that an advice can be distinguished from a recommendation from its firmness.

4. Ontario Order 172 (Appeal Number 890059) dated June 4, 1990 (Per McCamus).

5. Dufour c. Commission scolaire Nouvelle Beauce, (1984-86) 1 C.A.I. 25; Morel c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 67; Cie d'assurances du Québec c. Ville de Chicoutimi, [1987] C.A.I. 84.

6. Ouellet c. Fonds pour la formation des chercheurs et l'aide à la recherche, [1986] C.A.I. 38.

7. [1987] C.A.I. 24, 31.

8. Boudrias, Fréchette, Gélinas et associés c. Régie de l'électricité et du gaz, (1984-86) 1 C.A.I. 331.

9. Cie d'assurances du Québec c. Ville de Chicoutimi, [1987] C.A.I. 84.

10. Huard c. Régie de l'assurance automobile du Québec, [1989] CAI 43, 47. See also Lebel c. Commission scolaire de Manicouagan, [1989] CAI 358, 361.

11. Wilson c. Commission scolaire régionale protestante South Shore, (1984-86) 1 C.A.I. 594. See also Morel c. Office du crédit agricole du Québec, (1984-86) 1 C.A.I. 67.

12. Cooperative de commerce des Milles-îles c. Société des alcools du Québec, [1987] C.A.I. 454; Giroux c. Commission des écoles catholiques de Verdun, [1987] C.A.I. 394.

13 Order PO-1726 by Tom Mitchinson (5 November 1999) at page 3).

14. S... c. Ministère du Revenu du Québec (1984-86) 1 C.A.I. 35. See also Rainville c. Commission administrative des régimes de retraite et d'assurances (C.A.R.R.A.). (1984-86) 1 C.A.I. 437.; Rousseau-Martin c. Régie des rentes du Québec [1987] C.A.I. 331; Cinq-Mars c. Commission administrative des régimes de retraite et d'assurances, [1986] C.A.I. 187.

15. S... c. Ministère du Revenu du Québec, (1984-86) 1 C.A.I. 35; Pépin c. Commission administrative des régimes de retraite et d'assurances (C.A.R.R.A.), (1984-86) 1 C.A.I. 43; Rousseau-Martin c. Régie des rentes du Québec, [1987] C.A.I. 331; Dufour c. Centre hospitalier Robert-Giffard, [1987] C.A.I. 574.

16. Robitaille c. Foyer Notre-Dame-de Lourdes, [1986] C.A.I. 152. See also Dancause c. Ministère des transports du Québec, [1986] C.A.I. 85

17. Houde c. Corp. mun. de la paroisse de Ste-Anne de la Pointe-aux-Pères, [1987] C.A.I. 214.

18. [1991] CAI 311, 321-22.

19. These terms are defined in the Shorter Oxford English Dictionary as follows:

Consultation:"1. The action of consulting or taking counsel together; deliberation, conference. 2. A conference in which the parties, e.g. lawyers, medical practitioners consult and deliberate. 3. The action of consulting (a book)."

Deliberation:"1. The action of deliberating (to deliberate: to weight in mind; to consider carefully with a view to a decision; to think over); careful consideration with a view to a decision. 2. The consideration and discussion of the reasons for and against a measure by a number of councillors. 3. A resolution or determination."

The Shorter Oxford English Dictionary also defined 'consult' to include:

"1. To take counsel together, to deliberate, confer. 2. To confer about, deliberate upon, consider... 5. To ask advice of, seek counsel from; to have recourse to for instruction or professional advice."

20. Leblanc c. Centre hospitalier de Chandler, [1987] C.A.I. 181.

21. But see para 21(2)(b) below.