Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49
The Auditor General of Canada Appellant
v.
The Minister of Energy, Mines
and Resources, the Minister of Finance,
the Deputy Minister of Energy, Mines
and Resources, and the Deputy Minister
of Finance Respondents
indexed as: canada (auditor general) v. canada (minister of energy, mines and resources)
File No.: 20304.
1988: October 7; 1989: August 10.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.
on appeal from the federal court of appeal
Crown -- Auditor General -- Access to information -- Auditor General seeking to obtain access to Crown corporation's records and to Cabinet documents relating to the purchase of an oil company -- Whether the Auditor General has a judicially-enforceable right of access to information -- Whether reporting remedy only remedy available to Auditor General when his right of access to information denied -- Auditor General Act, S.C. 1976-77, c. 34, ss. 7(1)(b), 13(1).
Constitutional law -- Role of the courts -- Judicial review of federal auditing process -- Dispute between Parliament and Auditor General -- Auditor General denied access to Crown corporation's records and to Cabinet documents relating to the purchase of an oil company -- Whether the Auditor General has a judicially-enforceable right of access to information -- Whether courts proper remedial forum -- Whether reporting remedy only remedy available to Auditor General when his right of access to information is denied -- Auditor General Act, S.C. 1976-77, c. 34, ss. 7(1)(b), 13(1).
In 1981 Petro-Canada, a Crown corporation and an agent of Her Majesty, acquired Petrofina for $ 1.7 billion. The ultimate funding for the takeover came from Parliament in the form of Vote 5c, Schedule to Appropriation Act No. 4, 1980-81. Vote 5c created a non-budgetary trust account from which payments were made to Petro-Canada for the purchase of Petrofina. The Auditor General audited the trust account and, pursuant to s. 7(2)(d) of the Auditor General Act ("the Act"), sought to ascertain whether due regard to economy had been demonstrated and value for money achieved in using $ 1.7 billion of public funds to acquire Petrofina. In its 1982 and 1983 Reports, the Auditor General indicated that his request for certain documentation relevant to an evaluation of the transaction had been denied by the Department of Energy, Mines and Resources and by senior officials of Petro-Canada. The Auditor General was of the view that he was entitled to that information by virtue of s. 13(1) of the Act which provides that "the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his responsibilities". The Auditor General's attempts, under s. 14(1) and (2) of the Act, to obtain the missing information from Petro-Canada's auditors and from Petro-Canada were unsuccessful and the Governor in Council declined to exercise its s. 14(3) power to assist the Auditor General by ordering Petro-Canada to provide the information. The Auditor General then sought to obtain the information through the judicial process. He was successful in the Federal Court, Trial Division but that judgment was reversed by the Federal Court of Appeal. This appeal is to determine whether, under s. 13(1) of the Act, the Auditor General has a judicially-enforceable right of access to information including the records of Petro-Canada and Cabinet documents which relate to the acquisition of Petrofina by Petro-Canada. No issue affecting the Canadian Charter of Rights and Freedoms arose in this case.
Held: The appeal should be dismissed.
The Auditor General has no recourse to the courts in the event of the refusal by Parliament, responsible Ministers, and the Governor in Council to make available to him all of the documentation he may seek in what he regards as the discharge of his responsibilities in auditing the accounts of Canada. It is reasonable to interpret s. 7(1)(b) of the Act as the Auditor General's final remedy for claimed denials of s. 13(1) entitlements. Section 7(1)(b) provides that "The Auditor General shall report annually to the Houses of Commons . . . on whether, in carrying on the work of his office, he received all the information . . . required." The linkage between s. 13(1) (the asserted right) and s. 7(1)(b) (the statutory remedy), and the extent to which the reporting remedy is part of a comprehensive remedial code, indicate that the remedy was meant to be exclusive. The Auditor General can report on difficulties in obtaining information at any stage, even if other remedies are simultaneously being pursued, and the House of Commons can act at any time. However, once the ss. 13 and 14 remedies have been exhausted in relation to particular information, the only remedy left to the Auditor General is the s. 7(1)(b) reporting remedy.
Not only is the text of the Act conducive to such an interpretation, but also, in the circumstances, a political remedy of this nature is an adequate alternative remedy. The Auditor General is acting on Parliament's behalf carrying out a quintessentially Parliamentary function -- namely, the oversight of executive spending pursuant to Parliamentary appropriations. Where the exercise of this auditing function involves the Auditor General in a dispute with the Crown, this is in essence a dispute between the legislative and executive branches of the federal government. Section 7(1)(b) is the means by which Parliament itself retains control over the position it wishes to take in such a dispute. Therefore, where Parliament has indicated in the Act that it wishes its own servant to report to it on denials of access to information needed to carry out his functions on Parliament's behalf, it would not be appropriate for this Court to consider granting remedies for such denials, if they, in fact, exist. For this Court to order access to information for the Auditor General would be, in effect, to overrule a decision of the House of Commons not to act in his matter and to disturb the balance of constitutional powers between the executive and legislative branches of government. The fact that the executive, through its control of a House of Commons majority may in practice dictate the position the House of Commons takes on the scope of Parliament's auditing function is not constitutionally cognizable by the judiciary. The grundnorm with which the courts must work in this context is that of the sovereignty of Parliament. The ministers of the Crown hold office with the grace of the House of Commons and any position taken by the majority must be taken to reflect the sovereign will of Parliament.
The adequacy of the s. 7(1)(b) remedy must not be underestimated. A report by the Auditor General to the House of Commons that the government of the day has refused to provide information brings the matter to public attention. It is open to the Opposition in Parliament to make the issue part of the public debate. The Auditor General's complaint that the government has not been willing to provide all the information requested may, as a result, affect the public's assessment of the government's performance. Thus, the s. 7(1)(b) remedy has an important role to play in strengthening Parliament's control over the executive with respect to financial matters.
Cases Cited
Considered: Temple v. Bulmer, [1943] S.C.R. 265; British Railways Board v. Pickin, [1974] A.C. 765; Terrasses Zarolega Inc. v. Régie des installations olympiques, [1981] 1 S.C.R. 94; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; distinguished: British Columbia Development Corp. v. Friedmann, Ombudsman, [1984] 2 S.C.R. 447; referred to: City of Lethbridge v. Canadian Western Natural Gas, Light, Heat and Power Co., [1923] S.C.R. 652; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; P.P.G. Industries Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739.
Statutes and Regulations Cited
Access to Information Act, S.C. 1980-81-82-83, c. 111 (Schedule I).
Act to amend the Financial Administration Act in relation to Crown corporation and to amend other Acts in consequence thereof, S.C. 1984, c. 31, s. 14 (Schedule II, Item 40(9), (14)).
Appropriation Act No. 4, 1980-81, S.C. 1980-81-82-83, c. 51, Schedule, Vote 5c.
Auditor General Act, S.C. 1976-77, c. 34, ss. 3, 5, 6 [rep. & subs. 1980-81-82-83, c. 170, s. 25], 7, 8, 13, 14.
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3 [ad. 1980-81-82-83, c. 111, s. 4 (Schedule III)].
Canadian Charter of Rights and Freedoms, ss. 1, 33.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(6).
Financial Administration Act, R.S.C., 1985, c. F-11.
Petro-Canada Act, S.C. 1974-75-76, c. 61, ss. 14, 17, 26.
Privacy Act, S.C. 1980-81-82-83, c. 111 (Schedule II).
Authors Cited
Canada. Auditor General. Report of the Auditor General of Canada to the House of Commons. Ottawa: Minister of Supply and Services Canada, 1982.
Canada. Auditor General. Report of the Auditor General of Canada to the House of Commons. Ottawa: Minister of Supply and Services Canada, 1983.
Cane, Peter. An Introduction to Administrative Law. Oxford: Clarendon Press, 1986.
de Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons, 1980.
APPEAL from a judgment of the Federal Court of Appeal, [1987] 1 F.C. 406, 35 D.L.R. (4th) 693, 73 N.R. 241, setting aside a judgment of the Trial Division, [1985] 1 F.C. 719, 23 D.L.R. (4th) 210. Appeal dismissed.
Gordon F. Henderson, Q.C., Emilio Binavince and Martin Mason, for the appellant.
W. I. C. Binnie, Q.C., and Graham R. Garton, Q.C., for the respondents.
//The Chief Justice//
The judgment of the Court was delivered by
THE CHIEF JUSTICE -- This appeal raises an issue as to the proper role of the courts and their constitutional relationship to the other branches of government. The appellant in the proceedings is the Auditor General of Canada, appointed pursuant to s. 3 of the Auditor General Act, S.C. 1976-77, c. 34. As such he is the auditor of the accounts of Canada and is required to make such examinations and inquiries as he considers necessary to enable him to report annually to the House of Commons, calling attention, inter alia, to any cases in which he has observed that money has been expended without due regard to economy or efficiency. The respondents in the proceedings are the Minister of Energy, Mines and Resources, and his Deputy Minister, and the Minister of Finance, and his Deputy Minister. The issue before the Court is whether the Auditor General has a judicially-enforceable right of access to information including the records of Petro-Canada and Cabinet documents which relate to the acquisition of Petrofina Canada Inc. by Petro-Canada.
Petro-Canada is a Crown corporation incorporated under the Petro-Canada Act, S.C. 1974-75-76, c. 61, and an agent of Her Majesty. Its accounts are regularly audited not by the appellant, but by external auditors, Peat Marwick Mitchell. The accounts of Petro-Canada are not consolidated with the accounts of Canada. Section 17 of the Petro-Canada Act provides specifically that its officer, agents and employees shall be deemed not to be employed in the Public Service of Canada.
Over a period of several years, the appellant sought, without success, to obtain access to Petro-Canada and Cabinet documents relating to the purchase by Petro-Canada of shares and property of Petrofina Canada Inc. in 1981. Having failed to obtain the documents he sought through the political process, the appellant decided to invoke the powers of the courts and obtain the documents through the judicial process. He was successful in the Trial Division of the Federal Court of Canada, [1985] 1 F.C. 719, but that judgment was reversed in the Federal Court of Appeal, [1987] 1 F.C. 406, and the matter is now before this Court by leave.
Associate Chief Justice Jerome in the Trial Division stated the issue in these terms (at p. 724):
The issue in this case, in the briefest possible terms, is whether the right of access to information, given to the Auditor General of Canada in section 13 of the Auditor General Act, S.C. 1976-77, c. 34, takes precedence over or must defer to the convention of confidence of the Queen's Privy Council for Canada.
Hugessen J. in the Federal Court of Appeal saw another issue underlying the question stated by the trial judge, and which required to be answered first, namely (at p. 427):
It is to know the nature and extent of the responsibilities of the Auditor General. More particularly, it is to know whether the Auditor General's duty to make examinations and inquiries and to report to the House of Commons includes the responsibility to follow the use which has been made of public funds beyond their immediate or first recipient through to their ultimate beneficiary in order to determine whether the Canadian people have had value for their money.
Before broaching that subject, an even more fundamental question must be answered, namely, whether the issue raised by the Auditor General is, in fact, justiciable. What is really at issue in this case is the appropriateness of the Court assuming the role of arbiter in resolving a dispute between Parliament and a parliamentary servant, albeit of high rank. Can, or should, the courts give the Auditor General access to (and therefore disclosure of) documents, including Cabinet documents, which the Governor in Council has denied him? Are the Auditor General's demands ones which ought properly to be determined by the courts or by the House of Commons? In other words, are the claims which the Auditor General seeks to invoke legally enforceable?
Only after those questions have been answered does one reach the issue as to the nature of the Auditor General's role in the Parliamentary system of checks and balances and, more precisely, the extent to which an Auditor General may evaluate the pre-legislative decision-making process to see if value for money for post-appropriation expenditures has been obtained. The Auditor General here is claiming access, inter alia, to Cabinet documents which were generated prior to Parliament's appropriation of the funds for the Petrofina acquisition. He claims that this information is relevant to an evaluation of the transactions between the two oil companies (i.e., one step beyond the two transactions between the Minister of Energy, Mines and Resources and Petro-Canada) which is a legitimate part of auditing the Canadian Ownership Account. The respondents claim that the Auditor General's claim is really a thinly-veiled assertion that he may "audit" whether Cabinet decisions and Parliament's own appropriation were fiscally wise, a position incompatible with his role as a servant of Parliament, not its overseer; the Auditor General's claim also amounts to a claim that an auditor general may audit the accounts of a Crown corporation, even though that corporation already has its own auditor.
