InfoSource Bulletin 2003 - Privacy Act and Access to Information Act
Bulletin Number 26
December 2003
Table of Contents
Statistical Tables 2002–2003 Access to Information
Statistical Tables 2002–2003 Privacy
Statistical Tables 1983–2003 Access to Information
Statistical Tables 1983–2003 Privacy
Access to Information and Privacy Coordinators
Introduction
Note: This Bulletin is in large print to assist persons with visual disabilities.
Info Source: Access to Information Act and Privacy Act Bulletin
This annual Info Source Bulletin contains summaries of federal court cases and statistics of requests made under the Access to Information Act and the Privacy Act.
Information on the Government of Canada
1 800 O-Canada
As the Government of Canada's bilingual, toll-free service, 1 800 O-Canada provides general information and referrals for programs and services.
Canada Business Service Centres
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Toll-free |
1-888-576-4444 |
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Web Site |
There are currently 13 centres that provide bilingual, toll-free information related to business, starting a business or programs, services or regulations related to business. These Centres are able to answer both federal and provincial questions.
Canada Site
The Canada Site provides Internet users with a single electronic access point to general information about Canada, the federal government and its programs and services. The Canada Site features three gateways to quickly access information: Canadians, Canadian Business and Non-Canadians. These gateways organize content around the needs of users rather than by departmental responsibility.
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Toll-free |
1 800 O-Canada (1-800-622-6232) |
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TTY/TDD |
1-800-465-7735 |
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Web Site |
About Info Source
In accordance with the Access to Information Act, Treasury Board is responsible for the annual creation and dissemination of a publication that provides a description of government organizations, program responsibilities and classes of records with sufficient clarity and detail to enable the public to exercise its rights under the Access to Information Act.
Treasury Board is also responsible for the annual publication of an index of personal information that will both serve to keep the public information of how the government handles personal information, as well as facilitating the public's ability to exercise its rights under the Privacy Act. Treasury Board Secretariat fulfils these requirements through the annual publication of Info Source that is comprised of the following publications:
Sources of Federal Government Information
This publication describes the organization and its information holdings
Sources of Federal Employee Information
This publication lists the personal information banks containing information
related to federal employees
Directory of Federal Government Enquiry Points
This publication contains contact information for federal departments
and agencies
Access to Information Act and Privacy Bulletin
This publication contains summaries of federal court cases and statistics
of requests made under the ATIA and PA.
Info Source is distributed to libraries, municipal offices and federal government offices across Canada.
Responsibilities of Individual Institutions
Government institutions are required to provide their information to Treasury Board Secretariat on an annual basis. This information is utilized in the production of the publications required by the Access to Information Act and Privacy Act. Consequently, each department and agency is responsible for the information it submits.
Additional Information
For more information about Info Source, the Access to Information Act or the Privacy Act, you may contact:
Treasury Board of Canada Secretariat
Government Operations Sector
L'Esplanade Laurier, 8th Floor, East Tower
140 O'Connor Street, Ottawa, Ontario K1A 0R5
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General Enquiries |
(613) 957-2400 |
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Fax |
(613) 996-0518 |
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TTY |
(613) 957-9090 |
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To order Publications |
(613) 995-2855 |
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General Library Reference |
(613) 996-5494 |
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Web Site |
For more information about Info Source or related publications, you may contact:
Treasury Board of Canada Secretariat Distribution Centre
L'Esplanade Laurier, Room P-140, Level P-1W
300 Laurier Avenue West, Ottawa, Ontario K1A 0R5
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Telephone |
(613) 995-2855 |
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Fax |
(613) 996-0518 |
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If you would like to purchase a copy of one of the Info Source publications, please contact:
Canadian Government Publishing
Communication Canada
Ottawa, Ontario K1A 0S9
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Telephone |
(819) 956-4800 |
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Toll-free (Canada only) |
1-800-635-7943 |
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Fax |
(819) 994-1498 |
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Toll-free |
1-800-565-7757 |
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Web Site |
Info Source is also available on the Web at: infosource.gc.ca
Statistical Tables 2002–2003
Access to Information
Access to Information Requests - 2002–2003
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Requests received during this reporting period |
22,977 |
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Requests brought forward from previous reporting period |
3,301 |
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Total number of requests |
26,278 |
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Requests completed |
22,125 |
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Requests carried forward to next reporting period |
4,153 |
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Disposition of completed requests
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Requests where all information was disclosed |
29.6% |
6,543 |
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Requests where some information was disclosed |
40.9% |
9,041 |
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Requests where information was excluded |
0.4% |
89 |
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Requests where information was exempted |
2.5% |
560 |
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Requests transferred to another institution |
1.7% |
376 |
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Requests where information was given informally |
1.8% |
409 |
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Requests which could not be processed |
23.1% |
5,107 |
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Total |
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22,125 |
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Access to Information - 2002–2003
Source of Requests
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Requests received by Businesses |
45.0% |
10,330 |
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Requests received by the Public |
29.6% |
6,802 |
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Requests received by Organizations |
13.4% |
3,078 |
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Requests received by the Media |
11.1% |
2,556 |
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Requests received by Academics |
0.9% |
211 |
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Total Requests received |
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22,977 |
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|
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Access to Information - 2002–2003
Institutions ranked in "Most Requests Received" order
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1) |
Citizenship and Immigration Canada |
32.4% |
7,444 |
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2) |
Health Canada |
5.9% |
1,367 |
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3) |
National Archives of Canada |
5.8% |
1,340 |
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4) |
Canada Customs and Revenue Agency |
5.8% |
1,337 |
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5) |
National Defence |
5.7% |
1,316 |
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6) |
Public Works and Government Services |
4.1% |
946 |
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7) |
Transport Canada |
2.8% |
641 |
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8) |
Environment Canada |
2.6% |
598 |
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9) |
Royal Canadian Mounted Police |
2.6% |
594 |
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10) |
Foreign Affairs and International Trade Canada |
2.3% |
529 |
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11) |
Other Departments |
30.0% |
6,865 |
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Total |
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22,977 |
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Access to Information - 2002–2003
Time Required to Complete Requests
(including requests for which extensions were required)
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0 – 30 days |
69.0% |
15,272 |
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31 – 60 days |
12.9% |
2,842 |
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61 – 120 days |
10.2% |
2,266 |
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121 days or over |
7.9% |
1,745 |
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Total |
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22,125 |
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|
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Access to Information - 2002–2003
Extension Time Required
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30 days or under |
31 days or over |
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Searching |
758 |
1,078 |
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Consultation |
1,945 |
1,280 |
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Third Party Tiers |
253 |
1,186 |
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Access to Information - 2002–2003
Exemptions
It should be noted that a single Request can be indicated as being exempted for multiple reasons. All such exemptions must be reported.
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Section 19 - Personal information |
32.6% |
7,030 |
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Section 20 - Third party information |
18.8% |
4,045 |
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Section 21 - Operations of government |
16.4% |
3,541 |
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Section 16 - Law enforcement and investigations |
8.6% |
1,863 |
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Section 15 - International affairs and defence |
7.0% |
1,511 |
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Section 13 - Information obtained in confidence |
5.1% |
1,103 |
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Section 23 - Solicitor-client privilege |
4.2% |
907 |
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Section 24 - Statutory prohibitions |
2.1% |
451 |
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Section 18 - Economic interests of Canada |
2.1% |
442 |
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Section 14 - Federal-provincial affairs |
2.0% |
441 |
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Section 22 - Testing procedures |
0.4% |
84 |
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Section 26 - Information to be published |
0.4% |
77 |
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Section 17 - Safety of individuals |
0.3% |
60 |
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Total |
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21,155 |
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Access to Information - 2002–2003
Exclusions
It should be noted that a single Request can be indicated as being excluded for multiple reasons. All such exclusions must be reported.
