I decided I would proceed on a step-by-step basis with respect to the order-making power for all complaints. First of all, there is a gap in the legislation regarding administrative complaints. There is a lack of clarity. The commissioner may make recommendations but does not act upon them, except for a public censure for non-performance.
Complaints regarding refusals are part of a very different dynamic within the legislation. In jurisdictions where order-making powers are absolute for all complaints, there is increased reliances on the courts. For example, the commissioner in Alberta faces the greatest number of court cases regarding the orders made. The Federal Court of Appeal has served Canadians well—both requesters and the government. We should not throw out the baby with the bathwater. This recourse in case law should continue. This involves a public discussion of the issue, rather than an order by the commissioner on a specific point which remains private under the act until all the steps in the procedure are completed.