Let me make it clear at the outset that this is not a Charter case. Although I will have a word or two to say later about Charter adjudication, no issue affecting the Canadian Charter of Rights and Freedoms arises.
I. Statutory Provisions
Auditor General Act, S.C. 1976-77, c. 34
AUDITOR GENERAL OF CANADA
3. (1) The Governor in Council shall, by commission under the Great Seal, appoint a qualified auditor to be the officer called the Auditor General of Canada to hold office during good behaviour for a term of ten years, but the Auditor General may be removed by the Governor in Council on address of the Senate and House of Commons.
DUTIES
5. The Auditor General is the auditor of the accounts of Canada, including those relating to the Consolidated Revenue Fund and as such shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act.
6. The Auditor General shall examine the several financial statements required by section 55 of the Financial Administration Act to be included in the Public Accounts, and any other statement that the President of the Treasury Board or the Minister of Finance may present for audit and shall express his opinion as to whether they present fairly information in accordance with stated accounting policies of the federal government and on a basis consistent with that of the preceding year together with any reservations he may have.
7. (1) The Auditor General shall report annually to the House of Commons
(a) on the work of his office; and
(b) on whether, in carrying on the work of his office, he received all the information and explanations he required.
(2) Each report of the Auditor General under subsection (1) shall call attention to anything that he considers to be of significance and of a nature that should be brought to the attention of the House of Commons, including any cases in which he has observed that
(a) accounts have not been faithfully and properly maintained or public money has not been fully accounted for or paid, where so required by law, into the Consolidated Revenue Fund;
(b) essential records have not been maintained or the rules and procedures applied have been insufficient to safeguard and control public property, to secure an effective check on the assessment, collection and proper allocation of the revenue and to ensure that expenditures have been made only as authorized;
(c) money has been expended other than for purposes for which it was appropriated by Parliament;
(d) money has been expended without due regard to economy or efficiency; or
(e) satisfactory procedures have not been established to measure and report the effectiveness of programs, where such procedures could appropriately and reasonably be implemented.
(3) Each annual report by the Auditor General to the House of Commons shall be submitted to the Speaker of the House of Commons on or before the 31st day of December in the year to which the report relates and the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receipt thereof by him or, if that House is not then sitting, on the first day next thereafter that the House of Commons is sitting.
8. (1) The Auditor General may make a special report to the House of Commons on any matter of pressing importance or urgency that, in his opinion, should not be deferred until the presentation of his annual report.
(2) Each special report of the Auditor General to the House of Commons made under subsection (1) or 20(2) shall be submitted to the Speaker of the House of Commons and shall be laid before the House of Commons by the Speaker of the House of Commons forthwith after receipt thereof by him, or if that House is not then sitting, on the first day next thereafter that the House of Commons is sitting.
ACCESS TO INFORMATION
13. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his responsibilities and he is also entitled to require and receive from members of the public service of Canada such information, reports and explanations as he deems necessary for that purpose.
(2) In order to carry out his duties more effectively, the Auditor General may station in any department any person employed in his office, and the department shall provide the necessary office accommodation for any person so stationed.
(3) The Auditor General shall require every person employed in his office who is to examine the accounts of a department or of a Crown corporation pursuant to this Act to comply with any security requirements applicable to, and to take any oath of secrecy required to be taken by, persons employed in that department or Crown corporation.
(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.
14. (1) Notwithstanding subsections (2) and (3), in order to fulfil his responsibilities as the auditor of the accounts of Canada, the Auditor General may rely on the report of the duly appointed auditor of a Crown corporation or of any subsidiary of a Crown corporation.
(2) The Auditor General may request a Crown corporation to obtain and furnish to him such information and explanations from its present or former directors, officers, employees, agents and auditors or those of any of its subsidiaries as are, in his opinion, necessary to enable him to fulfil his responsibilities as the auditor of the accounts of Canada.
(3) If, in the opinion of the Auditor General, a Crown corporation, in response to a request made under subsection (2), fails to provide any or sufficient information or explanations, he may so advise the Governor in Council, who may thereupon direct the officers of the corporation to furnish the Auditor General with such information and explanations and to give him access to those records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries access to which is, in the opinion of the Auditor General, necessary for him to fulfil his responsibilities as the auditor of the accounts of Canada.
Canada Evidence Act, R.S.C. 1970, c. E-10
(as amended by S.C. 1980-81-82-83, c. 111, s. 4 (Schedule III))
36.3 (1) Where a Minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
(2) For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in
(a) a memorandum the purpose of which is to present proposals or recommendations to Council;
(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
(c) an agendum of Council or a record recording deliberations or decisions of Council;
(d) a record used for or reflecting communications or discussions between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
(f) draft legislation.
(3) For the purposes of subsection (2), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.
(4) Subsection (1) does not apply in respect of
(a) a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or
(b) a discussion paper described in paragraph (2)(b)
(i) if the decisions to which the discussion paper relates have been made public, or
(ii) where the decisions have not been made public, if four years have passed since the decisions were made.
Petro-Canada Act, S.C. 1974-75-76, c. 61
14. (1) The Corporation is, for all purposes of this Act, an agent of Her Majesty, and its powers under this Act may be exercised only as an agent of Her Majesty.
(Later repealed and substituted by S.C. 1984, c. 31, s. 14 (Schedule II, Item 40(9)):
14. (1) The Corporation is, for all purposes of this Act, an agent of Her Majesty in right of Canada.
26. (1) Subject to subsection (2), the accounts of the Corporation shall be audited each year by an auditor appointed by the Governor in Council.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10
28. . . .
(6) Notwithstanding subsection (1), no proceeding shall be taken thereunder in respect of a decision or order of the Governor in Council, the Treasury Board, a superior court or the Pension Appeals Board or in respect of a proceeding for a service offence under the National Defence Act.
II. The Facts
From February 2, 1981, to May 12, 1981, Petro-Canada acquired ownership of Petrofina Canada Inc. through a series of transactions which are set out in some detail in the judgment at trial of Jerome A.C.J., supra, at pp. 726-32, and succinctly summarized in the dissenting judgment on appeal of Hugessen J., supra, at pp. 427-29. The share capital of Petro-Canada is held in trust for the Crown by the Minister of Energy, Mines and Resources. Petro-Canada's capital budget must be approved by the Governor in Council.
Negotiations with Petrofina S.A., the Belgian parent company of Petrofina Canada Inc., began in August 1980, and culminated in Petrofina S.A.'s agreeing on February 2, 1981, to sell Petrofina Canada Inc. to Petro-Canada. On that same day, the Governor in Council approved a supplementary capital budget "permitting Petro-Canada to undertake or commit to share purchase investments to an amount of $1,500,000,000 including the undertaking of external financing commitments for that amount as required" (Order-in-Council P.C. 1981-259). This agreement was announced publicly on the following day, February 3, 1981. The ultimate funding for the takeover came from Parliament some six weeks later, on March 21, 1981, in the form of Vote 5c, Schedule to Appropriation Act No. 4, 1980-81, S.C. 1980-81-82-83, c. 51:
5c Energy -- Operating expenditures including payments, in the current and subsequent fiscal years, in accordance with such terms and conditions as may be prescribed by the Governor in Council on the recommendation of the Minister and the Minister of Finance, of such amounts as are from time to time required for investment in shares, debentures, bonds or other evidences of indebtedness of Petro-Canada in order to increase Canadian public ownership of the oil and gas industry in Canada through the share purchase of and property acquisition from Petrofina Canada Inc., by Petro-Canada, (not to exceed 1.7 billion dollars which includes the interim financing costs) for which purpose there shall be established in the Accounts of Canada a non-budgetary trust account to be known as the Canadian Ownership Account:
a)to which shall be credited all amounts received as a consequence of a Canadian Ownership special charge for the purpose of increasing the Canadian Public Ownership of the oil and gas industry in Canada; and
b)to which shall be charged any investment made hereunder for the share purchase of and property acquisition from Petrofina Canada Inc.
and to further provide that no investment shall be made pursuant hereto in excess of the amount of the balance to the credit of the account, and to provide a further amount of $ 5,382,000.
Vote 5c clearly stipulated that the funds voted were for investment in shares, debentures, bonds, and other evidences of indebtedness of Petro-Canada, although it was contemplated that the funding provided to Petro-Canada would be used solely for the purchase of Petrofina Canada Inc. The earlier capital budget approval in Order-in-Council P.C. 1981-259 made no mention either of a specific target company or of the source from which Petro-Canada would acquire its authorized increased capital. Following Vote 5c, Petro-Canada, through a subsidiary (Petro-Canada Exploration Inc.), made an offer on April 18, 1981, of $120 per share to Petrofina Canada Inc. shareholders; the terms and amount of this offer had been previously settled by the agreement between Petro-Canada and Petrofina S.A., which had preceded Parliament's Vote 5c. On May 11, 1981, Petrofina Canada Inc. shareholders accepted the Petro-Canada offer.
Vote 5c created a non-budgetary trust account known as the Canadian Ownership Account (COA) from which payments would be made to Petro-Canada for the acquisition of Petrofina Canada Inc. The proceeds from a special charge on Canadian petroleum consumption were paid into the COA to cover the cost of the takeover. It is the COA, as an account of Canada within the meaning of s. 5 of the Auditor General Act, that the Auditor General of Canada began to audit in the summer of 1981.
As part of that audit of the COA, the Auditor General sought to determine whether "value for money" had been achieved in the flow of purchase funds from Petro-Canada to the shareholders of Petrofina Canada Inc. He sought to ascertain whether due regard to economy had been demonstrated and value for money achieved in the $1.7 billion acquisition of Petrofina Canada Inc. This kind of audit was perceived by him to be part of the Auditor General's duty to determine under s. 7(2)(d) of the Auditor General Act whether "money had been expended without due regard to economy or efficiency". In the Report of the Auditor General of Canada to the House of Commons, Fiscal Year Ended 31 March 1982, para. 15.2, at pp. 516-17, the Auditor General reported:
Other Audit Observations
Canadian Ownership Account Transactions. We audited transactions in the Canadian Ownership Account (COA), which forms part of the Public Accounts of Canada. The following table summarizes the financial transactions in the COA for the period 1 July 1981 to 31 March 1982:
Receipts
Petroleum and Petroleum Products $ 567.7 million
Gas and Gas Liquids 218.7
786.4
Payments
To Petro-Canada regarding Petrofina
Canada Inc. acquisition 710.9
$ 75.5 million
═══════
Weakness in Managing Public Funds. We would have expected that the parties processing and authorizing such an expenditure would have available an evaluation of the entity to be purchased, including:
- its value in relation to price;
- alternate strategies considered in acquiring the entity;
-the implications of such a purchase to the effective purchaser (the Government of Canada); and
- the means of financing the purchase.
Also, one would expect a formal plan for, or a report on, a post-evaluation of the assets acquired to ascertain that value for money was received.
To fulfil our responsibility as auditor of the accounts of Canada, we requested from the Department of Energy, Mines and Resources and responsible central agencies documentation demonstrating that due regard was given to economy in the acquisition process and that reasonable value was in fact received for money expended. As well, we sought explanations of the events leading up to the loan transactions, including an examination of the role of the Department of Energy, Mines and Resources, Petro-Canada and others.
Senior management in the Department of Energy, Mines and Resources informed us that, because Petro-Canada was the vehicle used to identify, evaluate, negotiate and recommend the acquisition of Petrofina Canada Inc., the Department was not responsible to ensure that value for money was or had been achieved. It had not carried out any such analysis and had no documentation available for audit. In their view, Petro-Canada had made the acquisition and was thus responsible for doing any necessary analysis and evaluation. Departmental management viewed any review by the Department as inappropriate second-guessing of a Crown corporation decision. The role of departmental managers consisted only of providing advice to the Minister on the consistency of the proposal with the Canadianization policy. They explained that this was due to the fact that the agent for this transaction was Petro-Canada and, in keeping with their view of the arm's length nature of relations between departments and Crown corporations, departmental management was not asked to advise on the substance of Petro-Canada's analysis.
Although Petro-Canada's available expertise would be valuable in an analysis of this kind of acquisition, exclusive reliance on the corporation could effectively remove any overall accountability for such expenditures of public funds.