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Section 69(1)(g) |
35.9% |
538 |
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Section 69(1)(a) |
26.9% |
402 |
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Section 69(1)(e) |
14.4% |
216 |
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Section 68(a) |
6.9% |
103 |
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Section 69(1)(d) |
6.7% |
100 |
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Section 69(1)(c) |
5.1% |
77 |
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Section 69(1)(f) |
2.7% |
41 |
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Section 68(b) |
.73% |
11 |
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Section 69(1)(b) |
.47% |
7 |
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Section 68(c) |
.13% |
2 |
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Total |
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1,497 |
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Access to Information - 2002–2003
Costs and Fees for Operations
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Requests completed |
22,125 |
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Cost of operations |
$25,396,956.00 |
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Cost per completed request |
$1,148.00 |
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Fees collected |
$282,285.00 |
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Fees collected per completed request |
$12.76 |
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Fees waived |
$146,377.00 |
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Fees waived per completed request |
$6.62 |
Statistical Tables 2002–2003
Privacy
Privacy Requests - 2002–2003
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Requests received during this reporting period |
37,863 |
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Requests brought forward from previous reporting period |
2,944 |
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Total number of requests |
40,807 |
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Requests completed |
36,542 |
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Requests carried forward to next reporting period |
4,265 |
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|
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Disposition of completed requests
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Requests where all information was disclosed |
45.9% |
16,754 |
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Requests where some information was disclosed |
37.3% |
13,623 |
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Requests where information was excluded |
0.1% |
49 |
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Requests where information was exempted |
1.2% |
437 |
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Requests transferred to another institution |
2.8% |
1,022 |
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Requests unable to b processed (Reasons include insufficient information provided by applicant, no records exist and abandonment by applicant) |
12.7% |
4,657 |
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Total |
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36,542 |
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Privacy - 2002–2003
Institutions ranked in "Most Requests received" order
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1) Human Resources Development Canada |
21.2% |
8,034 |
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2) Correctional Service Canada |
17.7% |
6,685 |
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3) Citizenship and Immigration Canada |
12.7% |
4,812 |
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4) National Defence |
11.5% |
4,338 |
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5) National Archives of Canada |
8.5% |
3,230 |
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6) Other Departments |
28.4% |
10,764 |
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|
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Privacy - 2002–2003
Time Required to Complete Requests
(including requests for which extensions were required)
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0 – 30 days |
74.2% |
27,104 |
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31 – 60 days |
16.7% |
6,122 |
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61 – 120 days |
5.4% |
1,952 |
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121 or over |
3.7% |
1,364 |
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|
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Privacy - 2002–2003
Exemptions
It should be noted that a single Request can be indicated as being exempted for multiple reasons. All such exemptions must be reported.
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Section 26 - Information about another individual |
63.0% |
12,386 |
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Section 22 - Law enforcement and investigation |
19.0% |
3,743 |
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Section 19 - Personal information obtained in confidence |
9.1% |
1,794 |
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Section 24 - Individuals sentenced for an offence |
4.1% |
810 |
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Section 27 - Solicitor client privilige |
2.2% |
436 |
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Section 21 - International Affairs and defence |
1.7% |
323 |
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Section 18 - Exempt banks |
0.4% |
76 |
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Section 23 - Security clearances |
0.2% |
42 |
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Section 25 - Safety of individuals0 |
.2% |
34 |
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Section 28 - Medical records |
0.1% |
25 |
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Section 20 - Federal provincial affairs |
0.0% |
1 |
|
|
||
Privacy - 2002–2003
Exclusions
It should be noted that a single Request can be indicated as being excluded for multiple reasons. All such exclusions must be reported.
|
Section 70(1)(a) |
42.6% |
3 |
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Section 70(1)(e) |
28.6% |
2 |
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Section 70(1)(c) |
14.3% |
1 |
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Section 70(1)(f) |
14.3% |
1 |
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Section 69(1)(a) |
0% |
0 |
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Section 69(1)(b) |
0% |
0 |
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Section 70(1)(b) |
0% |
0 |
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Section 70(1)(d) |
0% |
0 |
|
|
||
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Total |
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7 |
|
|
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Privacy - 2002–2003
Costs and Fees for Operations
|
Requests completed |
36,542 |
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Cost of operations |
$14,831,152.00 |
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Cost per request completed |
$406.00 |
Statistical Tables 1983–2003
Access to Information
Access to Information - 1983–2003
Disposition of Requests
|
Requests received |
230,139 |
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Requests completed |
224,295 |
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|
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Disposition of completed requests
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Requests where all information was disclosed |
34.2% |
76,900 |
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Requests where some information was disclosed |
36.1% |
80,936 |
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Requests where information was excluded |
0.6% |
1,238 |
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Requests where information was exempted |
3.1% |
6,940 |
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Requests transferred to another institution |
1.9% |
4,204 |
|
Requests where information was given informally |
4.2% |
9,487 |
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Requests which could not be processed (Reasons include insufficient information provided by applicant, no records exist and abandonment by applicant) |
19.9% |
44,590 |
|
|
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Access to Information - 1983–2003
Time Required to Complete Requests
(including requests for which extensions were required)
|
Requests completed |
100.0% |
224,295 |
|
0 – 30 days |
59.6% |
133,682 |
|
31 – 60 days |
17.1% |
38,280 |
|
61 + days |
23.3% |
52,333 |
|
|
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Access to Information - 1983–2003
Costs and Fees for Operations
|
Requests completed |
224,295 |
|
Cost of operations |
$212,580,762.00 |
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Cost per request completed |
$948.00 |
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Fees collected |
$3,139,856.00 |
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Fees collected per request completed |
$13.99 |
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Fees waived |
$1,380,865.00 |
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Fees waived per request completed |
$6.15 |
Statistical Tables 1983–2003
Privacy
Privacy - 1983–2003
Disposition of Requests
|
Requests received |
878,216 |
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Requests completed |
872,253 |
|
|
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Disposition of completed requests
|
Requests where all information was disclosed |
54.8% |
477,874 |
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Requests where some information was disclosed |
29.2% |
254,717 |
|
Requests where information was excluded |
0.0% |
218 |
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Requests where information was exempted |
0.8% |
7,329 |
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Requests which could not be processed (by reasons such as insufficient information provided by applicant, no records exist and abandonment by applicant) |
15.2% |
132,115 |
|
|
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Privacy - 1983–2003
Time Required to Complete Requests
(including requests for which extensions were required)
|
Requests completed |
100.0% |
872,251 |
|
0 – 30 days |
57.1% |
497,964 |
|
31 – 60 days |
19.0% |
165,825 |
|
61 + days |
23.9% |
208,462 |
|
|
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Privacy - 1983–2003
Costs and Fees for Operations
|
Requests completed |
872,253 |
|
Cost of operations |
$165,347,043.00 |
|
Cost per completed request |
$190.00 |
Federal Court Cases
Prepared by the
Information Law and Privacy Section,
Department of Justice
Air Transat A.T. Inc. v. Transport Canada Indexed as: Air Transat A.T. Inc. v. Canada (Transport)
Ruby v. Canada (Solicitor General) Indexed as: Ruby v. Canada (Solicitor General)
Ken Rubin v. Minister of Health Indexed as: Rubin v. Canada (Minister of Health)
Dzevad Cemerlic v. Solicitor General of Canada Indexed as: Cemerlic v. Canada (Solicitor General)
Air Transat A.T. Inc. v. Transport Canada
Indexed as: Air Transat A.T. Inc. v. Canada (Transport)
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File No.: |
T-307-00 |
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References: |
[2001] F.C.J. No.108 (QL) (F.C.T.D.) |
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Date of decision: |
January 30, 2001 |
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Before: |
Rouleau J. |
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Sections(s) of the ATIA / PA: |
S. 20(1)(b), (c) Access to Information Act (ATIA) |
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Abstract
- Confidentiality of information contained in an inspection report
- Terms of affidavits too general
Issue
Do paras. 20(1)(b) and (c) of the ATIA apply to the record?
Facts
The respondent inspected the applicant's aircraft in November 1998 and wrote an inspection report in 1999. The applicant was informed in November 1999, that an access to information request had been filed. The applicant then informed the respondent that one part of the information in the assessment report of 1999 should not be disclosed because of the application of s. 20 of the ATIA. On January 28, 2000, the respondent informed the applicant that only the information protected under subs. 19(1) and para. 20(1)(d) would not be disclosed.
The applicant filed an application for judicial review pursuant to s. 44 of the ATIA following this decision. The applicant is arguing that certain portions in the report should not be disclosed in accordance with paras. 20(1)(b) and (c) of the ATIA.
Decision
The application for judicial review is allowed in part.
Reasons
Paragraph 20(1)(b) ATIA
At first, the Court dismissed the respondent's argument that the report did not
meet the objective confidentiality criteria because it is a government record.
It is not enough that a record be considered a government record subject to
the ATIA to find that the record's contents cannot fall within the
exemption provided in para. 20(1)(b). When there is a request for access to an
inspection report, the party arguing the exemption under the Act must prove the
confidentiality of the information originally provided, as well as demonstrate
the continued confidentiality of the information.
In other words, it must demonstrate that the information was confidential when it was given to inspectors and that it must remain confidential throughout the entire inspection process, which includes information in the final report. This must be demonstrated by producing direct evidence.
