Section 21: Advice and recommendations

Preliminary Matters

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

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

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

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

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

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

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

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

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

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

2) Paragraph 21(1)(a):

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

 

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

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

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

Subsection 21(1) was not intended to exempt all communications between public servants despite the fact that many communications can be viewed as advice or recommendations. The purpose of the exemption is to protect the free flow of advice and recommendations within the deliberative process of government decision-making and policy-making 1 - i.e., where to disclose the information at issue would cause an adverse effect.You must look at the record itself and in context to determine its true nature.

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

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

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

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

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

i) What was the intention of the author/sender of the information? Is it clear on a balance of probabilities that a reasonable person would conclude:

• that the sender was (in fact) giving advice/making a recommendation; and
• that what (information) constitutes the advice/recommendation is clear:

ii) The recipient would conclude that he/she was being given advice and/or receiving a recommendation:

• that the sender was (in fact) giving advice/making a recommendation; and
• that what information constitutes the advice would be clear.

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

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

iii) The exemption provided by this paragraph applies to advice and recommendations developed:

• by a government institution - i.e., by officials of a Schedule I institution;
• by a Minister of the Crown or by his staff;
• for a government institution (in Schedule I);
• for a Minister - i.e., by his staff or officials.

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

iv) Examples of documents that constitutes advice or a recommendation:

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

v) Examples of documents that do not constitute advice or a recommendation:

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

3) Paragraph 21(1)(b)

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

a) A government institution must be involved: To that effect, section 3 of the Act defines 'government institution' as:

• "Any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I".

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

b) Government people must be involved:

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

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

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

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

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

d) The consultations or deliberations must involve at least two or more of the following persons:

• officials or employees of a government institution;
• a Minister; or
• the staff of a Minister.

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

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

 

4) Paragraph 21(1)(c):

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

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

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

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

5) Paragraph 21(1)(d):

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

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

6) Subsection 21(2):

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

a) The first is set out in paragraph 21(2)(a) which prevents the application of subsection 21(1) to:

• "an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person".

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

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

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

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

The following summarizes the application of the override:

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

b) The second situation in which the exemption provided by subsection 21(1) cannot be claimed is set out in paragraph 21(2)(b) which prevents the application of subsection 21(1) to:

• "A report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a Minister of the Crown."

The following summarizes the application of the override:

i) The information must be a report:

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Table of Authorities

Canada

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

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

Ontario

Orders # 99, 118, 172.

Quebec

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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