Although certain documentation has been provided to us by the Department, we have not received supporting evidence relating to the advice given to ministers on such considerations as the value of the assets acquired in relation to price or alternative acquisition and financing mechanisms.
In the absence of such information, we are unable to ascertain that due regard to economy has been demonstrated or achieved in respect of a transaction that has advanced $711 million out of an eventual $1.7 billion to a Crown corporation.
In the subsequent year of 1983, the Auditor General again reported that certain documentation had been sought and denied, this time from senior officials of Petro-Canada; Report of the Auditor General of Canada to the House of Commons, Fiscal Year Ended 31 March 1983, para. 9.196, at p. 329. Consequently, the Auditor General reported to the House of Commons that, as in 1982, this lack of information again precluded a s. 7(2)(d) evaluation:
9.196 During the past year, we communicated with senior officials of Petro-Canada, requesting evidence that due regard to economy had been exercised in using $1.7 billion of public funds to acquire Petrofina Canada Inc. We also asked whether any post-evaluation of the acquired assets had been undertaken to determine what value had been received. The preparation of pre and post-acquisition evaluations is an accepted practice of prudent decision makers in the private sector. Although we have been informed by a senior official of Petro-Canada that a pre-acquisition commercial evaluation was undertaken, this has not as yet been made available to us. However, there is no indication that the evaluation considered the possible effects on the Government of Canada that would result from the acquisition. Effects on such matters as the balance of payments, foreign exchange, tax revenues and possible future capital requirements, in our view, merited pre-acquisition evaluation. Further, we were informed that a contract was awarded to independent appraisers in the spring of 1983 to conduct an evaluation of assets acquired, including oil and gas properties.
9.197 We have requested of Petro-Canada these evaluations but, as of 15 September 1983, we had not received them. Consequently, we have been unable to ascertain whether due regard to economy has been demonstrated and value for money achieved in the $1.7 billion acquisition of Petrofina Canada Inc.
These statements were made in both the 1982 and 1983 Reports notwithstanding the fact that on the introductory page of each report (p. 1 of each), the Auditor General states: "My staff was provided with all the information and explanations required."
From the written and oral pleadings before this Court, it is evident that the Auditor General took the view that he was entitled to request and receive the information in issue by virtue of s. 13(1) of the Auditor General Act. Having failed to obtain the desired documentation by this means, the Auditor General turned to s. 14 which deals with methods the Auditor General may use to try to obtain information from Crown corporations. Pursuant to s. 14(1), he sought the missing information from Peat Marwick Mitchell, the auditors of Petro-Canada appointed pursuant to s. 26 of the Petro-Canada Act. (I would note that the auditors of Petro-Canada are now appointed pursuant to s. 134(1) of the Financial Administration Act, R.S.C., 1985, c. F-11.)
In a letter of August 4, 1983, Peat Marwick Mitchell replied that such information was not available given that its auditing mandate did not extend as far as the "value for money" audits envisaged by s. 7(2)(d) of the Auditor General Act. The Auditor General next turned to s. 14(2) and on March 9, 1984, wrote to Petro-Canada requesting the information and explanations he had deemed necessary to fulfill his responsibilities as auditor of the accounts of Canada. When, on April 10, 1984, Petro-Canada refused the request, the Auditor General had recourse to s. 14(3), which contemplates that a Crown corporation may refuse to yield to a s. 14(2) request and permits the Governor in Council to order such Crown corporation to provide the information wanted by the Auditor General. On April 16, 1984, the Auditor General asked for the Governor in Council's assistance pursuant to s. 14(3). By Order-in-Council P.C. 1984-2243 of June 26, 1984, the Governor in Council declined to exercise its s. 14(3) power to assist the Auditor General. The Order-in-Council reads:
WHEREAS Petro-Canada publicly announced on February 3, 1981, the offer made for the acquisition of Petrofina Canada Inc.;
WHEREAS Parliament enacted on March 31, 1981, Appropriation Act No. 4, 1980-81, S.C. 1980-81, c. 51, which authorized under Vote 5c (Energy, Mines and Resources), "payments, in the current and subsequent fiscal years, in accordance with such terms and conditions as may be prescribed by the Governor in Council on the recommendation of the Minister and the Minister of Finance, of such amounts as are from time to time required for investment in shares, debentures, bonds or other evidences of indebtedness of Petro-Canada in order to increase Canadian public ownership of the oil and gas industry in Canada through the share purchase of and property acquisition from Petrofina Canada Inc., by Petro-Canada, (not to exceed 1.7 billion dollars which includes the interim financing costs) for which purpose there shall be established in the Accounts of Canada a non-budgetary trust account to be known as the Canadian Ownership Account . . .";
WHEREAS the price to be paid by Petro-Canada for each share of Petrofina Canada Inc., was discussed in Parliament prior to the enactment of Appropriation Act No. 4, 1980-81, S.C. 1980-81, c. 51, by Parliament;
WHEREAS the Auditor General has not alleged that the accounts of the moneys expended for the said purchase and acquisition, as appropriated by Parliament, has not been faithfully and properly maintained, that the moneys have not been fully accounted for or that the moneys were expended other than for the purpose for which they were appropriated by Parliament;
WHEREAS the Auditor General has, pursuant to subsection 14(3) of the Auditor General Act, S.C. 1976-77, c. 34, advised the Governor General in Council on April 16, 1984 that Petro-Canada had failed to provide him with information, in particular evaluations of the said purchase and acquisition, requested by the Auditor General under subsection 14(2) of the said Act;
AND WHEREAS the Governor General in Council has, in the context of the request to Petro-Canada by the Auditor General, had regard to the scope and nature of the authority conferred upon the Auditor General by the Auditor General Act, S.C. 1976-77, c. 34, as auditor of the accounts of Canada, and in particular whether the Auditor General has the authority to audit whether Parliament in authorizing the expenditure of moneys, or Petro-Canada in making the said purchase and acquisition, exercised due regard to economy or efficiency.
THEREFORE, HER EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Minister of Energy, Mines and Resources, hereby declines to direct the officers of Petro-Canada in respect of the matters referred to in subsection 14(3) of the Auditor General Act, S.C. 1976-77, c. 34.
Only the day before this Order-in-Council was passed, on June 25, 1984, the Auditor General had written to the Prime Minister of the day, the Right Hon. Pierre Trudeau. It is perhaps helpful to reproduce that letter in order to highlight the Auditor General's view of the issues at stage:
Dear Prime Minister:
With great regret I must bring to your immediate attention the failure of the Ministers and Deputy Ministers of Finance and Energy, Mines and Resources and of the Chairman of the Board and Chief Executive Officer of Petro-Canada to provide me with free access to information pursuant to Section 13(1) of the Auditor General Act.
In my 1982 and 1983 Reports to the House of Commons I reported on the lack of evidence that due regard for economy had been exercised in using $1.7 billion in public funds from the Canadian Ownership Account to acquire Petrofina Canada Inc. My review of the Orders in Council P.C. 1981-259 dated 2 February 1981, P.C. 1981-1235 dated 11 May 1981 and P.C. 1982-971 dated 26 March 1982 indicates that the Ministers of Finance and Energy, Mines and Resources recommended to the Governor General in Council the approval of advancement of funds from the Canadian Ownership Account, established in the accounts of Canada under Energy, Mines and Resources Vote 5c, Appropriation Act No. 4, 1980-81, to purchase shares and property of Petrofina Canada Inc.
After many discussions between my staff and those of the parties involved over a period of two years my patience and efforts to resolve this matter amicably have been exhausted. I have therefore written to the aforementioned persons [the Ministers and Deputy Ministers of Finance and of Energy, Mines and Resources and to the Chairman of the Board and Chief Executive Officer of Petro-Canada] pursuant to Section 13(1) of the Auditor General Act to obtain free access to the following information:
-Copies of any analysis and/or evaluation reports pertaining to the acquisition of Petrofina Canada Inc.
-Copies of any presentation, documents, memoranda received or prepared or considered by Ministers of Finance and Energy, Mines and Resources, their Deputy Ministers, and the Chairman of the Board and Chief Executive Officer of Petro-Canada relating to the acquisition of Petrofina Canada Inc. using funds from the Canadian Ownership Account.
-Copies of any evaluations of the Petrofina Canada Inc. acquisition and of the assets acquired which were undertaken subsequent to the acquisition.
The above information is required by me in order that I may fulfil my responsibilities as auditor of the accounts of Canada particularly with a view to determining whether expenditures from the Canadian Ownership Account were made with due regard for economy and efficiency.
While the information requested deals with the same transaction the responsibilities of the parties are different, and to avoid misunderstanding you should be aware that I also wrote to the Governor in Council on 16 April 1984, pursuant to Section 14(3) of the Auditor General Act, to obtain information denied to me by Petro-Canada. To date I have not received any response to, or acknowledgement of, this letter. Irrespective of what the Governor in Council may decide with regard to Petro-Canada, I must advise you that pursuant to Section 13(1) of the Auditor General Act, I will still require the above specified information from the identified Ministers, Deputy Ministers, and the Chairman of the Board and Chief Executive Officer of Petro-Canada.
Two years of attempting to obtain the required information have culminated in the extraordinary denial of access to information by the aforementioned persons. The Minister of Finance and the Deputy Minister of Finance have stated that they could not provide free access to the required information as they are "Confidences of the Queen's Privy Council for Canada". I am, therefore, writing to you to inform you of my current difficulties in obtaining free access to information pursuant to Section 13(1) of the Auditor General Act and that I consider this information necessary to enable me to fulfil my responsibilities to Parliament as auditor of the accounts of Canada. I intend to continue to seek the information using the powers accorded to me by Parliament under the Auditor General Act.
The letter in reply by the Prime Minister dated June 29, 1984, is equally instructive in revealing the reasoning of Cabinet in denying the Auditor General access to the information he had been seeking under ss. 13(1) and 14:
Dear Mr. Dye:
I read your letter of June 25, 1984 in which you allege that the Minister of Finance and his Deputy Minister, the Minister of Energy, Mines and Resources and his Deputy Minister and the Chairman of the Board of Petro-Canada have failed to provide you with free access to information pursuant to Section 13(1) of the Auditor General Act.
I have also noted your allegation that you received no acknowledgement of your letter of April 16, 1984 to the Governor in Council. For your information, an officer of the Privy Council Office at my request during the week of June 11, 1984 and again during the week of June 18, 1984, phoned the Deputy Auditor General and the Principal of your Research Branch to advise them that your letter of April 16, 1984 was still under consideration. I am advised that the Clerk of the Privy Council has now personally advised you of the decision of the Governor in Council.
I can see no basis for your allegation that the Deputy Minister of Energy, Mines and Resources failed to provide you with free access to information when you received in September 1982 all the information on the subject of interest to you in the records of the Department of Energy, Mines and Resources and to which you are entitled. Furthermore, I understand that you were informed on behalf of the Deputy Minister, by letter dated June 8, 1984, that the Deputy Minister does not have in his possession any additional information.
Again, I can see no basis for your allegation that the Deputy Minister of Finance failed to provide you with free access to information when you were informed on behalf of the Deputy Minister, by letter dated June 5, 1984, that you would be provided with free access to all the information to which you are entitled. Furthermore, I understand that on June 11, 1984, the Deputy Minister provided your representative with free access to all the information in the files of that department except for confidences of the Queen's Privy Council for Canada to which you are not entitled.
Surely you are not claiming a right of free access to confidences of the Queen's Privy Council for Canada. You know that, under our system of government, confidences of the Queen's Privy Council for Canada must, to safeguard the principle of collective responsibility of Ministers, remain confidential. Moreover, given the nature of such confidences, I cannot see how they could have any relevance or utility to the fulfillment of your responsibilities under the Auditor General Act.
Again, I see no basis for your allegation that the Chairman of the Board of Petro-Canada failed to provide you free access to information pursuant to Section 13(1) of the Auditor General Act when Section 14(2) of that Act clearly provides that such a request for information is to be made under that section to the Crown corporation and when the Chairman of the Board of Petro-Canada, who is not a member of the public service of Canada, is clearly not subject to Section 13(1) of the Auditor General Act.