In the present case, Justice Rouleau found that the four criteria for the application of para. 20(1)(b) were satisfied: (1) the report contains technical information (information on methods of operation written in the Maintenance Control Manual); (2) the report contains several copies of documents provided by the applicant; (3) the report contains confidential information, at least, as specified by Rouleau J., with respect to the documents provided by the applicant; and (4) there is no doubt about the consistent confidentiality of the documents provided by the applicant.
Justice Rouleau proceeded to prepare a table listing the outcome of the information at issue. The information, which consists of observations made by the inspectors, information which is no longer being challenged or which is a directive of the respondent, must be disclosed. However, the applicant's aircraft registration numbers do not have to be disclosed.
Paragraph 20(1)(c) ATIA
The applicant invoked the exemption under para. 20(1)(c) of the ATIA.
According to the applicant, the disclosure of incidents indicating that the
applicant did not entirely comply with the regulatory requirements could
[translation] "irreparably harm the image of Air Transat A.T. Inc., and this
would have an immediate effect on its good will".
The Court believes that the affidavits that were prepared were too general and that the applicant did not meet the necessary burden of proof in the application of para. 20(1)(c). The Court said the following:
[Translation]
[...] showing that a reasonable expectation of probable harm exists requires more than mere general allegations of the type contained in the affidavits filed by the plaintiff. In the case at bar, there is no evidence of the extent of the harm anticipated. Further, the plaintiff gave no indication of the link between the information and the harm described.
Comments
The appeal from the Trial Division decision (2002 FCA 404, A-112-01, judgement dated October 22, 2002) was allowed in part. No portion of the inspection report was protected under para. 20(1)(c). The aircraft numbers and/or flight numbers did not fall within the para. 20(1)(c) exemption.
PricewaterhouseCoopers, LLP v. Minister of Canadian
Heritage
Indexed as: PricewaterhouseCoopers, LLP v. Canada
(Minister of Canadian Heritage)
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File No.: |
T-1785-99 |
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Reference(s): |
[2001] F.C.J. No. 1439 (QL) (F.C.T.D.) |
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Date of decision: |
September 20, 2001 |
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Before: |
Campbell J. |
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Section(s) of ATIA / PA: |
Ss. 20(1), 44 Access to Information Act (ATIA) |
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Abstract
- Third party information
- Trade secrets; technical and commercial information
- Confidentiality clause
- Proprietary methodologies and analysis used in preparation of reports
- Whether reports of a "technical nature" so as to meet definition of trade secret
Issue
Whether the two reports produced by the applicant are records that fall within paras. 20(1)(a), (b), and (c) of the ATIA.
Facts
In 1998, Canadian Heritage contracted the applicant's services for the purpose of reviewing, analysing and recommending changes to its documents being used to contract out or "outsource" elements of its work. The applicant claimed that the concern for confidentiality of the two reports produced was a fundamental feature of the relationship. In carrying out the contract, the applicant used such proprietary tools as its "Alternate Service Delivery" ("ASD") methodology developed by it over a period of time.
The applicant brought an application pursuant to s. 44 of the ATIA after Canadian Heritage made the decision to disclose the two reports as a result of an access request. The applicant claimed that the two reports were records to which subs. 20(1) of the ATIA applies. In support of its application, Price Waterhouse filed two affidavits outlining, in detail, the nature of the proprietary information involved and how the disclosure of such information would prejudice its competitive position. It claimed that disclosure of the reports would allow a competitor to reverse-engineer or work deductively to determine the means and analysis Price Waterhouse uses in its ASD assignments. Competitors could then improve or modify their own methodology based on Price Waterhouse's approach. Included in the evidence were copies of each of the reports in question which made it clear that the information contained therein was of a confidential technical nature, that it was supplied to Canadian Heritage on that basis and that the disclosure of that information could harm the applicant's competitive position and/or materially interfere with ongoing or future contract/tender negotiations.
Decision
The application was allowed with costs to be determined. Canadian Heritage was ordered not to disclose the two reports.
Reasons
Paragraph 20(1)(a)
The Court applied the definition of "trade secret" as set out by Strayer
J. in Société Gamma Inc. v. Canada (Department of Secretary of State)
(1994), 56 C.P.R. (3d) 58 (F.C.T.D.) at p. 62:
I am of the view that a trade secret must be something, probably of a technical nature, which is guarded very closely and is of such particular value to the owner of the trade secret that harm to him would be presumed by its mere disclosure.
Campbell J. held that the work product was capable of proving the methodology and that, therefore, they are one and the same. It was also held that the work product was of a "technical nature" within Strayer J.'s definition, above; it was guarded very closely by the applicant and regarded as of such a unique and peculiar quality that its mere disclosure could be presumed to cause economic harm to the applicant. Campbell J. therefore concluded that the reports in question contained trade secrets.
Paragraph 20(1)(b)
Relying on the findings made with respect to para. 20(1)(a), Campbell J. held that
the reports in question contained "technical information"; the work was
done as part of a commercial enterprise and therefore can be properly considered
as containing "commercial information"; and, finally, that such
information had be consistently treated in a confidential manner within the
meaning set out in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989),
37 Admin. L.R. 245 (F.C.T.D.).
Campbell J. also determined that in deciding whether the fostering of a confidential relationship between the government and the third party is for the "public benefit" (see criteria set out in Air Atonabee, supra), what is required to be established is only the type and workings of the relationship that exists. In this case, such a relationship produced confidential advice and guidance with respect to the public's business in order to ensure more beneficial governmental management very much to the public's benefit.
Paragraph 20(1)(c)
Campbell J. held that the criteria for proof of "material financial
loss" set out in SNC-Lavalin Inc. v. Canada (Minister of Public
Works) (1994), 79 F.T.R. 113 (F.C.T.D.) had been met, that is, proof of
"a reasonable expectation of probable harm".
Comments
The Federal Court of Appeal dismissed the Minister's appeal from the decision of the Trial Division (2002 FCA 406, A-611-01, judgement dated October 22, 2002). The Court rejected the appellant's argument that the Motions Judge had applied too low a standard of proof with respect to the issue of reverse-engineering. More specifically, the appellant argued that the third party's evidence was insufficient.
The applicable standard of proof with respect to applications under paras. 20(1)(a) to (c) (the provisions invoked by the third party) is the civil standard, i.e. proof on a balance of probabilities. The FCA held that the Motions Judge had not altered that standard and that there was evidence which permitted him to allow the third party's claim. The appellant failed to show that the Motions Judge made an error of principle or completely misapprehended the facts or committed an overriding and palpable error.
Siemens Canada Ltd. v. Minister of Public Works and
Government Services Canada
Indexed as: Siemens Canada Ltd. v. Canada
(Minister of Public Works and Government Services)
|
File No.: |
T-587-00 |
|
References: |
[2001] F.C.J. No. 1654 (QL) (F.C.T.D.) |
|
Date of decision: |
November 5, 2001 |
|
Before: |
McKeown J. |
|
Section(s) of ATIA / PA: |
Ss. 24, 44 Access to Information Act (ATIA) |
|
Other statute(s): |
Ss. 16, 30 Defence Production Act |
|
|
|
Abstract
- S. 44 judicial review
- Application of s. 24 ATIA and s. 30 of the Defence Production Act (DPA) to documents that are part of the solicitation of a contract as opposed to documents that are part of the actual contract
Issue
Whether the documents should be exempt from disclosure by virtue of ss. 24 of the ATIA and 30 of the DPA.
Facts
This was a s. 44 application for judicial review of a decision of the Minister of Public Works and Government Services Canada (PWGSC) to release documents submitted by the applicant concerning PWGSC's solicitation for the provision of in-service support on Halifax and Iroquois class ships.
PWGSC distributed a Request for Proposals for the above-mentioned solicitation. The applicant submitted a proposal and was awarded the contract. After the contract was awarded to the applicant, one of the unsuccessful bidders made a request under the ATIA for records held by PWGSC in relation to the applicant's participation in the solicitation process.
The Access to Information and Privacy (ATIP) Coordinator informed the applicant that a request for information had been received and that the applicant had the right to make submissions to PWGSC as to why its documents should not be released.
The applicant first responded to the request for information by providing the ATIP Coordinator with a list of the documents that the applicant did and did not object to disclosing and the grounds under s. 20 of the ATIA on which it relied.
A few weeks later, the applicant withdrew its previous consent and adopted the position that none of the documents should be disclosed pursuant to subs. 24(1) of the ATIA on the ground, among others, that such disclosure would violate s. 30 of the Defence Production Act (DPA). The latter provision is incorporated by reference in Schedule II of the ATIA.
PWGSC notified the applicant that it had considered its various arguments and had determined that the documents were only partially exempt by virtue of subs. 19(1), and subparas. 20(1)(b) and (c) of the ATIA, and that subs. 24(1) did not apply.
