Letter to the President of the Treasury Board (March 2025)
March 7th, 2025
The Honorable Ginette Petitpas Taylor, P.C., M.P.
President of the Treasury Board
House of Commons
Ottawa, Ontario
K1A 0A6
Dear President,
I am writing to you to convey my concerns regarding a matter that falls within your responsibilities – the response, or lack thereof – by institutions to orders I have been issuing under the Access to Information Act – an act administered by the Treasury Board Secretariat.
As Information Commissioner of Canada, my goal is to ensure the right of access is respected by institutions in the most efficient way. Since 2019, I have had the power to make any order I consider appropriate in well-founded complaints. It is important to note that 95% of the thousands of complaints made to my office are concluded without resorting to orders and that I only make orders where they are necessary to resolve the matters at issue.
Unfortunately, while my orders are legally binding, in a few instances certain institutions have elected to neither implement them nor exercise their right to apply to the Federal Court for a review. They are in effect ignoring them. I have therefore had no choice but to apply for a writ of mandamus asking the Federal Court to ensure that these institutions complied with my orders. Of eight such applications I have made so far, six have been made against the Minister of National Defence including twice in the last month. Having to resort to legal proceedings to compel institutions to comply with orders lawfully issued in this manner should not be required and is contrary to the Act.
It is unfortunate that I am increasingly called upon to initiate these expensive and time-consuming legal proceedings. I consider this both a waste of scarce judicial resources and a needless expenditure of both my financial and human resources and those of the institution subject to the order, not to mention the resources of the Justice department that must represent most of them. Sadly, this scenario should have been foreseen. Before order-making powers were added to the Act, I had suggested measures to ensure compliance, but I was told that such amendments were unnecessary. In fact, as one of your predecessors noted in his testimony before a senate committee in 2018, if the use of the mandamus power proved to be less effective in terms of strengthening my powers, changes could be considered during the review process. (Standing Senate Committee on Legal and Constitutional Affairs (42nd Parliament, 1st Session)
While strengthening the order-making power through legislation will be raised at the next legislative review, in the meantime, it would be in our mutual interest to put to a stop to incidences of disregarding these orders. For the sake of the federal access to information system’s credibility, I would respectfully ask that you re-issue clear and unequivocal guidance to institutions subject to the Act concerning their legal obligations and responsibilities, including complying with my orders or otherwise applying for a review.
As I previously indicated in my letter of January 14th, 2025, if you would like to discuss this or any other matter in greater detail, I will be happy to have my staff arrange a meeting or a call with you at your earliest convenience.
Sincerely,
Caroline Maynard
Information Commissioner of Canada
c.c.:
Bill Matthews, Secretary of the Treasury Board of Canada
Shalene Curtis-Micallef, Deputy Minister and Deputy Attorney General of Canada,
Department of Justice
Stefanie Beck, Deputy Minister, Department of National Defence