Again, I see no basis for your allegation that the Minister of Finances and the Minister of Energy, Mines and Resources failed to provide you with free access to information when, as head of their department, they referred you to their deputy head whom they instructed to provide you with free access to information to which you are entitled in the records of their department.
I am particularly concerned by your allegation that the information you requested concerning the acquisition of Petrofina Canada Inc. by Petro-Canada, is necessary to fulfill your responsibilities as auditor of the accounts of Canada when your responsibilities as auditor of the accounts of Canada are in this case to audit the Canadian Ownership Account and more precisely to verify if payments made to Petro-Canada from the Canadian Ownership Account were made for the purposes and according to the conditions prescribed by Parliament and the Governor in Council under Appropriation Act no 4 1980-81 and whether the Government of Canada, in return, received from Petro-Canada shares, debentures, bonds or other evidences of indebtedness of Petro-Canada.
In closing, I am of the opinion that the position expressed in your letter of June 25, 1984, goes far beyond the role and functions of the Auditor General under the Auditor General Act.
Thwarted in his pursuit of desired information, the Auditor General, as I have mentioned, commenced proceedings in the Federal Court, Trial Division, for a remedy which would vindicate the claimed s. 13(1) right to the denied information. Initially, the Auditor General proceeded by way of a notice of motion of July 5, 1984, seeking an order of mandamus directing the respondents to give the Auditor General free access to the documentation summarized above in the letter to the Prime Minister, as well as copies of such documentation, and also a permanent injunction which would restrain the respondents from hindering access to the documents which are the subject of the order of mandamus. For various reasons, Jerome A.C.J. at pp. 732-34, supra, took the view that orders of the sort sought in the notice of motion were only available after judgment in an action, not by way of motion. It was also the concern of Jerome A.C.J. that the only remedy that could be granted would be a declaration. He cited two reasons for this concern; (i) as any correlative duties to the s. 13(1) right were not stated specifically, mandamus could not lie; and (ii) at p. 733:
[S]ince both mandamus and injunctive relief are discretionary in nature, it may be entirely inappropriate to grant either one of them unless the applicant has first exhausted every other convenient remedy at his disposal (see Supreme Court of Canada in Harelkin). In summary, it seemed quite clear that if this Court is to be in a position to resolve this dispute, it would have to be by way of declaratory judgment, only available in the Trial Division of the Federal Court of Canada, in an action.
Jerome A.C.J. called opposing counsel together after the notice of motion had been filed and secured their agreement to transform the initial application into an action between the parties. On August 2, 1985, the Auditor General filed his statement of claim, reiterating the earlier application for mandamus and a permanent injunction, but also claiming in the alternative a declaration of the Auditor General's right to access to specified information as well as the right to require and receive such information, reports and explanations as deemed necessary by the Auditor General. The information sought was as follows:
(i) All analysis and/or evaluation reports pertaining to the acquisition of Petrofina Canada Inc. prepared for, or received by or considered by, the Defendants in the exercise of their respective individual or joint statutory responsibilities;
(ii) All presentations, documents or memoranda relating to the use of funds from the accounts of Canada (in particular from the Canadian Ownership Account) for the acquisition of Petrofina Canada Inc. that were prepared for, or received by or considered by, the Defendants in the exercise of their respective joint or individual statutory responsibilities with respect to the acquisition of Petrofina Canada Inc.;
(iii) All evaluations of the Petrofina Canada Inc. acquisition and/or the assets acquired, that were undertaken subsequent to the acquisition, prepared for or received by, or considered by, the Defendants in the exercise of their respective individual or joint statutory responsibilities;
(iv) to provide the Plaintiff with information, and reports and explanation contained in the documents set out in (i), applicable to payments of public monies made from the accounts of Canada, more particularly, payments from the Canadian Ownership Account, Vote 5c, Appropriation Act No. 4, 1980-81, to acquire shares and property of Petrofina Canada Inc. and which the Plaintiff deems necessary to fulfill his responsibility under the Auditor General Act.
Between the original notice of motion and the statement of claim, the Clerk of the Privy Council, Gordon F. Osbaldeston, issued a certificate pursuant to s. 36.3 of the Canada Evidence Act stating that the documents sought by the Auditor General were confidential documents of the Trudeau Cabinet (on the basis of a claimed convention of Cabinet confidentiality and a claimed convention respecting access to the papers of previous ministries) and could not therefore be disclosed. All of the documents listed in a schedule to the certificate were asserted to relate to policy formulation by Cabinet with respect to the Petrofina acquisition.
III. Judgments in the Federal Court
A. Federal Court, Trial Division
Jerome A.C.J. was of the opinion that the case centred on whether the right to access to information given to the Auditor General by s. 13 of the Auditor General Act, took precedence over or, rather, had to defer to a convention of confidence of the Queen's Privy Council of Canada. The Act was structured such that the Auditor General's auditing responsibilities with respect to the accounts of Canada were set out in ss. 5 to 7 while the ss. 13 and 14 access to information sections were designed to facilitate the discharge of those duties. Jerome A.C.J interpreted ss. 5 and 13 together to produce the result that the Auditor General had free access to all information, including Cabinet documents, that related to "the fulfilment of his responsibilities" which was a reference back to the stipulation in s. 5 that the Auditor General "shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act" (e.g. s. 7(2)(d)). The only exception to the access entitlement was found in s. 13(1) itself, in its first subordinate clause which reads "Except as provided by any other Act of Parliament that expressly refers to this subsection . . . ." Since no relevant Act expressly referred to s. 13(1), s. 13(1) prevailed.
Jerome A.C.J. had no difficulty in finding that there exists in Canada a convention whereunder private deliberations between Ministers of the Crown for the purpose of rendering advice to Her Majesty remain confidential. The existence of a convention on Cabinet confidentiality could not, however, displace the interpretation which the trial judge placed on s. 13(1). The failure of Parliament to embody statutorily the convention in the Auditor General Act meant that it was not intended that the Auditor General should be restricted by the convention. This was especially the case considering that three federal statutes (the Canada Evidence Act, the Access to Information Act, S.C. 1980-81-82-83, c. 111 (Schedule I), and the Privacy Act, S.C. 1980-81-82-83, c. 111 (Schedule II)) as well as the Rules and Procedures of the House of Commons specifically recognized the convention.
Jerome A.C.J. then granted a declaration that the Auditor General was entitled to access to the information contained in the documents set out in the statement of claim. From the moment of his original request as well as for all future requests, he was so entitled because the Act was found to leave to the Auditor General the determination of which examinations were necessary for the fulfilment of his responsibilities. Jerome A.C.J. further advanced the view that the s. 36.3 certificate would have barred any order for production of documents by the court but had no effect on a declaratory judgment such as he was issuing.
Finally, Jerome A.C.J. referred to submissions before him to the effect that the Auditor General's only avenue of redress in a dispute over his entitlement to information under s. 13(1) was to Parliament. This argument, which was again advanced before this Court, was rejected at pp. 749-50, in the following terms:
Were we dealing with discretionary relief of mandamus, those arguments would be more pertinent. Here, there is an impasse between two principles, each a part of our law, and the plaintiff asks the Court to resolve the impasse. It is the Court's obligation to do so. Furthermore, there is a very practical limitation upon the possibility of a full resolution within the precincts of the House of Commons. The grievance is the denial of access to information in the hands of Cabinet. Cabinet occupies the executive position because of the Government majority in the House of Commons. The ultimate disposition of any grievance would, I assume, result from a motion to compel production of the documents and whether in the standing committees or on the floor of the House of Commons, the resulting vote is predictably governed by the very same majority.
B. Federal Court of Appeal
The judgment of Jerome A.C.J. was appealed and reversed. All three judges in the Federal Court of Appeal gave reasons for judgment. Heald and Pratte JJ. formed a majority in favour of allowing the appeal while Hugessen J. dissented, although he would still have varied the scope of the declaration granted by Jerome A.C.J. Because each majority opinion to some extent responds to the dissenting first reasons penned by Hugessen J., I shall commence my review of the Court of Appeal judgments with his opinion.
1. Dissenting Opinion of Hugessen J.
Hugessen J. began by stating that prior to determining whether any convention of Cabinet confidentiality took precedence over the s. 13(1) access to information entitlement (which Jerome A.C.J. viewed as the main issue), there was a prior issue of determining the nature and extent of the responsibilities of the Auditor General, and whether he had a duty to follow the use made of public funds in order to determine whether the Canadian people had had value for their money; for convenience sake, this may be referred to as the "tracing" issue. In approaching the interpretive task, Hugessen J. stated that an evolutive interpretation of the Act was necessary as the Auditor General's actual role has always tended to run somewhat beyond the strict legal framework (at p. 433):
Since that role has continued to evolve and since, as will be seen, nothing in the language of the 1977 statute requires it to be given a narrow reading, care must be taken to avoid freezing the function as though it had not continued to develop.
Hugessen J. interpreted s. 5 to be a general statement of the Auditor General's duties. Section 5 linked the Auditor General's "examinations and inquiries" to his "report", the scope of which was determined by s. 7. Section 7(2)(d) and (e) were found to give specific authority to inquire into economy, efficiency and effectiveness, "the classic vocabulary of comprehensive auditing or value for money" (p. 437). Hugessen J. relied quite heavily on the wording of Vote 5c in dealing with the tracing question. Because Vote 5c clearly directed that the appropriated funds were not merely for an investment in Petro-Canada but also for the use by Petro-Canada to acquire Petrofina, the Auditor General could trace the flow of the appropriated funds in order to determine both whether the money was spent on the appropriated purpose (s. 7(2)(c)) and whether value for money had been achieved (s. 7(2)(d) and (e)). In carrying out such an audit, the Auditor General would not be questioning the wisdom of the political decision to promote the policy of the National Energy Programme via the Petrofina acquisition but, rather, would be conveying to Parliament an evaluation of the economic cost of the political decision. Furnished with such information, others, M.P.'s and voters, could make their own political judgments on the wisdom of the venture.
Having determined that the Auditor General's duties extended to evaluating the flow of funds from Petro-Canada to Petrofina, Hugessen J. moved on to consider the information to which the Auditor General had access as of right. Section 13(1) paralleled the previous ss. 5 and 7 which covered the Auditor General's duties. The section was divided into two distinct rights, one exercisable against civil servants and the other against persons other than civil servants. The right to information in either case was governed by the test of whether the information related to the fulfilment of the Auditor General's responsibilities. Because the Auditor General had a duty to make the inquiries into the Petrofina acquisition, s. 13(1) entitled him to access to the relevant information.
Hugessen J. went on to find that neither the s. 36.3 certificate nor any constitutional convention of confidentiality could prevail over the s. 13(1) entitlement. The primacy clause with which s. 13(1) began was so unambiguous and strongly worded as to override any privilege whether common law or statutory. Only a statute specifically referring to s. 13(1) could oust a s. 13(1) entitlement.
Like Jerome A.C.J., Hugessen J. rejected two arguments on the nature of the available remedies. He first stated his view that if the only means by which the Auditor General could enforce his s. 13(1) rights were via his s. 13(4) powers of subpoena as a commissioner under the Inquiries Act, then Hugessen J. would read the s. 13(1) primacy (as against a s. 36.3 certificate) into s. 13(4). He went on (at pp. 441-42), however, to find that the s. 13(1) right independently entailed the availability of judicial remedies:
For my part, however, I can see no basis in principle upon which the Auditor General's right of access under subsection 13(1) should be limited by the procedural remedy of subsection 13(4). The scope of the first so vastly exceeds that of the second that any such limitation would, in truth, amount to a denial of the right itself.
By the same token, I am unable to accept the appellants' subsidiary argument that, in the event of denial of access, the Auditor General's only remedy is to make an unfavourable report to Parliament under paragraph 7(1)(b). The statute speaks in terms of entitlement, a legal term peculiarly apt to describe a legal right for which there must be a legal remedy. A declaration of the kind sought here is singularly appropriate as a remedy. If I had any doubt on the matter (and I have not), I would apply to the Auditor General Act the same sort of broad and purposive interpretation as was given by the Supreme Court to the Ombudsman Act (R.S.B.C. 1979, c. 306) in British Columbia Development Corporation et al. v. Friedmann, Ombudsman et al., [1984] 2 S.C.R. 447.