Decision
The application for judicial review was allowed.
Reasons
The respondent argued that s. 30 of the DPA does not apply to the requested documents because they are part of the solicitation of the contract, and not part of the actual contract, and that it is only the contract itself that is considered to be the defence contract to which s. 30 may apply.
Pursuant to s. 30 of the DPA, "No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business [...]". The Court held that the information had been obtained "under or by virtue of this Act", since the Minister derives his or her authority to conduct procurements, and to do all such things as appear to be incidental to such procurements, from s. 16 of the DPA. In the Court's view, it is irrelevant if the information constituted part of the actual contract, or was part of the solicitation. The information in question was all obtained by the Minister acting under the authority given by the DPA. Thus, section 1.5 of the Request for Proposals which states in part that "[...] Security clearance must be in place prior to award of Contract" does not take matters relating to security clearance outside s. 30. Therefore, the documents should not be disclosed since the applicant has not provided its consent.
Comments
The Federal Court of Appeal dismissed the Minister's appeal, thereby affirming the decision of the Motions Judge ([2002] F.C.J. No. 1475 (QL), A-700-01, judgement dated October 24, 2002). The FCA did not interpret s. 44 ATIA as limiting the jurisdiction of the Federal Court "such that s. 24 [ATIA] cannot be invoked by the party seeking to prevent disclosure". The FCA also agreed with the Motions Judge that the information in question was obtained under or by virtue of the Defence Production Act.
Cistel Technology Inc. v. Correctional Service Canada
Indexed as: Cistel Technology Inc. v. Canada
(Correctional Service)
|
File No.: |
T-2360-00 |
|
Reference: |
[2002] F.C.J. No. 328 (QL) (F.C.T.D.) |
|
Date of decision: |
March 5, 2002 |
|
Before: |
McKeown J. |
|
Section(s) of ATIA / PA: |
Ss. 20(1)(b), 44 Access to Information Act (ATIA) |
|
|
|
Abstract
- Third party judicial review
- Scope of request for access
- Confidentiality test not met
Issues
Were certain records produced by CSC part of the scope of the request for access?
Did the information to be disclosed fall under para. 20(1)(b) of the ATIA?
Facts
The applicant, Cistel Technology Inc. (Cistel) provides information technology personnel to perform work pursuant to various contracts and standing offers it secures. It successfully bid for three standing offers with the Correctional Service of Canada (CSC). A request for access was made for "copies of all invoices for services Technology Inc. to Correctional rendered by Cistel Services Canada from 1997 to date". Cistel's invoices indicate the name and the position of the personnel performing the work, their per diem rates, the number of days they have worked on the project that month and the total charges invoiced for that period. CSC indicated to Cistel its intention to disclose all invoices with the exception of the individuals' per diem rates, the number of days they worked on the project and the total charges broken down by individual. Cistel thereupon applied for judicial review, seeking an order that only its identity and the total contract price be released under the ATIA.
The main question is whether the invoices, without the information that CSC agreed to remove, are confidential. The remaining information consisted of the names of Cistel's employees who had worked on the project, their position and the total dollar amount for a one-month period. A secondary question is whether the payment vouchers and the task request/authorization forms of CSC which were produced by CSC were part of the request.
Decision
The application for judicial review was dismissed. The respondent, CSC, was directed not to disclose the payment vouchers and the task request/authorization forms.
Reasons
Issue 1
On the issue of the scope of the request, the Court was of the view that CSC's
payment vouchers and its task request/authorization forms were not invoices and,
therefore, should not be disclosed as part of the access request.
Issue 2
The applicant failed to establish that the information left on the invoices was
confidential information in an objective sense and that it had treated it
consistently in a confidential manner: Air Atonabee Limited v. Canada (Minister
of Transport) (1987), 27 F.T.R. 194 (F.C.T.D.).
There is nothing on the invoices to indicate that they are confidential. The names of the support staff that work for Cistel are easily ascertainable by companies in that business and, therefore, cannot be said to be confidential from any objective standpoint. Furthermore, a total dollar amount for a one‑month period would not be of great assistance to any competitor.
The affidavit of Cistel's Chief Executive Officer states that the information was treated in a confidential manner but fails to indicate how this was done. A mere assertion, without direct cogent evidence on how the information was treated in a confidential manner, does not suffice to establish the application of para. 20(1)(b).
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.
AB v. Minister of Citizenship and Immigration
Indexed as: AB v. Canada (Minister of Citizenship and Immigration)
|
File No.: |
IMM-1683-01 |
|
References: |
2002 FCT 471; [2002] F.C.J. No. 610 (QL) (F.C.T.D.) |
|
Date of decision: |
April 26, 2002 |
|
Before: |
O'Keefe J. |
|
Section(s) of ATIA / PA: |
S. 8(2)(a), (b) Privacy Act (PA) |
|
|
|
Abstract
- Disclosure, consistent use and statutory/regulatory authorization
- Paras. 8(2)(a) and (b) not blanket endorsements for personal information of refugees to be shared at all refugee hearings
- Disclosure of personal information concerning one refugee claimant for purposes of using that information at another refugee's hearing not a "consistent use"
- Subs. 69(3) Immigration Act and Rule 28 Convention Refugee Determination Division Rules not constituting para. 8(2)(b) authority
Issue
Is the decision of the Immigration and Refugee Board, Convention Refugee Division, (the "Board") to disclose the applicant's personal information unlawful, in that the disclosure was for a purpose and to an extent not permitted under the Privacy Act?
Facts
This was an application for judicial review made under s. 18.1 of the Federal Court Act.
The applicant, AB, is a Peruvian citizen and a high-profile international athlete. The applicant came to Canada in 1999 to compete in the Pan-American Games in Winnipeg as a member of Peru's wrestling team. The applicant made a refugee claim, based on his fear of persecution by the government of Peru. The applicant was determined by the Board to be a Convention refugee on January 28, 2001.
At the same Pan-American Games, another member of the Peruvian wrestling team ("Luis Bazan"), also made a refugee claim. At the time of the s. 18.1 application, Bazan's claim had not been determined.
The applicant was informed that the Board intended to disclose his Personal Information Form, as well as the transcript, reasons and exhibits from his refugee hearing, and submit them into evidence at the hearing of Bazan. The applicant was invited to submit to the Board any objections in writing, which he did.
Despite the applicant's stated objections, the Board submitted the information at issue into evidence at the hearing of refugee claimant Bazan. This decision was communicated to the applicant by telephone on March 22, 2001. This s. 18.1 application is made against that decision.
The applicant submits that para. 8(2)(a) of the PA must be interpreted so as to protect the confidentiality of an individual's personal information to the greatest extent possible. The respondent argues, on the other hand, that the caselaw supports a broad and inclusive interpretation of "consistent use". The Board submits that it is appropriate for it, under para. 8(2)(a) PA, to consider evidence from other refugee claims where two or more claims are closely linked.
Decision
The application for judicial review was allowed and the decision of the Board to release the applicant's confidential information was set aside1. It was declared that the Board's decision to release the applicant's confidential information was unlawful and the Board was prohibited from further releasing the applicant's confidential information without the applicant's consent.
Reasons
The record of the applicant's refugee claim qualified as personal information under the control of a government institution. As such, unless the consent of the individual concerned is granted (as required under subs. 8(1) of the PA) one of the paragraphs in subs. 8(2) must be invoked to justify the disclosure.
Paragraphs 8(2)(a) and (b) were definitely not intended as a blanket endorsement for personal information of refugees to be shared at all refugee hearings. Moreover, each case must be dealt with on its own merits.
An example of a "consistent use" under para. 8(2)(a) of the Privacy Act included the situation where an individual provided contradictory evidence as a witness in a second refugee hearing than he had provided during his own refugee hearing. In that situation, which the Privacy Commissioner considered as falling within para. 8(2)(a), the individual concerned brought his own personal information into question at the second refugee hearing by testifying about the same information provided at his hearing (although in a contradictory manner). According to the Court, that situation was clearly distinguishable from the present case where the applicant claimed to hardly know the other refugee claimant and had no intention of participating in that claimant's hearing.
In this case, the purpose for which the information was obtained was the determination of the applicant's claim for Convention refugee status. In order for the disclosure of the applicant's personal information to be justified under this section, the use of that information must be a use consistent with the purpose for which the information was collected. The Court did not find that the determination of the refugee claim of the other applicant was consistent with the purpose of determining the applicant's claim for Convention refugee status.
