Decision under section 31, 2022 OIC 10
Summary
The Information Commissioner rejected a complaint as it did not meet the requirements of section 31 of the Access to Information Act.
Section 31 specifies, among other things, that: “If the complaint relates to a request by a person for access to a record, it shall be made within sixty days after the day on which the person receives a notice of a refusal under section 7, is given access to all or part of the record or, in any other case, becomes aware that grounds for the complaint exist.”
The word “shall” in various provisions throughout the Act has consistently been interpreted as imposing a mandatory obligation. (see for example: Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 FC 164; Canada (Information Commissioner) v. Canada (Minister of Industry), 2007 FCA 212).
This interpretation is also consistent with section 11 of the Interpretation Act, R.S.C., 1985, c. I-21, which specifies that: “The expression “shall” is to be construed as imperative and the expression “may” as permissive.”
In the present instance, the complainant confirmed that they received the response from the institution to their request in October 2021. The institution’s response included a notice that the complainant was entitled to complain to the Information Commissioner concerning the processing of their request within sixty days of the receipt of the response. The complaint was submitted in January 2022 and was therefore made after the expiration of the legislative timeframe to file a complaint.
The Information Commissioner does not have the authority to receive and accept complaints submitted after the expiration of a statutory timeframe. In Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, the Federal Court of Appeal made clear that no provision within the Act confers power on the Information Commissioner to extend the time frames set out in the Act (paragraph 46).
Accordingly, the Information Commissioner did not accept the complaint as it was submitted outside the legislative timeframe set out in section 31.