Hugessen J. thus would have dismissed the appeal, subject to one proviso. The first paragraph of Jerome A.C.J.'s formal order, at p. 752, declared that the Auditor General had a right of access under s. 13(1) to all information deemed necessary by the Auditor General himself. In Hugessen J.'s view, this went beyond what had been requested (at p. 444):
In my view, this declaration is far in excess of what was asked for and should not, in any event, be granted. It, in effect, gives the Auditor General carte blanche, with the authority of a binding declaration from the Court, to have access to all and every document as he alone deems necessary. While it is, of course, true that, in the first instance, it will always be the Auditor General who must decide what is or is not necessary for him to carry out his functions under the law, it is equally true that, in any case where his judgment on the point is questioned, the matter will have to be determined by a court of law. That is precisely what has happened in the present case and if, in some future case, some problem arises as to what is properly within the Auditor General's scope of inquiry, it will have to be resolved in the same way.
Hugessen J., in the course of his reasons, stated that the appeal did not require any definitive pronouncement on the questions of Crown privilege and the constitutional conventions of Cabinet confidentiality.
2. The Majority Opinion of Heald J.
Heald J. began by endorsing Hugessen J.'s characterization of the issues. He agreed with Hugessen J. as well that s. 13(1) was paramount over other statutory and common law rules. However, in this case s. 13(1)'s paramountcy did not give the Auditor General access to the claimed Cabinet documents or Petro-Canada records because they did not relate to the "fulfilment of his responsibilities".
In order to determine what those responsibilities were, Heald J. had regard both to ss. 5 and 7 and to ss. 13 and 14, but primarily to the latter sections. Unlike Hugessen J., he did not appear to see "responsibilities" in s. 13(1) as being coextensive with the "duties" in ss. 5 and 7; as a result, he did not determine those responsibilities by looking solely at ss. 5 and 7 as an initial stage of analysis. Rather, all of the sections were read together in such a way that auditing duties merged with sources of information. Heald J.'s approach tended to suggest that when information was sought by the Auditor General from a source, that source was being audited as part of auditing the accounts of Canada.
Heald J. first asked whether the Auditor General's auditing responsibilities extended to Cabinet documents. First, Cabinet Ministers and the Privy Council did not fall within the definition of "public service" in s. 13(1). Secondly, they did not fall within the residual area of s. 13(1) (non-public service) as they were not mentioned by the facilitating s. 13(2) and (3). Because Crown corporations were mentioned in s. 13(3), they fell within s. 13(1) as did departments, which were mentioned both in s. 13(2) and s. 13(1) itself. Thirdly, Heald J. reasoned that since the Auditor General could only audit expenditures "downstream" of appropriation (e.g. Vote 5c), his "responsibilities" could not include reporting on "decisions reached by the Governor in Council which led to the Parliamentary appropriation" (p. 418). On this third point, Heald J., after quoting the opening words of the Auditor General Act, "The Auditor General is the auditor of the accounts of Canada", stated (at pp. 417-18):
The expression "accounts of Canada" is not defined in the Auditor General Act. However, it is referred to in the Financial Administration Act. Section 54 of that Act provides:
54. (1) Subject to regulations of the Treasury Board, the Receiver General shall cause accounts to be kept in such manner as to show
(a) the expenditures made under each appropriation;
(b) the revenues of Canada; and
(c) the other payments into and out of the Consolidated Revenue Fund.
(2) The Receiver General
(a) shall cause accounts to be kept to show such of the assets and direct and contingent liabilities of Canada, and
(b) shall establish such reserves with respect to the assets and liabilities,
as, in the opinion of the Minister, are required to give a true and fair view of the financial position of Canada.
(3) The accounts of Canada shall be kept in the currency of Canada.
This is consistent with section 19 of the same Act which provides:
19. Subject to the British North America Acts, 1867 to 1965, no payments shall be made out of the Consolidated Revenue Fund without the authority of Parliament.
Thus, pursuant to subsection 54(1)(a), supra, the Receiver General is required to keep accounts showing "the expenditures made under each appropriation". These accounts form a part of the "accounts of Canada". They are a part of the accounts which the Auditor General is charged with reporting on to the House of Commons. However, his responsibility commences after the appropriations have been passed by Parliament. Therefore, I agree with counsel for the appellants that the "responsibilities of the Auditor General" are "downstream" of the Appropriation Act or other authorizing statute, and that the work of the Office of the Auditor General in respect of which he must report to the Commons annually pursuant to section 7 would not include decisions reached by the Governor in Council which led to the Parliamentary appropriation (Vote 5c of Appropriation Act No. 4, 1980-81).
Heald J. added (at pp. 418-19):
I also agree with counsel for the appellants that the Auditor General's responsibilities are related to the implementation of legislative enactments passed by Parliament and cannot be extended to permitting the Auditor General to challenge the wisdom of those enactments. In this case, the effect of the Trial Division judgment would be to allow the Auditor General to audit the political process prior to March 31, 1981, the date of enactment of Appropriation Act No. 4, which Act contains the parliamentary spending authority for the Petrofina acquisition. I am unable to interpret the authority conferred upon the Auditor General pursuant to subsection 13(1) in such an all-embracing fashion.
Heald J., later in his judgment, was also impressed by the fact that an awkward situation would evolve when the Auditor General applied to a court under s. 13(1) for access to documents which were attested to be confidential by a s. 36.3(1) certificate. Because such a certificate would prevent the Court itself from having access to the information, the Court would be unable to determine whether the information related to the Auditor General's responsibilities by perusing the documents prior to ordering access. This "lack of a viable remedy" suggested that Privy Council confidences were not meant to be included in s. 13(1) at all.
Heald J. further addressed the scope of s. 13(1) responsibilities with regard to records of Petro-Canada in light of the provisions of s. 14. He held that s. 14 specifically addressed the Auditor General's access rights vis-à-vis Crown corporations and therefore restricted any general right of access which initially appeared to exist under s. 13. Thus, the Auditor General was not entitled to access to Petro-Canada records by way of s. 13(1) as "the access sought by the respondent [Auditor General] falls outside the purview of his responsibilities" (p. 421).
It may be useful to cover in some detail Heald J.'s view of the relationship between the various remedies in the Auditor General Act. Although Heald J. did not classify a s. 14(3) request of assistance to the Governor in Council as a remedy, his language is apposite to the question of available remedies (at p. 422):
In addition to rendering redundant the enabling provisions of section 14 of the Act, the interpretation of subsection 13(1) advocated by the respondent would render nugatory the provisions of subsection (3) of section 14. As noted earlier herein, the Governor in Council refused, pursuant to subsection 14(3) to direct Petro-Canada to deliver the information sought by the Auditor General with respect to Petro-Canada's acquisition of Petrofina. By demanding the same information directly from the appellants as directors of Petro-Canada pursuant to subsection 13(1), the respondent seeks to effectively reverse the decision of the Governor in Council, a result which he could not achieve by recourse to the courts since, pursuant to subsection 28(6) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], this Court has no jurisdiction to review any decision or order of the Governor in Council. In my view such an interpretation of the words used in subsection 13(1) would be quite improper since the consequence thereof would be to achieve a result by indirect means which was impermissible through direct action.
He then went on to address specifically the remedies question in the following terms at p. 423:
THE REMEDIES AVAILABLE TO THE AUDITOR GENERAL
Before concluding, I would like to express some views as to the remedies which are open to the Auditor General in the discharge of his responsibilities. In my view the Auditor General has a hierarchy of remedies available to him under the Auditor General Act. The first remedy which is, in my view, a primary remedy, is founded in paragraph 7(1)(b) of the Auditor General Act. Subsection 7(1) reads:
7. (1) The Auditor General shall report annually to the House of Commons
(a) on the work of his office; and
(b) on whether, in carrying on the work of his office, he received all the information and explanations he required.
The next remedy is nourished by the provisions of subsection 13(4) of the Auditor General Act. That subsection reads:
13. . . .
(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.
The third remedy is the remedy provided pursuant to subsection 13(1) which, as noted supra, is the most comprehensive remedy because of the paramountcy clause expressed at the outset of the subsection.
I conclude that the subsection 13(4) remedy is a less powerful one than the remedy under subsection 13(1) because of the absence of the paramountcy clause in subsection 13(4).
It should be recalled that Heald J.'s earlier analysis had already excluded the use of s. 13(1) as a remedy for failure to secure access to Cabinet and Crown corporation documents.
3. Majority Opinion of Pratte J.
Pratte J. also agreed with Hugessen J. that the first and essential question to be determined was the nature and extent of the Auditor General's responsibilities under the Auditor General Act. However, he disagreed that the documents, dealing with "the evaluation of the shares of Petrofina Canada Inc. prior to their acquisition by Petro-Canada", related to those responsibilities. Unlike Heald J., he based his analysis entirely on ss. 5 and 7, without having recourse to ss. 13 and 14.
Pratte J. stated that ss. 13 and 14 rights may only be invoked in the course of the audit of an "account of Canada", as referred to in s. 5. He observed that the Auditor General is not the auditor of the accounts of Crown corporations like Petro-Canada. He then took the view that the responsibility in s. 7(2)(d) being relied upon by the Auditor General, of reporting whether "money has been expended without due regard to economy or efficiency", must refer to auditing an expenditure that has been authorized by Parliament, as all government expenditures must be authorized by Parliament. Because the Minister of Energy, Mines and Resources was given "very little discretion" (later, "no discretion") by Vote 5c, "he could not have regard to economy and efficiency" (p. 413) in spending the appropriated money to buy shares in Petro-Canada. To audit the subsequent purchase of Petrofina would amount to a s. 7(2)(d) audit of the accounts of Petro-Canada, not the accounts of Canada.
Pratte J. expressed the view that for the Auditor General to succeed in his claim, s. 7(2)(d) would have to be interpreted so broadly as to include a "duty of determining whether the authorization to spend contained in the Appropriation Act itself was given with due regard to economy and efficiency" (p. 413). The Auditor General was in effect claiming a duty to evaluate a decision of Parliament on how to spend money about which the spending Minister had no discretion. Such an interpretation would, in Pratte J.'s opinion, not only enlarge the Auditor General's duties but also radically change their very nature. Absent clearer language, s. 7(2)(d) could not permit the Auditor General to evaluate whether the legislation, or the government decisions leading to the legislation, accorded with economy and efficiency.
Speaking of the modification of the Auditor General Act in 1977, Pratte J. said (at p. 412):
All government expenditures must be authorized by Parliament. Paragraph 7(2)(d), therefore, must refer to money that has been expended pursuant to the authorization of Parliament. It is on that basis that the meaning of paragraph 7(2)(d) must be determined.
He went on to say that the new responsibilities were merely an extension of the responsibility that the Auditor General already had of verifying that the government had complied with the wishes of Parliament by making no expenditures except those authorized by appropriation acts.
IV. Analysis
There is an issue which arises prior to those identified in the courts below, namely, whether the Auditor General's remedies for the claimed s. 13(1) entitlement are limited to those explicitly contained in the Auditor General Act. That is to say, does the Auditor General have recourse to the courts, as an alternative remedy, in the event of the denial by Parliament, responsible Ministers, and the Governor in Council to make available to him all of the documentation he may seek in what he regards as the discharge of his responsibilities in auditing the accounts of Canada?
The respondents argue that, in the event the Auditor General is denied access to information he feels entitled to by s. 13(1), his remedies are circumscribed by the terms of his constitutive statute. Specifically, his final recourse must be to what is referred to as the reporting remedy in s. 7(1)(b) which I shall reproduce again for ease of reference:
The Auditor General shall report annually to the House of Commons . . . on whether, in carrying on the work of his office, he received all the information and explanations he required.
The French version reads:
Le vérificateur général prépare à l'intention de la Chambre des communes un rapport annuel dans lequel [. . .] il indique s'il a reçu, dans l'exercice de ces activités, tous les renseignements et éclaircissements réclamés.
As outlined in the review of the facts, the Auditor General indicated in his 1982 and 1983 Annual Reports, op. cit., that he had been denied access to information and had thereby been precluded from making a s. 7(2)(d) evaluation of the Petrofina acquisition. Such specific attestations to the denial of relevant information implicitly qualified the Auditor General's earlier certification on the first page of each of the 1982 and 1983 Annual Reports, op. cit., that "[m]y staff was provided with all the information and explanations required", the language of which clearly follows that of s. 7(1)(b). The respondents claim that a s. 7(1)(b) report exhausts the Auditor General's remedies, it being for the House of Commons to decide whether action is required to remedy the reported denial of information. If, as in the case here, Parliament, or, more accurately, the House of Commons, sees fit not to act, the courts should not intervene to grant remedies in a matter argued to be particularly within Parliament's sphere of responsibility. Section 7(1)(b) is taken to reflect Parliament's intent to have the last word in any dispute involving its own political servant, the Auditor General, and to limit thereby the role of judicial review of the federal auditing process.