Counsel did not direct the Court to any Act of Parliament or any regulation made thereunder that authorized the disclosure of the applicant's personal information contained in his refugee record. Therefore para. 8(2)(b) did not apply. Although subs. 69(3) of the Immigration Act and Rule 28 of the Convention Refugee Determination Division Rules were considered, the Court was of the view that they did not provide satisfactory authority for the disclosure of the personal information. Subsection 69(3) provides a mechanism to ensure confidentiality of proceedings where the Board's proceedings are being held in public. In the instant case, what was at issue was the confidentiality of the record of a refugee claimant after the Board had concluded proceedings and made a final determination with respect to that refugee claimant. The Court thus found that subs. 69(3) was not directly applicable to the situation at hand. As for Rule 282, it confers on the Board a broad discretion to make decisions relating to the determination of Convention refugees. However, in the Court's view, it was not clear that this broad discretion was intended to authorize the disclosure of personal information that would otherwise be protected under the Privacy Act.
Paragraphs 8(2)(c) through (m) were found not to be applicable to the situation at hand. Rule 28(1) provides that "Every application that is not provided for in these Rules shall be made by a party to the Refugee Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner." Rule 28(9) states that "The Refugee Division, on being satisfied that no injustice is likely to be caused, may dispose of a motion without a hearing.".
David M. Sherman v. Minister of National Revenue
Indexed as: Sherman v. Canada (Minister of National Revenue)
|
File No.: |
T-612-00 |
|
Reference: |
[2002] F.C.J. No. 779 (QL) (F.C.T.D.) [rev'd 2003 FCA 202; [2003] F.C.J. No. 710 (QL) (F.C.A.), A-387-02, judgment dated May 6, 2003] |
|
Date of decision: |
May 22, 2002 |
|
Before: |
McKeown J. |
|
Section(s) of ATIA / PA: |
Ss. 13(1)(a), (2), 53 Access to Information Act (ATIA) |
|
|
|
Abstract
- Application of para. 13(1)(a) ATIA
- Statistics compiled from information obtained from the Internal Revenue Service of the US under Canada-US Tax Convention integral part of that information
- Requested information is about information exchanged under the Convention in confidence and should be treated the same
- No costs ordered in unsuccessful public interest application
Issue
Was the requested information properly exempted from disclosure pursuant to paras. 13(1)(a), 16(1)(b), 16(1)(c) or subs. 15(1) ATIA?
Facts
The applicant sought, from Revenue Canada, the disclosure of certain statistical information regarding the extent to which Revenue Canada used the United States Internal Revenue Service ("IRS") to collect Canadian taxes since 1995, and the extent to which the IRS used Revenue Canada to collect U.S. taxes since 1995, pursuant to the Convention Between Canada and the United States of America with respect to Taxes on Income and on Capital (the "Convention"). The respondent refused to disclose the information pursuant to paras. 13(1)(a), 16(1)(b) and (c) ATIA.
The applicant subsequently complained to the Information Commissioner who found that the applicant's complaint was not substantiated.
The applicant applied for judicial review of the Minister's refusal to disclose. He submits that the requested information was not collected from the United States, that it is simply statistics from Revenue Canada's own files, and that statistics about the information are not the same as the information itself. He further submits since domestic statistics are released, there should be no change in policy with respect to statistics obtained through foreign governments and, therefore, the latter should also be released.
Decision
The application was dismissed without costs.
Reasons
In reviewing decisions not to disclose pursuant to a mandatory class test exemption such as para. 13(1)(a), the Court's role is to determine whether the head of the government institution erred in the factual determination that the requested information falls within the exemption.
The Court outlined the three requirements to satisfy para. 13(1)(a): the information must be obtained from the foreign government, the information must have been obtained in confidence; and the information must have been obtained from the government of a foreign state or an institution thereof.
Information obtained from the foreign government
The records containing the information sought are a compilation of statistics about the collection assistance given by Canada to the United States and received by Canada from the United States under the Convention. The Court found that the statistics are an integral part of the information supplied under the Convention, as the statistics could not exist without the information obtained from the United States. The Court added: "The Government of Canada is free to choose what part of their own information they choose to release in statistical form, however, the difference is that by releasing such statistics with respect to their own data it does not interfere with relations with foreign countries. The IRS has told Canada it does not want the information disclosed. It could jeopardize working relations between Canada and the United States under the Convention."
Information obtained in confidence
Referring favourably to Nadon J.'s eighth principle in Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), [1997] 2 F.C. 907 (T.D.), the Court determined that the information requested is about information exchanged under the Convention, and therefore, it should be treated as secret, in the same manner as information exchanged under the Convention would be treated. The United States Government's position that it considers the information to have been sent and received in confidence and that it should not be released provided further support for the view that the requested information was obtained in confidence.
Information obtained from the government of a foreign state or an institution thereof
There was no dispute that the IRS is an institution of the United States Government or that the United States is a foreign state.
The Court determined that subs. 13(2) was inapplicable because the United States did not consent to the disclosure and did not make the information public.
In view of its finding under para. 13(1)(a), the Court did not consider subs. 15(1) nor paras. 16(1)(b) and 16(1)(c).
Regarding costs, the Court was of the view that this application mainly involved a factual determination and did not involve important new principles. Nevertheless, the Court ordered, pursuant to s. 53 ATIA, that there be no costs because the applicant brought this application in the public interest and did not stand to benefit personally from the disclosure.
Comments
This decision is under appeal.
Bacon International Inc. v. Department of Agriculture
and Agri‑Food Canada
Indexed as: Bacon International Inc. v. Canada
(Department of Agriculture and Agri-Food)
|
File Nos.: |
T-2290-98, T-2291-98, T-2292-98, T-2294-98 |
|
Reference: |
[2002] A.C.F. No.776 (QL) (F.C.T.D.) |
|
Date of decision: |
May 23, 2002 |
|
Before: |
Beaudry J. |
|
Sections(s) of ATIA / PA: |
Ss. 20(1)(b), (c), (d), 44 Access to Information Act (ATIA) |
|
|
|
Abstract
- Role of Court with respect to application under s. 44 of the ATIA
- Third party's burden of proof with respect to an application under s. 44 of the ATIA
- Criteria making paras. 20(1)(b), (c) and (d) of the ATIA applicable
Issues
Do the exceptions provided under paras. 20(1)(b), (c) and (d) of the ATIA apply to the record?
Has Parliament encroached on a matter falling within provincial jurisdiction by adopting paras. 20(1)(b), (c) and (d) of the ATIA?
Facts
This is an application for judicial review under s. 44 of the ATIA following the respondent's decision to disclose a record, which the applicants are requesting the non-disclosure of based on paras. 20(1)(b), (c) and (d) of the Act.
The applicants each run a slaughterhouse and meat processing plant in Quebec. The respondent conducts inspections and gives the facilities overall ratings in carrying out its mandate of protecting the public in the food industry.
The respondent received a request for access to information to obtain the rating given by the Department to all facilities specializing in slaughtering and meat processing in Quebec. The respondent informed each of the applicants about the request for information and invited them to send their written comments with respect to the reasons why the record should not be disclosed. The applicant parties all argued in support of paras. 20(1)(b), (c) and (d). The applicants did not convince the respondent that sub. 20(1) applied in order to allow the non-disclosure of the record; therefore, the respondent decided to disclose it.
Decision
The application for judicial review is dismissed and it is ordered that the records be disclosed.
Reasons
Issue 1
General principles
The judge pointed out that in an application for judicial review under s. 44 of
the ATIA, the Court must hear the matter de novo.
He added that in access to information, disclosure of records is the rule and exemption is the exception, and that the third party opposing the disclosure of the information must prove, according to the balance of probabilities, that the requested information should not be disclosed.
Paragraph 20(1)(b)
Referring to Air Atonabee Limited v. Canada (Ministry of Transport) (1989),
27 F.T.R. 194 (F.C.T.D.), the judge confirmed that the third party claiming
the exception provided by para. 20(1)(b) must prove that the record:
(a) contains financial, commercial, scientific or technical information, according to the usual meanings of these terms;
(b) was supplied by the third party to a federal institution;
(c) is confidential in the objective sense of this expression; and
(d) was consistently treated in a confidential manner by the third party.
In the present case, the Court ruled that the applicants did not meet the burden of proof incumbent upon them pursuant to para. 20(1)(b) because the record does not meet the criteria of containing information supplied to the federal institution by the third party itself. In fact, the record for which the applicants are trying to obtain an exemption to disclosure contains a rating for facilities issued by the respondent in carrying out its mandate of protecting the public in the food industry.
Paragraphs 20(1)(c) and (d)
For paras. 20(1)(c) and (d) of the Act to apply, there must be a reasonable
expectation of probable harm. Therefore, the applicants must demonstrate a
probability of harm, and not only a possibility of harm. It is necessary that the
applicants submit evidence demonstrating to the Court how and why the disclosure
would probably cause the alleged harm. In the present case, the applicants'
statements concerning the harm that they could suffer are too general and brief
for the Court to be able to find that it is preferable to not disclose the record.
