ARCHIVED - InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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Chairman of Canadian Cultural Property Export Review Board v. Information Commissioner of Canada
Indexed as: Canada (Information Commissioner) v. Canada
(Canadian Cultural Property Export Review Board)

File No.:	A-633-01
Reference:	[2002] F.C.J. No. 124 (QL) (F.C.A.)
Date of decision:	April 25, 2002
Before:	Strayer, Décary and Rothstein JJ.A.
Section(s) of ATIA / PA:	S. 19 Access to Information Act (ATIA); s. 3(l)Privacy Act (PA)

Abstract

• Appeal from order to disclose documents
• Documents related to tax credit certificate
• Information in public domain
• Appel moot

Issues

Was the appeal moot because documents were disclosed after the Crown lost a motion for a stay pending appeal and/or because the information was publicly disclosed during a press conference?

Did Rouleau J. err by deciding that this information fell within the exception provided for in para. 3(l) of the Privacy Act?

Did Rouleau J. err in his interpretation of s. 241 of the Income Tax Act (that the information is not "taxpayer information")?

Facts

This was a motion by the Information Commissioner to have the appeal brought by the Board against the decision of Rouleau J. dismissed for mootness. Rouleau J. ordered the disclosure of 13 documents related to a tax credit certificate issued to Mr. Mel Lastman.

Mel Lastman was the former Mayor of the City of North York. He donated a series of documents, papers, speeches, photographs and minutes of meetings. The municipal authorities that received the donation contacted the Canadian Cultural Property Export Review Board (CCPERB) in order for the CCPERB to determine if the documents had archival value and met the criteria to be certified as a donation.

The Board determined that the material met the criteria, determined the fair market value of the donation and issued a cultural property income tax certificate in the form required by the Canada Customs and Revenue Agency. The certificate resulted in a tax credit in the amount of $55,000.

The access to information request was for the documents related to the issuance of the tax certificate.

The Trial Division Judge ((2001), 15 C.P.R. (4th) 74) decided that the documents requested fell under the exception to the definition of "personal information" in para. 3(l) of the Privacy Act (discretionary benefit of a financial nature). The Judge also concluded that the information was not "taxpayer information" as defined in s. 241 of the Income Tax Act. He further decided that the information in the documents requested had been disclosed publicly by Mr. Lastman himself during a press conference. Because of this, the Judge ruled that the information must be disclosed by virtue of it being publicly available within the meaning of para. 19(2)(b) of the ATIA.

Decision

The motion was granted and the appeal dismissed.

Reasons

Issue 1
The reason the appeal was dismissed was because the Court of Appeal decided the appeal was moot. The reason for mootness was because the contents of the documents in question were held to be in the public domain. While the Application Judge cited other possible reasons for denying protection from disclosure, the Court of Appeal found that the central ground used by the Application Judge was that the information was already publicly available. In arriving at the conclusion that the documents were publicly available, the Court of Appeal noted that the Application Judge had made that a finding of fact and that the Crown had failed to obtain a stay of the order from the Trial Division and had subsequently released the documents to the requester pending the hearing of the appeal.

Once a finding of mootness was determined, the Court nevertheless had the option to exercise its discretion and hear the matter. However, the Court held that it would be an uneconomical use of judicial resources to ruminate further the issues on appeal since reasons other that the publicly available nature of the information were not determinative of Justice Rouleau's order.

Issue 2
The issue of whether or not the Trial Judge properly applied para. 3(l) was not determined. However, the Court did indicate that any reasons cited by Rouleau J. were not determinative of the result unless the reasons related to the central ground that the information was publicly available.

Issue 3
The issue of whether or not the trial judge properly interpreted s. 241 of the Income Tax Act was not determined. However, the Court did indicate that any reasons cited by Rouleau J. were not determinative of the result unless the reasons related to the central ground that the information was publicly available.

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