In reply, the Auditor General argued that the language of the Auditor General Act does not oust the courts as the appropriate dispute resolution forum. He emphasized that s. 13(1) speaks in terms of an entitlement (" . . . the Auditor General is entitled . . .") which connotes a justiciable right, that is, a legal right for which there must be a remedy in the courts in order to vindicate that right. It is contended that for every legal right, there must be a legal remedy, a requirement which is not satisfied by any political remedy that may be implicitly claimed by way of s. 7(1)(b) report to the House of Commons.
The respondents rely upon three cases. In Temple v. Bulmer, [1943] S.C.R. 265, s. 34 of The Legislative Assembly Act, R.S.O. 1937, c. 12, provided that where a seat in the legislature of Ontario had been vacant for three months and no election writ yet issued, the legislative clerk would immediately issue a writ. A voter sought an order of mandamus directing the clerk to issue the writ. In a very brief judgment, this Court affirmed the view of the Ontario Court of Appeal that the issue of mandamus would constitute an intrusion into the functions and privileges of the legislature itself. Chief Justice Duff, for the Court, went on to state (at p. 267):
We cannot agree with the contention . . . that section 34 of The Legislative Assembly Act confers jurisdiction upon the Courts in relation to Parliamentary elections. Any duty imposed by that section upon the Clerk of the Crown in Chancery is imposed upon him in his character of an officer under the control of the Legislative Assembly and answerable to the Legislative Assembly.
Quite obviously, the fact situation in Temple v. Bulmer is not directly analogous to that in the case at bar, as no citizen is seeking to compel the Auditor General to carry out a statutory duty; rather, it is the Auditor General who is seeking to compel members and officers of the executive to carry out a duty which is allegedly implicitly correlative to his own statutory entitlement in s. 13(1). However, Temple v. Bulmer is put forward by the respondents as authority for the view that a statute may employ wording capable of creating rights or obligations without that right or obligation being enforceable in a court of law, especially where the subject matter of the right or obligation deals with functions which are the preserve of the legislative branch, such as the issuing of election writs. Notwithstanding the mandatory language of the provision in Temple v. Bulmer (" . . . the Clerk . . . shall issue the writ forthwith . . . "), the courts were found not to be the appropriate forum to enforce the obligation of the legislative servant. Similarly, the respondents contend, the language of entitlement in s. 13(1) of the Auditor General Act, when read in light of s. 7(1)(b), should not be read to confer a judicial remedy to enforce the right of a legislative servant in an area peculiarly the responsibility of the House of Commons -- overseeing expenditures by the executive.
The English case of British Railways Board v. Pickin, [1974] A.C. 765 (H.L.), was also cited on the question of the proper remedial forum. One submission of the respondent Pickin in that case was that a statutory provision in a private Act of Parliament had been obtained as a result of fraudulent representations to Parliament. As a result, the respondent contended that either the courts should actually disregard the fraudulently obtained section, and refuse to apply it in favour of the appellants, or that the courts could find that the benefit conferred on the appellants by the impugned section was held in trust for the respondent. Before the House of Lords, the respondent sought to make a distinction between public and private Acts of Parliament, contending that the latter could be declared invalid or ineffective on account of fraud or irregularities in Parliamentary procedure while the courts have to give full binding effectiveness to the provisions of the former, however obtained.
The House of Lords found that the relevant paragraphs to the claim should be struck out for want of reasonable cause of action. Rejecting the distinction between public and private Acts, their Lordships relied on the notion of Parliamentary sovereignty or supremacy and the constitutional role of the courts to consider, construe and apply a statute, once enacted, but not to inquire into the circumstances leading to its enactment in order to impugn its validity. Lord Simon, in one of the five judgments, pinpointed three elements of Parliamentary sovereignty at pp. 798-800:
[Firstly, t]his involves that, contrary to what was sometimes asserted before the 18th century, and in contradistinction to some other democratic systems, the courts in this country have no power to declare enacted law to be invalid. It was conceded before your Lordships (contrary to what seems to have been accepted in the Court of Appeal) that the courts cannot directly declare enacted law to be invalid. That being so, it would be odd if the same thing could be done indirectly, through frustration of the enacted law by the application of some alleged doctrine of equity.
A second concomitant of the sovereignty of Parliament is that the Houses of Parliament enjoy certain privileges. These are vouchsafed so that Parliament can fulfil its key function in our system of democratic government . . . .
. . . Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings . . . .
It is well known that in the past there have been dangerous strains between the law courts and Parliament -- dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other -- Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege . . . .
. . . [T]he considerations of parliamentary privilege to which I have referred would undoubtedly seem to extend to private Bill procedure; . . .
[Thirdly, a] further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well -- indeed, would be likely to -- wish to conduct its own inquiry. It would be unthinkable that two inquiries -- one parliamentary and the other forensic -- should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law --quite apart from considerations of Parliamentary privilege.
While no issue of the courts passing on the validity of a statute arises in the case at bar, the respondents submit that the question of a "sphere of action", in the words of Lord Simon, properly left to the discretion of the legislature and one into which the courts should be slow to enter is very much at stake. For this Court to order access to information for the Auditor General would be, in effect, to overrule a decision of the House of Commons not to act in this matter and to disturb the balance of constitutional powers between the executive and legislative branches of government. The Auditor General is the political servant of Parliament who carries out Parliament's function on its behalf. In the respondents' view, to provide a judicial remedy for s. 13(1) rights of the Auditor General would amount to substituting the Court's view for that of the House of Commons on the extent of Parliament's own rights, albeit statutory, vis-à-vis the executive.
The final case cited by the respondents on the s. 7(1)(b) reporting remedy is Terrasses Zarolega Inc. v. Régie des installations olympiques, [1981] 1 S.C.R. 94. The respondents rely on this case for the proposition that where a statute provides for remedies, then those remedies not only must be pursued but also exhaust the avenues of recourse. In that case, the Olympic Village in Montréal was expropriated. The expropriation Act created an arbitration committee to determine the compensation to which the appellants were entitled. The appellants applied to the Quebec Superior Court, prior to the creation of that committee, for a declaratory judgment on, inter alia, the compensation issue. Chouinard J., for this Court, held that because the legislature intended to make the arbitration committee responsible for determining compensation, that issue had been given over to that committee with the result that no remedy before the courts existed. Chouinard J., at p. 107, endorsed the view expressed in de Smith, Judicial Review of Administrative Action (4th ed. 1980), at p. 513, that "the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded . . . ." Declaratory relief should not be granted when the legislature has seen fit to create a lower tribunal with jurisdiction to dispose of the matter for which declaratory relief is sought. Chouinard J. clearly saw this rule as an aspect of the principle that a remedy may be denied if "another convenient and equally effective remedy is available": p. 106, supra, quoting Mignault J. in City of Lethbridge v. Canadian Western Natural Gas, Light, Heat and Power Co., [1923] S.C.R. 652, at p. 663. It is the respondents' contention that, while not creating a lower tribunal to provide the necessary remedy as in Terrasses Zarolega, s. 7(1)(b) evinces Parliament's intention to appoint itself as the forum with final responsibility for determining the extent of the Auditor General's rights of access to information.
The above cases are illustrative of two strands in the case law on the question of whether the courts should grant a remedy in given circumstances -- the concept of justiciability and the doctrine of alternative remedies. Temple v. Bulmer, supra, and Pickin, supra, deal, in an inchoate way, with the question of justiciability. As I noted in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 459, justiciability is a "doctrine . . . founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes", endorsing for the majority the discussion of Wilson J. beginning at p. 460. Wilson J. took the view that an issue is non-justiciable if it involves "moral and political considerations which it is not within the province of the courts to assess" (p. 465). An inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity.
The most basic notion of justiciability in the Canadian legal process is that referred to in Pickin, supra, and inherited from the English Westminster and unitary form of government, namely, that it is not the place of the courts to pass judgment on the validity of statutes. Of course, in the Canadian context, the constitutional role of the judiciary with regard to the validity of laws has been much modified by the federal division of powers as well as the entrenchment of substantive protection of certain constitutional values in the various Constitution Acts, most notably that of 1982. There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.
In the realm of Charter adjudication, s. 1 is "the uniquely Canadian mechanism through which the courts are to determine the justiciability of particular issues that come before it" (Wilson J. in Operation Dismantle, supra, at p. 491). Ultimately, the courts are constitutionally charged with drawing the boundaries of justiciability, except as qualified by s. 33. By way of contrast, in the residual area reserved for the principle of Parliamentary sovereignty in Canadian constitutional law, it is Parliament and the legislatures, not the courts, that have ultimate constitutional authority to draw the boundaries. It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in interpreting, applying and enforcing its statutes. While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively, contextually or policy-oriented may be the interpretative methods used to attribute such meaning. If, then, the courts interpret a particular provision as having the effect of ousting judicial remedies for entitlements contained in that statute, they are, in principle, giving effect to Parliament's view of the justiciability of those rights. The rights are non-justiciable not because of the independent evaluation by the court of the appropriateness of its intervention, but because Parliament is taken to have expressed its intention that they be nonjusticiable.
The just-stated view sits comfortably with the occasions on which the courts give effect to so-called privative clauses that explicitly oust judicial review. As a constitutional matter, it is not appropriate for the court to intervene by virtue of the simple fact that Parliament has directed that they must not.
But, what of the situation where a statute provides that a non-judicial body shall have power to grant a remedy but does not expressly prohibit the courts from also granting a remedy? It is at this point that Terrasses Zarolega becomes relevant. That case, as was seen, was decided on the basis of what may be referred to as an alternative remedies doctrine. Terrasses Zarolega dealt with declaratory relief, while the prerogative remedies of certiorari and mandamus were at issue in another case before this Court, Harelkin v. University of Regina, [1979] 2 S.C.R. 561. While Harelkin dealt with the pursuit of remedies for the denial of natural justice in the administrative law context, its principles are equally applicable to a case such as at bar where declaratory relief is sought in order to vindicate a statutory right; indeed, Terrasses Zarolega was such an instance as well. With respect, it is, in my view, not desirable to make a distinction between the effect of alternative remedies on declaratory relief and on prerogative remedies, as Jerome A.C.J. did, supra. Further, while both of these cases dealt with discretionary bars to relief in suits brought by ordinary citizens, it is clear that declarations and the prerogative remedies are equally discretionary when sought by the Crown. In P.P.G. Industries Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739, at p. 749, Laskin C.J. held that discretion should be exercised to refuse relief to the Attorney General, acting for the Crown, (albeit for reasons of delay, not alternative remedies):
[T]he Attorney General should be in no different position from any other applicant who seeks to quash an adjudication or a decision . . . .
[Further, i]n my opinion, discretionary bars are as applicable to the Attorney General on motions to quash as they admittedly are on motions by him for prohibition or in actions for declaratory orders.
In Harelkin, a university student was required by the University of Regina to discontinue his studies. He appealed to a university committee which was obligated by The University of Regina Act, 1974, S.S. 1973-74, c. 119, to "hear and decide" the appeal. The committee heard the university's side and, without then hearing the student, decided in the university's favour. After the student's request for a rehearing was refused, he launched certiorari and mandamus proceedings without making a final appeal to another committee, that of the university senate, which was also charged by the Act to "hear and decide" any appeal.
Writing for the majority, Beetz J. found that certiorari and mandamus are discretionary remedies, even in cases involving lack of jurisdiction and, a fortiori, in cases of excess or abuse of jurisdiction, into which category breaches of natural justice were found to fall. One ground for discretionary refusal to issue these prerogative writs was the presence of an adequate alternative remedy. Adequacy was to be determined after a judicial weighing of factors, some of which were outlined by Beetz J. at p. 588:
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.