In other words, it is not only by claiming that the disclosure will cause them
financial loss, interfere with their competitiveness and their negotiations that
the applicants will meet the burden of proof.
The disclosure of the rating issued by the respondent in 1998 will not give rise to an expectation of probable harm because the rating for the applicants was good. Adopting the words of Justice MacGuigan in Canada Packers Inc. v. Canada (Department of Agriculture), [1989] 1 F.C. 47 (C.A.), the judge added that even if the 1998 records had been unfavourable, "particularly now, years after they were made, they are not so negative as to give rise to a reasonable probability of material financial loss to the [third party] or of prejudice to its competitive position or of interference with its contractual or other negotiations."
Issue 2
The applicants allege that subs. 20(1) of the ATIA must be interpreted according to the principles of civil law enforced in the province of Quebec because the record is their trade secret and that only Quebec can legislate in the area of "property and civil rights." The Court has determined that in this case, it is unnecessary to address this issue, because, on one hand, the applicants did not discharge the onus of proving that subs. 20(1) applies, and, on the other hand, the record was not supplied by the applicants and is thus not the applicants' property or asset.
Comments
This decision is under appeal.
Newfoundland Power Inc. v. Minister of National Revenue
Indexed as: Newfoundland Power Inc. v. Canada
(Minister of National Revenue)
|
File No.: |
T-2029-99 |
|
Reference: |
[2002] F.C.J. No. 939 (QL) (F.C.T.D.) |
|
Date of decision: |
June 19, 2002 |
|
Before: |
Martineau J. |
|
Section(s) of ATIA / PA: |
Ss. 21(1)(b), 25 Access to Information Act (ATIA) |
|
|
|
Abstract
- Application for judicial review under s. 41 of the ATIA
- Internal memorandum signed by two of the Department's officers
- Interpretation of the term "deliberations" in para. 21(1)(b) of the ATIA
- Discretion exercised in accordance with applicable principles
Issue
Did the federal institution err in refusing to disclose to the requester certain parts of a document pursuant to para. 21(1)(b) of the ATIA? (No)
Facts
This was an application for the judicial review of a decision by the Minister of National Revenue to refuse the disclosure, to the requester, of an entire internal memorandum signed by two of the Department's officers. The respondent refused to disclose certain parts of the memo, invoking the exemption in para. 21(1)(b) of the ATIA under which the head of an institution may refuse to disclose documents that are less than 20 years old and contain an account of consultations or deliberations involving officers or employees of a government institution, a minister or the staff of a minister.
Decision
The application for judicial review was dismissed.
Reasons
The Court held that an "analysis of various strategic or legal options, and any recommendation made by the defendant's officers or employees regarding the position that the defendant should adopt with respect to a taxpayer's notice of objection, are clearly covered by para. 21(1)(b) of the Act. After examining the contents of the memo, the Judge held that the memo contained "deliberations" within the meaning of para. 21(1)(b).
The Court then held that the head of the institution had examined the memorandum in great detail to determine which information was exempt under para. 21(1)(b), and had applied the severance principle as required by s. 25 of the ATIA.
Turning finally to the exercise of discretion conferred by s. 21, the Judge held that since there was no evidence to the contrary, and no evidence of bad faith on the part of the respondent, the discretion appears to have been exercised in full compliance with applicable legal principles. In this regard, the Court cited Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.) at 256-7; Rubin v. Canada (Canada Mortgage and Housing Corporation, [1989] 1 F.C. 265 (C.A.) at 274-5; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at 457-8 and Rubin v. Canada (Minister of Health) (2001), 14 C.P.R. (4th) 1 (F.C.T.D.) at 19.
Consequently, the respondent's refusal to disclose the entire contents of the memorandum was warranted.
Commissioner of Official Languages v. Lavigne
Indexed as: Lavigne v. Canada (Commissioner of Official Languages)
|
File No.: |
28188 |
|
References: |
2002 SCC 53; [2002] S.C.J. No. 55 (QL) |
|
Date of decision: |
June 20, 2002 |
|
Before: |
McLachlin C.J., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. |
|
Section(s) of ATIA / PA: |
S. 22(1)(b) Privacy Act (PA) |
|
|
|
Abstract
- Investigation by Commissioner of Official Languages
Para. 22(1)(b) PA applicable
"Injury to the conduct of lawful investigations" includes possibility of injury to future investigations if there is clear and direct connection between the disclosure of specific information and the injury that is alleged
Issues
Did the Federal Court Trial Division and Federal Court of Appeal err in concluding that Mr. Lavigne was entitled to all of his personal information requested under the Privacy Act? A secondary issue is whether a requester under the Privacy Act is entitled to information other than personal information?
Facts
Mr. Lavigne made a complaint to the Commissioner of Official Languages (COL) about his workplace language requirements. The complaint was made pursuant to the Official Languages Act and the COL began a formal investigation. As part of the investigation, the COL took notes of the interviews he conducted. Mr. Lavigne subsequently made a request under the Privacy Act for those notes and the COL refused to release them by relying on para. 22(1)(b) of the Privacy Act (reasonable expectation of injury to the enforcement of a law or the conduct of lawful investigations). Both the Federal Court Trial Division ((1980), 157 F.T.R. 15), and the Court of Appeal ((2000), 261 N.R. 19) ruled that the COL could not use the exemption to refuse the disclosure of the information requested on the ground that the disclosure would be injurious to the conduct of the investigation since the investigation was over.
Decision
The appeal was dismissed and the information was ordered released but not for the reasons rendered by the Courts below.
On the secondary issue, the Court confirmed that a person who makes a request under the Privacy Act is not entitled to information other than personal information.
Reasons
Given that one of the objectives of the Privacy Act is to provide individuals with access to personal information about themselves, the courts have generally interpreted the exemptions to the right of access narrowly. However, the Court concluded that there is nothing in para. 22(1)(b) that should be interpreted as restricting the scope of the word "investigation" to investigations that are underway or are about to commence, or limiting the general meaning of the word to specific investigations. In arriving at this conclusion, the Court held that the interpretation of the Privacy Act must be done consistently with the objectives of the Official Languages Act and the Court recognized that Parliament had expressly provided that investigations by the COL shall be conducted in private and that investigators shall not disclose information that comes to their knowledge in the performance of their duties and functions
However, the non-disclosure of personal information provided in para. 22(1)(b) is authorized only where disclosure "could reasonably be expected" to be injurious to the investigations. The Court held that this meant that "there must be a clear and direct connection between the disclosure of specific information and the injury that is alleged. The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure." While elaborating on this point, the Court said: "Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law. A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process. The Commissioner of Official Languages has an obligation to be sensitive to the difference in situations, and he must exercise his discretion accordingly." Later in the judgement, the Court said that the COL argued "that the disclosure of the personal information would have an injurious effect on future investigations without proving this to be so in the circumstances of this case. The Commissioner's decision must be based on real grounds that are connected to the specific case in issue."
Because the COL's evidence tried to prove, generally, that if investigations were not confidential this could compromise their conduct, the Court held that there was no evidence that established specific circumstances from which it could reasonably be concluded that the disclosure could be expected to be injurious. In this case, the evidence did not provide a reasonable basis for concluding that disclosure of the notes of the interview could reasonably be expected to be injurious to the COL's future investigations.
Information Commissioner of Canada v. Minister of
Citizenship and Immigration and Philip Pirie and the Privacy
Commissioner of Canada
Indexed as: Canada (Information Commissioner) v. Canada (Minister of
Citizenship and Immigration)
|
File No.: |
A-326-01 |
|
Reference: |
[2002] F.C.J. No. 950 (QL) (F.C.A.) |
|
Date of decision: |
June 21, 2002 |
|
Before: |
Décary, Noèl and Evans JJ.A. |
|
Section(s) of ATIA / PA: |
S. 19(1) Access to Information Act (ATIA); ss. 3(e), (g),(h), (i), (j), 12(2) Privacy Act (PA) |
|
|
|
Abstract
- Administrative review of workplace environment conducted by consultant
- Respondent requesting access to interview notes
- Names of persons interviewed personal information to both interviewees and respondent
- Whose interest should prevail
- Weighing of private interests and public interest in disclosure and non‑disclosure
- Fairness and right to correction
Issues
Whether the names of individuals interviewed in the course of an administrative review, who expressed views or opinions about another individual, and portions of their interviews which would identify them, is "personal information" of those individuals or of the individual who was the subject-matter of the opinions?
Where "personal information" can be personal to more than one individual, which interest should prevail?
