On December 22, 2009, Commissioner Christiane Constant handed down a very interesting decision on the requirement of representation by advocate in the context of an access to information application, an application to review a refusal and the hearing, i.e. Hydro-Québec v. W.L., 2009 QCCAI 287.

W.L. is a researcher-journalist who specializes in obtaining information through access to information mechanisms applicable to public organizations.

On February 19, 2008, he sent an access to information application for various documents to Hydro-Québec.

On March 20, 2008, the person in charge of access to information replied that she refused to provide the requested documents and mentioned incidentally the possibility of requesting that the Commission d’accès à l’information disregard the application, as processing it could seriously interfere with the body's activities (see R.S.Q. c. A-2.1, S. 137.1).

On April 8, 2008, W.L. filed an application for review of this decision before the Commission d’accès à l’information.

At the hearing for the review application, Hydro-Québec’s attorney presented two preliminary arguments to dismiss the action based on W.L.’s lack of legal representation when filing the review application and at the hearing, as W.L was acting as representative of a legal person (Newspaper A), as appears from paragraph 9 of the decision:

[TRANSLATION] [9] Mtre Moudfir raises a preliminary argument, indicating that the access to information application that Respondent filed with Petitioner is made on behalf of Newspaper A (the company). Respondent is alone at the hearing and nothing indicates that he has legal representation. The company being a legal person, it must be represented by an advocate. Mtre Moudfir therefore requests that the Commission use its authority under section 137.2 of the Act respecting access and cease examining the matter or declare that its intervention would clearly serve no purpose.

Hydro-Québec presented the following as evidence concerning W.L. (the facts are uncontested):

a) An Internet check revealed that W.L. works regularly for Newspaper A; b) The contact information provided on W.L.’s access application corresponded to the address of Newspaper A’s Ottawa offices; c) The access application was sent by fax from the Ottawa offices of Newspaper A; d) The fax machine’s cover page stated that W.L. works as a researcher.

From these facts, Hydro-Québec affirmed that W.L. was acting on behalf of Newspaper A and that, according to section 128 of the Act respecting the Barreau du Québec, the latter must be represented by an advocate both for the review application and at the hearing before the Commission d’accès à l’information. Legal persons must be represented by an advocate during judicial proceedings, as this is the exclusive prerogative of this profession.

Commissioner Constant found, from the evidence presented by Hydro-Québec, that W.L. filed an application on behalf of a legal person, Newspaper A. Consequently, article 61 of the Code of Civil Procedure and article 128 of the Act respecting the Barreau du Québec, which restrict the representation of other parties to advocates, render Newspaper A’s review application and the hearing before the Commission d’accès à l’information, both brought by W.L., inadmissible.

This decision comes as a reminder to legal persons of the requirement of representation by advocate, not only for hearings before the Commission d’accès à l’information, but also in the initial stages of applications to review decisions made by public organizations.

This decision will likely have an impact on the number of review applications that will be brought before the Commission d’accès à l’information by journalists, for whom it is common practice to attempt to obtain documents through the access provided for by the Act respecting access to documents held by public bodies and the protection of personal information.

Although this decision has not been appealed, it would not be surprising if this issue were to resurface in the Court of Québec.