Beetz J. then reached the conclusion that Harelkin's right of appeal to the university senate committee was an adequate alternative remedy and that the lower court should therefore have exercised its discretion not to grant a remedy. From the perspective of the case at bar, the most important elements of Beetz J.'s reasoning followed upon this conclusion and revealed the interplay between judicial and legislative determinations of justiciability. After commenting on Harelkin's "preference for external forums" (p. 592), Beetz J. reflected on the nature of the institution governed by the Act in question (at pp. 594-96):
The Act incorporates a university and does not alter the traditional nature of such an institution as a community of scholars and students enjoying substantial internal autonomy . . . . [I]ts governing bodies function as domestic tribunals when they act in a quasi-judicial capacity. The Act countenances the domestic autonomy of the university by making provision for the solution of conflicts within the university . . . .
Sections 78(1)(c) and 33(1)(e) are in my view inspired by the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the university to correct its errors with its own institutional means. In using restraint, the courts do not refuse to enforce statutory duties imposed upon the governing bodies of the university. They simply exercise their discretion in such a way as to implement the general intent of the Legislature. I believe this intent to be a most important element to take into consideration in resolving the case, and indeed to be a conclusive one, when taken in conjunction with the others.
In the above passage, Beetz J. contrasts privative clauses to clauses which, while not privative, nonetheless send a "clear signal" to the courts that they are not an appropriate forum for resolution of a particular kind of dispute. This may also be referred to as the distinction between express ouster (or exclusion) and implied ouster of remedies. It would, I think, be an overstatement to suggest that the courts are simply implementing Parliament's own decision on justiciability when they determine that remedies are implicitly ousted by means of the presence of adequate alternative remedies, whether found in the statute creating the legal right at issue, or not. Albeit with the assistance of the wording and scheme of the Act in which the alternative remedy is found, both the fact that ouster needs to be implied and the fact that an evaluation of adequacy is called for suggest that the alternative remedies bar to discretionary judicial relief entails, in reality, a decision by the courts on the appropriateness of their intervention, and less a clear statement of intention by Parliament. By not unambiguously highlighting the exclusivity of the statutory remedy, Parliament leaves it to the judiciary to define its role in relation to that remedy. I agree with the following conclusion of Peter Cane in An Introduction to Administrative Law (1986), at p. 190, as regards what he calls the constitutional function of administrative law rules on ouster of remedies:
The rules about implied exclusion of review tend to raise . . . questions about the suitability of the judicial process as opposed to the other avenues open for the control of administrative misconduct. In other words, these rules tend to rest on ideas of justiciability and the proper scope of judicial review.
As mentioned above, the respondents cited Terrasses Zarolega, supra, as authority for a putative rule that if the statute which creates the right which an applicant seeks to enforce also provides a remedy for its enforcement, then the remedy is the only one available to the applicant: see Cane, op. cit., at p. 189, for the view that such a rule exists in England. I do not, however, read Terrasses Zarolega, supra, as laying down a completely non-discretionary rule of this sort. It still falls to the courts to determine the adequacy of the statutory remedy. Even in England, the principle only applies if the judicial review remedy sought by the applicant performs the same function as the statutory remedy; such a proviso must surely be seen as one measure of adequacy. It may well be that once the alternative remedy is found to be adequate discretionary relief is barred, but this is nothing but a reflection of a judicial concern to exercise discretion in a consistent and principled manner. Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant to the inquiry into adequacy. That said, the degree to which a statutory remedy is clearly linked to a right in the same Act will be relevant by virtue of indicating the view of Parliament as to an appropriate way to vindicate the right. Further, the extent to which the remedy can be said to form part of a comprehensive remedial scheme or code will also be a relevant indication that Parliament directed its attention to appropriate remedies. However, when Parliament fails to state explicitly that a statutory remedy is the sole or exclusive remedy, it will always be the case that exclusivity cannot be automatically assumed. The starting-point for the courts' determination of their constitutional role in such matters is that the courts should not bow before inadequate relief for citizens' statutory and common law rights. What is and is not adequate will often involve the normative inquiry into justiciability discussed above in the context of Temple v. Bulmer; British Railways Board v. Pickin, and Operation Dismantle, supra. Beetz J. would seem to have engaged in such an inquiry in Harelkin, supra, in his discussion of the desirability of a sphere of "substantial internal autonomy" for universities.
Does s. 7(1)(b) mean that the Auditor General has no judicial review remedy for any entitlements that he may have under s. 13(1)? Is the reporting remedy contained therein an adequate and, therefore, exclusive remedy? Before interpreting the import of s. 7(1)(b), three preliminary observations are necessary. First, the alternative remedial forum, the House of Commons, is a purely political forum in contrast to the administrative bodies in Terrasses Zarolega and Harelkin, supra. Part of the question of adequacy in those cases resided in the fact that these bodies resembled the judiciary to some extent in terms of their capacities and nature. In the present case, the Court is called upon to decide whether the political remedy in s. 7(1)(b) is an adequate remedy for s. 13(1) entitlements, assuming a s. 13(1) entitlement. An inquiry into adequacy in this context very obviously connotes notions of justiciability. The second and related observation is that the Auditor General has brought suit not qua ordinary citizen but in his capacity as the servant of Parliament. While in normal course (that is, in a suit by a citizen) a political remedy would not meet the adequacy test, different considerations are introduced when suit is brought by a political servant, in his or her official capacity. This must particularly be the case when the remedial political forum is also the political master of that political servant. Thirdly, it is significant that the Auditor General seeks a remedy against other political actors, namely Ministers of the Crown and Crown servants (Deputy Ministers). This directly raises issues related to the constitutional balance of powers in the Westminster, and our, system of government.
The following analysis proceeds in two stages. I will first seek to discern from the terms of the Auditor General Act what Parliament itself may be taken to have intended on the question of whether s. 7(1)(b) is an exclusive remedy. This will be an attempt to determine, as far as possible, the enacting Parliament's view of the justiciability of the s. 13(1) claim. I will then inquire into the adequacy of s. 7(1)(b) as a remedy and, therefore, the appropriateness of finding s. 13(1) to be nonjusticiable.
It was suggested above that the clarity of the linkage between a statutory right and a statutory remedy is relevant to determining Parliament's view of the appropriateness of the remedy. Even more fundamentally, a prior question is whether a provision is in fact a remedy at all, let alone an adequate one. Section 7(1)(b) admittedly is not cast in explicitly remedial terms. For ease of reference, I will again set out the section:
7. (1) The Auditor General shall report annually to the House of Commons
. . .
(b) on whether, in carrying on the work of his office, he received all the information and explanations he required.
The section refers to a duty to report of the Auditor General, but can, in my view, simultaneously be characterized as a reporting remedy.
The reference to "information and explanations" in s. 7(1)(b) is almost exactly paralleled by s. 13(1) which refers to "information" and then "information, reports and explanations"; further, s. 14(2) and (3) refer again to "information and explanations". Section 13(1) sets out an entitlement of access to information while s. 7(1)(b) envisages that access might not be given and obligates the Auditor General to report such an eventuality. There must be some purpose for conveying such information to the House of Commons and one must assume that Parliament intended the House of Commons to exercise its judgment as to whether to seek the information its servant had not been able to secure on its behalf.
Support for the view that s. 7(1)(b) embodies a reporting remedy can be found in the French text of s. 7(1)(b). The English text reads " . . . whether . . . he received all the information and explanations he required" (emphasis added); the French version reads " . . . s'il a reçu [. . .] tous les renseignements et éclaircissements réclamés" (emphasis added). The French text clearly conveys the idea of the Auditor General having been denied information which he actively claimed or demanded and also serves to suggest that the word "required" in s. 7(1)(b) is not to be understood in the passive sense of "needed" but rather in the active sense in which it is used in s. 13(1) in the phrase "he is also entitled to require and receive . . . ". Thus, there is a linkage between s. 13(1) and s. 7(1)(b). Section 13(1) contains the entitlement while s. 7(1)(b) is the corresponding remedy. I do not think it accurate to conceive of s. 13(1) as itself a remedy, except in the attenuated sense of the statutory authority for the Auditor General's requests for information according to his own view of his entitlements. Once a dispute arises as to these s. 13(1) entitlements, the issue arises as to whether the courts should exercise inherent powers of judicial review to enforce that right or whether they should interpret the s. 7(1)(b) remedy as ousting that review --precisely the issue under discussion.
It is also worthwhile noting that not only s. 7(1)(b) and the paramountcy clause of s. 13(1) but also s. 7(2)(d) was added in 1977 when the Auditor General's rights and duties were consolidated into the Auditor General Act, for the first time: see Hugessen J., at pp. 433-37. It is not unreasonable to take this into account as being, at the very least, consistent with Parliament having designated itself as final arbiter of any disputes over the Auditor General's access to information, especially in view of the potential for both s. 7(2)(d) and the s. 13(1) paramountcy clause to receive expansive interpretations that could lead to de facto realignments in the balance of powers between Parliament and the executive.
Apart from the linkage between the asserted right and the statutory remedy, the extent to which the remedy is part of a comprehensive remedial code is also a relevant factor in determining whether the remedy is meant to be exclusive. Section s. 7(1)(b), so far discussed in isolation, is part of a set of interlocking remedies found in ss. 13 and 14, which I again produce for ease of reference:
ACCESS TO INFORMATION
13. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his responsibilities and he is also entitled to require and receive from members of the public service of Canada such information, reports and explanations as he deems necessary for that purpose.
(2) In order to carry out his duties more effectively, the Auditor General may station in any department any person employed in his office, and the department shall provide the necessary office accommodation for any person so stationed.
(3) The Auditor General shall require every person employed in his office who is to examine the accounts of a department or of a Crown corporation pursuant to this Act to comply with any security requirements applicable to, and to take any oath of secrecy required to be taken by, persons employed in that department or Crown corporation.
(4) The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him and for the purposes of any such examination the Auditor General may exercise all the powers of a commissioner under Part I of the Inquiries Act.
14. (1) Notwithstanding subsection (2) and (3), in order to fulfil his responsibilities as the auditor of the accounts of Canada, the Auditor General may rely on the report of the duly appointed auditor of a Crown corporation or of any subsidiary of a Crown corporation.
(2) The Auditor General may request a Crown corporation to obtain and furnish to him such information and explanations from its present or former directors, officers, employees, agents and auditors or those of any of its subsidiaries as are, in his opinion, necessary to enable him to fulfil his responsibilities as the auditor of the accounts of Canada.
(3) If, in the opinion of the Auditor General, a Crown corporation, in response to a request made under subsection (2), fails to provide any or sufficient information or explanations, he may so advise the Governor in Council, who may thereupon direct the officers of the corporation to furnish the Auditor General with such information and explanations and to give him access to those records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries access to which is, in the opinion of the Auditor General, necessary for him to fulfil his responsibilities as the auditor of the accounts of Canada.
Section 13(4) is the sole provision that gives the Auditor General access to coercive remedial powers, namely the powers of a commissioner under the Inquiries Act. He may go to court to enforce a subpoena issued under these powers. While no s. 13(4) issue arises in this case, I think it desirable to note that I cannot accede to the view advanced by Hugessen J., at p. 441, that the paramountcy clause of s. 13(1) should be read into s. 13(4) powers. Whatever that clause's effect vis-à-vis a s. 36.3 certificate would be if I were to interpret s. 13(1) as enforceable by the courts, it cannot affect how the courts must give effect to a s. 36.3 certificate under the Inquiries Act, which is incorporated by reference into s. 13(4).
The remedial provisions of s. 14 may be described as facilitative means by which the Auditor General may seek information from Crown corporations, such as Petro-Canada. By s. 14(1), the Auditor General may use the report of a Crown corporation's auditors as a source of information. Where, however, he wishes information beyond the report, he must make a request of the Crown corporation under s. 14(2). Section 14(3) clearly envisages that the Crown corporation may not provide the requested information and, in such a case, the Governor in Council may order the Crown corporation to comply with the Auditor General's request. If the Governor in Council declines to assist the Auditor General, as was the case here, the Auditor General's only recourse is the s. 7(1)(b) reporting remedy; once the s. 14 remedy ladder has been climbed, the only recourse left for the Auditor General is to report to the House of Commons under s. 7(1)(b) and leave the issue to be resolved politically. The Act would not seem to place any limitations upon the timing of a s. 7(1)(b) report in relation to the other remedies, apart from the implication that such reports would constitute a part of the Auditor General's annual report: see also s. 8 which provides for special reports on matters of pressing importance or urgency. The Auditor General can report on difficulties in obtaining information at any stage, including in the course of pursuing other remedies, and the House of Commons can act at any time, but, once ss. 13 and 14 remedies have been exhausted in relation to particular information, it is my view that only the s. 7(1)(b) reporting remedy is left.