Facts
Allegations of discriminatory behaviour and harassment at CIC's Case Processing Centre (CPC) in Vegreville, Alberta, prompted CIC to request an independent consultant to conduct an administrative review of the corporate culture in the CPC. Interviews were conducted on a voluntary basis. Employees who participated were advised that the interviews would be confidential; managers who participated were not so advised. The notes from the interviews were to be maintained by the consultant and were not to be passed to CIC.
Mr. Pirie, then Director of the CPC at Vegreville, was provided by CIC with a copy of the consultant's report and, on the same day, was relieved of his duties.
Mr. Pirie subsequently sought access, under the ATIA, to the notes from the interviews conducted by the consultant. As a result of that request, the notes came into the possession of CIC. CIC denied access to the notes in part. Mr. Pirie complained to the Information Commissioner and further disclosure was made. In the end, the names of the persons interviewed, information regarding their position, and the views or opinions about Mr. Pirie when their disclosure would indirectly disclose the identity of the person who expressed them, were exempted from disclosure pursuant to s. 19 ATIA. This exemption applies to information covered by the definition of "personal information" in s. 3 of the Privacy Act (PA).3
The lower Court ([2001] 3 F.C. 384) held that para. 3(i) of the PA warranted the non-disclosure of the names and opinions of the interviewees. However, it held that para. 3(j) applied to the names and opinions of those interviewees who had responsibility to prevent harassment in the workplace. As a result, it ordered the disclosure of "the identities of all managers with responsibility to prevent harassment in the workplace or to administer a harassment policy who were interviewed together with any of their recorded opinions or views which have not already been disclosed to Mr. Pirie".
This is an appeal from that decision.
Decision
The appeal was allowed. The Minister of Citizenship and Immigration was ordered to disclose to Mr. Pirie the records or parts thereof that do not qualify for exemption under subs. 19(1) of the ATIA.
Reasons
Preliminary findings of the Court
Prior to addressing the first issue, the Court made the following preliminary
observations. (1) Considerations about what Mr. Pirie intended to do with the
information and the reasons that prompted his request for access were found
irrelevant where the issue, as here, turns on an individual's right of access to
information. (2) The severance of the names of the interviewees and any
information that could identify them renders meaningless the right conferred
on an individual under subs. 12(2) PA "to request correction of
[his] personal information". (3) The promise of confidentiality made by CIC
to some of the interviewees cannot override the obligation imposed by the ATIA
to release the information, nor be opposed to Mr. Pirie should he be entitled
to disclosure. (4) The chilling effect disclosure might have on possible future
investigations has been consistently denied as a ground for refusing disclosure.
Issue 1-Definition of "personal information"
Given the expansive meaning attributed to "personal information" in Dagg
v. Canada (Minister of Finance) ([1997] 2 S.C.R. 403), it is clear that the
same information can be "personal" to more than one individual. La
Forest J.'s statement in Dagg to the effect that if a government record is
captured by the opening words of s. 3, "it does not matter that it does not
fall within any of the specific examples" enumerated therein, cannot be
interpreted as meaning that it does not matter that a government record is
expressly or impliedly excluded by one of the specific examples. Parliament cannot
be intended to have included in the general words what it has excluded in the
examples given.
The Court first looked at para. 3(e) which makes it clear that personal opinions of an individual (an interviewee) are his "personal information" except when they are about another individual (Mr. Pirie) in which case para. 3(g) provides that they become the latter's personal information. The Court then concluded that an opinion presumes an opinion-holder. It follows that the name and identity of interviewees are as much the personal information of Mr. Pirie, pursuant to para. 3(g), as is the substance of the opinions or views expressed. Paragraph 3(h) resolves any doubt as to whether para. 3(e) includes the identity of the holder of the opinions or views in the words "personal opinions or views of the individual". Only when the views concern a proposal for a grant, an award or a prize is the identity of the holder excluded under para. 3(h). Had Parliament intended this "clarification" to apply to the whole of para. 3(e), it would have said so in the same way that it did in para. 3(h). Its absence confirms that the very notion of opinions and views of an individual contemplates the source of that opinion or view
The Court then examined the second branch of para. 3(i). According to the Court, it applies where the disclosure of the name itself would reveal information about the individual, but it does not apply to contextual information (as opposed to the name) that could reveal the identity of the interviewees. Where the name does not appear, the information does not fall under para. 3(i). While the Court entertained some doubt that the words "information about the individual" have the broad meaning that La Forest J. gave them in Dagg, in obiter (para. 85 of the Dagg decision), it nevertheless held that the name itself of an interviewee is personal information of the latter under para. 3(i) although this finding had no impact on its ultimate conclusion.
In the end, the Court found that the names of the interviewees were the personal information of both Mr. Pirie pursuant to para. 3(g) and of the interviewees themselves pursuant to para. 3(i). In order to decide if Mr. Pirie could have access to this information, the Court decided to determine who had the greater interest in the information: Mr. Pirie or the interviewees?
Issue 2-Balancing competing interests
The scheme of the PA requires that one interest must prevail over the other
since a government institutions cannot, with respect to the same information, both
disclose it with the consent of an individual and refuse to disclose it because of
the lack of consent of another individual. The question of whose interest must
prevail requires a balancing exercise that takes into account the private
interests of the interviewees and Mr. Pirie as well as the public interest in
disclosure and non-disclosure.
According to the Court, the interviewees' private interest in not revealing the fact that they participated in the inquiry and keeping their conversations with the investigator confidential is minimal. The fact that they participated in the inquiry has, in itself, little significance and, to the extent they can justify the views they expressed, they should not fear the consequences of the disclosure, although there may be some.
The Court rejected the argument that the chilling effect the disclosure might have on future investigations, coupled with the fact that promises of confidentiality made by CIC to some of the interviewees will not be given effect, justified the public interest in non-disclosure.
The Court found that the private interest of Mr. Pirie was significant. Implicit, if not explicit in the report and in the action taken by CIC as a result of its publication, is the fact that he bears some responsibility for the problems which were found to exist at the Centre. He must be given the opportunity to know what was said, and by whom, against him, if only to exercise his right under subs. 12(2) PA to clear his name in CIC's archives.
The public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. Whatever the rules of procedural propriety applicable in a given case, fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views to challenge their accuracy and to correct them if need be.
The Court concluded that both the private interest of Mr. Pirie and the public interest mandated the disclosure of the name of the interviewees.
Canada Post Corporation v. National Capital Commission
Indexed as: Canada Post Corp. v. Canada (National Capital Commission)
|
File No.: |
T-558-01 |
|
Reference: |
[2002] F.C.J. No. 982 (QL) (F.C.T.D.) |
|
Date of decision: |
June 21, 2002 |
|
Before: |
Kelen J. (F.C.T.D.) |
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Section(s) of ATIA / PA: |
Ss. 20(1)(b), (c), and (d), 44 Access to Information Act (ATIA) |
|
|
|
Abstract
- S. 44 standard of review
- Negotiated amounts of financial assistance not information "supplied to a government institution by a third party"
- Disclosure of sponsorship rates can prejudice the competitive position of a sponsor
- Possibility of pressure from third parties for matching sponsorship funds and pressure from competitors not constituting interference or obstruction with contractual negotiations
Issue
Whether the amounts paid by Canada Post Corp. (CPC) for sponsoring the Canada Day event, the Sound and Light Show, and the Christmas Lights event are exempt from disclosure pursuant to either para. 20(1)(b), or (c) or (d) of the ATIA.
Facts
A request was filed with the National Capital Commission (NCC) for access to information related to financial assistance received from sponsors, for public events for which the NCC is responsible. The NCC informed CPC of this request. Attached to the letter was a Record detailing information about CPC with respect to contributions made by it for events on Canada Day, the Sound and Light Show, and the Christmas Lights, that the NCC intended to release, on the grounds that the information was not protected under subs. 20(1) ATIA.
Canada Post provided the NCC with submissions objecting to the release of the information on grounds based upon paras. 20(1)(b), (c) and (d). The NCC subsequently rejected Canada Post's submissions, hence this s. 44 application.
Decision
The application was allowed on the basis of para. 20(1)(c) ATIA. The absence of a confidentiality agreement between CPC and the NCC, together with the NCC's success on two of the three grounds for exemption, led the Court to order that the parties bear their own costs.
Reasons
Standard of review and onus
Referring to the decision in St. Joseph Corp. v. Canada (Public Works and
Government Services), [2002] F.C.J. No. 361 (QL) (F.C.T.D.), the Court found
that the standard of review under s. 44 is correctness and that it is its role to
consider whether the information ought to be disclosed on a de novo basis.