I am in agreement with Heald J., at p. 422, to the effect that the presence of s. 14(3) is a persuasive indication that Parliament could not have intended s. 13(1) entitlements to be enforceable in the courts. If the Federal Court were to give access to information denied by Order-in-Council under s. 14(3), they would be doing indirectly what they are prohibited from doing directly by s. 28(6) of the Federal Court Act, that is, reversing a decision of the Governor in Council. Similar reasoning would seem to apply to the use of s. 13(4) to obtain information through oral testimony which had been refused by Order-in-Council under s. 14(3). Once the Auditor General chooses to seek recourse under s. 14(3), he is precluded from using the offices of the court to seek information denied thereunder. Such an interpretation makes practical sense as the examination of persons under oath under s. 13(4) would seem most useful either to learn about the existence of information, that can then be requested with the aid of s. 14, or to question persons about documents already obtained, including by means of s. 14.
In this case, it is reasonable to interpret s. 7(1)(b) as the Auditor General's only remedy for claimed denials of s. 13(1) entitlements not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy. The Auditor General is acting on Parliament's behalf carrying out a quintessentially Parliamentary function, namely, oversight of executive spending pursuant to Parliamentary appropriations. Where the exercise of this auditing function involves the Auditor General in a dispute with the Crown, this is in essence a dispute between the legislative and executive branches of the federal government. Section 7(1)(b) would seem to be the means by which Parliament itself retains control over the position it wishes to take in such a dispute.
It is of no avail to point to the fusion of powers which characterizes the Westminster system of government. That the executive through its control of a House of Commons majority may in practice dictate the position the House of Commons takes on the scope of Parliament's auditing function is not, with all respect to the contrary position taken by Jerome A.C.J., constitutionally cognizable by the judiciary. The grundnorm with which the courts must work in this context is that of the sovereignty of Parliament. The ministers of the Crown hold office with the grace of the House of Commons and any position taken by the majority must be taken to reflect the sovereign will of Parliament. Where Parliament has indicated in the Auditor General Act that it wishes its own servant to report to it on denials of access to information needed to carry out his functions on Parliament's behalf, it would not be appropriate for this Court to consider granting remedies for such denials, if they, in fact, exist.
The adequacy of the s. 7(1)(b) remedy must not be underestimated. A report by the Auditor General to the House of Commons that the government of the day has refused to provide information brings the matter to public attention. It is open to the Opposition in Parliament to make the issue part of the public debate. The Auditor General's complaint that the government has not been willing to provide all the information requested may, as a result, affect the public's assessment of the government's performance. Thus, the s. 7(1)(b) remedy has an important role to play in strengthening Parliament's control over the executive with respect to financial matters.
Before concluding, I wish to address the contention of the appellant that the Auditor General Act should be given the same liberal and purposive interpretation given to the Ombudsman Act, R.S.B.C. 1979, c. 306, in British Columbia Development Corp. v. Friedmann, Ombudsman, [1984] 2 S.C.R. 447. Hugessen J. accepted this contention when he said that had he had any doubt, which he did not have, he would have relied on Friedmann to find that s. 7(1)(b) was not the Auditor General's final remedy. In Friedmann, B.C.D.C. applied for an injunction against the Ombudsman on the grounds that the Act did not give him jurisdiction to investigate the provincial Crown corporation. The Ombudsman Act made clear that the Ombudsman was an "officer of the Legislature" to which he reported annually. The Act gave the Ombudsman wide investigative and remedial powers. Applying a liberal interpretative approach, this Court held that investigation of B.C.D.C. was within the Ombudsman's jurisdiction.
The sections of the Ombudsman Act which will assist in understanding the upcoming analysis are as follows:
2. (1) The Lieutenant Governor shall, on the recommendation of the Legislative Assembly, appoint as an officer of the Legislature an Ombudsman to exercise the powers and perform the duties assigned to him under this Act.
11. . . .
(3) Where a question arises as to the Ombudsman's jurisdiction to investigate a case or class of cases under this Act, he may apply to the Supreme Court for a declaratory order determining the question.
15. (1) The Ombudsman may receive and obtain information from the persons and in the manner he considers appropriate, and in his discretion may conduct hearings.
(2) Without restricting subsection (1), but subject to this Act, the Ombudsman may
(a)at any reasonable time enter, remain on and inspect all of the premises occupied by an authority, converse in private with any person there and otherwise investigate matters within his jurisdiction;
(b)require a person to furnish information or produce a document or thing in his possession or control that relates to an investigation at a time and place he specifies, whether or not that person is a past or present member or employee of an authority and whether or not the document or thing is in the custody or under the control of an authority;
(c)make copies of information furnished or a document or thing produced under this section;
(d)summon before him and examine on oath any person who the Ombudsman believes is able to give information relevant to an investigation, whether or not that person is a complainant or a member or employee of an authority, and for that purpose may administer an oath; and
(e)receive and accept, on oath or otherwise, evidence he considers appropriate, whether or not it would be admissible in a court.
(3) Where the Ombudsman obtains a document or thing under subsection (2) and the authority requests its return, the Ombudsman shall within 48 hours after receiving the request return it to the authority, but he may again require its production in accordance with this section.
. . .
17. Where the Attorney General certifies that the entry on premises, the giving of information, the answering of a question or the production of a document or thing might
(a)interfere with or impede the investigation or detection of an offence;
(b)result in or involve the disclosure of deliberations of the Executive Council; or
(c)result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest,
the Ombudsman shall not enter the premises and shall not require the information or answer to be given or the document or thing to be produced, but shall report the making of the certificate to the Legislative Assembly not later than in his next annual report.
18. (1) Subject to section 17, a rule of law that authorizes or requires the withholding of a document or thing, or the refusal to disclose a matter in answer to a question, on the ground that the production or disclosure would be injurious to the public interest does not apply to production of the document or thing or the disclosure of the matter to the Ombudsman.
(2) Subject to section 17 and to subsection (4), a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter shall not be required to supply any information to or answer any question put by the Ombudsman in relation to that matter, or to produce to the Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of confidentiality or nondisclosure.
(3) Subject to section 17 but notwithstanding subsection (2), where a person is bound to maintain confidentiality in respect of a matter only by virtue of an oath under the Public Service Act or a rule of law referred to in subsection (1), he shall disclose the information, answer questions and produce documents or things on the request of the Ombudsman.
(4) Subject to section 17, after receiving a complainant's consent in writing, the Ombudsman may require a person described in subsection (2) to, and that person shall, supply information, answer any question or produce any document or thing required by the Ombudsman that relates only to the complainant.
24. (1) If within a reasonable time after a request by the Ombudsman has been made under section 23 no action is taken that the Ombudsman believes adequate or appropriate, he may, after considering any reasons given by the authority, submit a report of the matter to the Lieutenant Governor in Council and, after that, may make such report to the Legislative Assembly respecting the matter as he considers appropriate.
(2) The Ombudsman shall attach to a report under subsection (1) a copy of his recommendation and any response made to him under section 23, but he shall delete from his recommendation and from the response any material that would unreasonably invade any person's privacy, and may in his discretion delete material revealing the identity of a member, officer or employee of an authority.
. . .
30. (1) The Ombudsman shall report annually on the affairs of his office to the Speaker of the Legislative Assembly, who shall cause the report to be laid before the Legislative Assembly as soon as possible.
(2) The Ombudsman, where he considers it to be in the public interest or in the interest of a person or authority, may make a special report to the Legislative Assembly or comment publicly respecting a matter relating generally to the exercise of his duties under this Act or to a particular case investigated by him.
In my view, there is no convincing analogy between Friedmann and the case at bar. The result reached in the Friedmann case was statute-specific, however liberal the interpretation was. There was no clearly comparable provision to that of s. 7(1)(b), but rather a range of powers that the Ombudsman could use against those resisting investigation, including s. 11(3) which expressly allowed the Ombudsman to apply for a declaratory order where a question as to his or her jurisdiction arose. Only s. 24 bore some similarity, providing that if the Ombudsman remained unsatisfied about implementation of a decision he had taken, he could report the matter to the Lieutenant Governor in Council and then to the Legislative Assembly. If the issue in Friedmann had been post-decision compliance and if the Ombudsman had been the one to seek judicial review, then the Court would have been faced with a similar issue as to whether s. 24 constituted an alternative remedy ousting judicial review.
Secondly, the same background considerations on the role of the Ombudsman are not present here. While acknowledging that the Auditor General fulfills a crucial function in the sphere of public accountability and thereby enhances our democratic system, the Auditor General does not play the same role as does an ombudsperson as protector of citizens against administrative abuse.
Also, there was no linkage in the Act in Friedmann comparable to that between s. 13(1) and s. 7(1)(b) for the Ombudsman's power to obtain information generally; rather, s. 15(2) revealed a wide range of powers that the Ombudsman could use. There is one important caveat in s. 17, whereby the Attorney General can produce a certificate to bar access to documents of the Executive Council or relating to investigation of an offence in which case "the Ombudsman shall not enter the premises and shall not require the information or answer to be given or the document or thing to be produced, but shall report the making of the certificate to the Legislative Assembly not later than in his next annual report." It must be recalled that no issue as to access to information arose in Friedmann and therefore that the following comments are merely by way of obiter comparison. When viewed in light of s. 18 of the Ombudsman Act, it is clear that the B.C. Legislature accorded to the Ombudsman wide powers of access to documentation and witnesses. The one place where access to information is linked to a duty to report to the legislature is for certified confidential information, which would suggest that the Ombudsman has no further recourse for this particular category of information. In the Auditor General Act, as seen above, s. 7(1)(b) is linked to the general provision concerning access to all information. The scheme of the Ombudsman Act is thus not the same as that of the Auditor General Act.
Finally, there is a much clearer issue of constitutional balance of powers in the case at bar than in Friedmann to the extent that the Auditor General's claim does amount to a claim both of the duty to evaluate under s. 7(2)(d) the substance of Cabinet and Parliamentary decisions which lead to Parliament's appropriation of funds and of the right of access to Cabinet documents that Members of Parliament, most notably members of the Opposition, do not currently have under the Rules and Procedures of the House of Commons. Acceptance of the Auditor General's interpretation of his s. 7(2)(d) duty and s. 13(1) right would result in a de facto shift in the constitutional balance of powers of the expenditure auditing process. Clearly, such a shift is statutorily contingent, but in the absence of a clearer expression of Parliamentary intention that the courts should decide the merits of the Auditor General's claims for an enhanced role and bolstered powers, I do not think it appropriate for the courts to assume that responsibility. The appropriateness of an enlarged mandate for the Auditor General is for Parliament, not the courts, to decide.
V. Conclusion
I am not unaware of the "fairly emphatic" statement made by me in Operation Dismantle, supra, in the context of Charter review, in which four other members of the Court joined, "I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts" (p. 459), but for the above reasons and in the circumstances, I am of the opinion that s. 7(1)(b) of the Auditor General Act is the only remedy the Auditor General has with regard to the claimed denial of his s. 13(1) rights of access to information. I cannot over-emphasize that this is not a Charter case.
It is not, therefore, necessary for me to deal with the substance of the contending interpretations of the Auditor General's rights and duties as they relate to s. 13(1) access to information. Nothing in the foregoing should be taken as prejudicing the right of the House of Commons to deal with a s. 7(1)(b) report as it sees fit. Further, the holdings in this case should be viewed as limited to the interpretation of a unique statute as informed by the particular role played by the Auditor General. The above analysis shall not be taken to detract from the fundamental principle that the courts should not readily decline to grant remedies for rights recognized by the laws of Canada.
In the result, I would dismiss the appeal and affirm the judgment of the majority in the Federal Court of Appeal setting aside the judgment of the Trial Division and dismissing the action with costs. Costs before this Court are also awarded against the appellant.
Appeal dismissed with costs.
Solicitors for the appellant: Gowling & Henderson, Ottawa.
Solicitor for the respondents: The Deputy Attorney General of Canada, Ottawa.