Since the purpose of the Act is to provide the public with a right of access to
information, the onus is on the party attempting to prevent disclosure to show
that clear grounds exist to justify the exemption.
Paragraph 20(1)(b)
Applying the Air Atonabee test, as summarized in St. Joseph, the
Court rejected CPC's argument based on para. 20(1)(b). Although the amounts of
financial assistance for sponsorship were "financial and commercial
information" and that this information was confidential in nature
(notwithstanding the absence of a confidentiality agreement), the Court found that
negotiated amounts of financial assistance did not constitute information
"supplied to a government institution by a third party". The intention
of Parliament in exempting financial and commercial information from disclosure
applies to confidential information submitted to the government, not negotiated
amounts for goods or services. Otherwise, every contract amount with the
government would be exempt from disclosure, and the public would have no access to
this important information. Moreover, there would be no need for Parliament to
have enacted paras. 20(1)(c) and (d).
The Court further found that the information had not been treated consistently in a confidential manner by the applicant, as shown from its affidavit. Although the instances where the information had not been treated confidentially may have occurred through no fault of the applicant, the Court found that these instances nevertheless showed a lack of careful, consistent measures by the applicant to restrict access to the information.
Paragraph 20(1)(c)
The applicant met the test set out in para. 20(1)(c). An analogy was drawn between
this case and Perez Bramalea Ltd. v. Canada (National Capital Commission),
[1995] F.C.J. No. 63 (QL) (F.C.T.D.). Just as disclosure of rental rates paid by
one tenant was found, in Perez, to prejudice the competitive position of a
landlord, the disclosure of sponsorship rates can prejudice the competitive
position of a sponsor by permitting private sector competitors to try to outbid
it, and by permitting others to use the information to seek increased sponsorship
funding. Canada Post provided tangible evidence of probable harm as opposed to
merely speculative evidence.
Paragraph 20(1)(d)
Applying the test in Société Gamma Inc. v. Canada (Secretary of State)
(1994), 79 F.T.R. 42 (F.C.T.D.), in which Strayer J. said "[...] when
paragraph 20(1)(d) refers to disclosure which could 'interfere' with contractual
negotiations it must refer to an obstruction to those negotiations and not merely
to the heightening of competition for the third party which might flow from
disclosure", Kelen J. found that the possibility of pressure from
third parties for matching sponsorship funds and pressure from competitors could
not be considered interference or obstruction with future contractual
negotiations. That submission was relevant to the exemption in para. 20(1)(c), not
para. 20(1)(d). Paragraph 20(1)(d) was therefore not applicable.
Promaxis Systems Inc. v. Minister of Public Works
and Government Services (Canada)
Indexed as: Promaxis Systems Inc. v. Canada
(Minister of Public Works and Government Services)
|
File No.: |
T-1755-00 |
|
Reference: |
[2002] F.C.J. No. 1204 (QL) (F.C.T.D.) |
|
Date of decision: |
August 30, 2002 |
|
Before: |
MacKay J. |
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Section(s) of ATIA / PA: |
Ss. 20(1)(b), (c), (d) Access to Information Act (ATIA) |
|
|
|
Abstract
- Third party information
- Total cost figures contained in original proposal for contract not confidential information
- Mere assertions of harm not sufficient
- Daily business operations of third party not caught under para. 20(1)(d)
Issue
Are the total cost figures contained in an original proposal for a contract exempt from disclosure pursuant to paras. 20(1)(b), (c) or (d) of the ATIA?
Facts
Two contracts were concluded between the applicant Promaxis Systems Inc. and the respondent Minister. One of the contracts was previously released to a requestor under the ATIA. Promaxis now seeks, in its s. 44 application for judicial review, to prevent the Minister from disclosing certain total cost figures contained in its original proposal for that contract. Promaxis argues that the disclosure of this information to a third party, likely a potential competitor, will be detrimental to its competitive position and could severely damage its business.
Decision
The application for judicial review was dismissed.
Reasons
Paragraph 20(1)(b)
The Court held that the total cost figures was not confidential information
within the meaning of para. 20(1)(b), however it may have been considered and
treated by Promaxis. In reaching this conclusion, it relied on the following
comments made by Strayer J. in Société Gamma Inc. v. Canada (Secretary
of State) (1994), 79 F.T.R. 42, at p. 46:
One must keep in mind that these Proposals are put together for the purpose of obtaining a government contract, with payment to come from public funds. While there may be much to be said for proposals or tenders being treated as confidential until a contract is granted, once the contract is either granted or withheld there would not, except in special cases, appear to be a need for keeping tenders secret. In other words, when a would-be contractor sets out to win a government contract he should not expect that the terms upon which he is prepared to contract, including the capacities his firm brings to the task, are to be kept fully insulated from the disclosure obligations of the Government of Canada as part of its accountability.
Paragraph 20(1)(c)
It is not sufficient that an applicant's affidavit swear to his or her concerns
about reasonable expectations of probable harm without some further evidence of
specific harm anticipated. The Court held that the assertions that the labour cost
and hourly wage figures could be calculated by knowledgeable people from total
costs proposed did not in itself demonstrate that the information ought not to be
disclosed. The evidence regarding potential layoffs arising from the loss of the
contracts and the ripple effect on Promaxis' ability to serve its clients was
speculative. Promaxis' fears regarding the effects of its staff knowing the total
bid prices and making the calculations of the applicant's margin of profits in
relation to wage costs did not demonstrate probable harm to Promaxis. The para.
20(1)(c) exemption was therefore inapplicable.
Paragraph 20(1)(d)
The Court held that vague concerns about employee relations with management were
matters within the day-to-day operations of Promaxis' business rather than matters
arising from particular contractual negotiations with outside agencies. Any impact
from the release of the information would not interefere, according to the Court,
with other specific contractual negotiations of Promaxis.
Canadian National Railway Company v. Attorney General
of Canada
Indexed as: Canadian National Railway Co. v. Canada (Attorney General)
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File No.: |
T-2027-00 |
|
Reference: |
[2002] F.C.J. No. 1283 (QL) (F.C.T.D.) |
|
Date of decision: |
September 13, 2002 |
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Before: |
Pelletier J. |
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Section(s) of ATIA/PA: |
Ss. 19, 20(1)(b), (c), (d), 44 Access to Information Act (ATIA) |
|
|
|
Abstract
- The fact that certain information can be found at registry offices is sufficient to make it information to which the public has access
Issues
Should the information sought be disclosed if an interested party can find it in sources to which the public has access?
Do the exemptions set out in s. 19 and in paras. 20(1) (b), (c) and (d) of the ATIA apply to the records at issue?
Facts
Every year, the applicant prepares a list of the non-rail assets it has sold over the previous year and sends it to Transport Canada. The applicant is required to prepare and submit this list under an agreement signed during the applicant's privatization. Transport Canada received a request to disclose the list for 1996 and 1997, but refused the request at the applicant's request. The documents contain the following information: name of the purchaser, the municipality of the property, its approximate surface area, the selling price, the date of sale, the costs of the sale and the net revenue of the sale. The parties agree that the costs associated with the sale and the net revenue of the sale must not be disclosed.
The person requesting access filed a complaint with the Information Commissioner regarding the decision not to disclose the information. Transport Canada subsequently decided it would disclose the contents of this list for the years in question. The reasons for this decision include the fact that one of the applicant's employees had agreed to disclose the information earlier and the fact that the information requested was accessible to the public because it was registered at the registry offices of various provinces.
Decision
The application for judicial review is dismissed
Reasons
Section 19 and paragraph 20(1)(b)
Justice Pelletier ruled that s. 19 and para. 20(1)(b), have a common element that
is among the most relevant to the decision. In both cases, the fact that some of
the information can be found in registry offices is relevant to understanding the
obligation to disclose documents.
Pelletier J. noted that confidentiality cannot not be raised in a case where the public has access to information (subs. 19(2)) or when the information can be obtained from sources to which the public has access (para. 20(1)(b)). Justice Pelletier found that it is the very nature of registry offices that the public have access thereto and that, prima facie, for the 166 transactions where the exact selling price can be found at registry offices, no information is confidential.
The Court then examined the issue raised by the applicant as to whether the Act only requires that the public have access to sources containing the information in question, or if it is necessary that the public actually be able to have access to this information. The applicant alleges that, although the information was registered at registry offices, it would be impossible to access this information by only knowing the purchaser's name or that the applicant was the vendor.
In the Court's view, any ambiguity with respect to this question must be resolved in favour of disclosure. The Court found that the registration of the purchasers' names, of the description of the property, of the date of sale and of the selling price at the registry offices makes this information accessible to the public, and, consequently, this information is not confidential.
Paragraphs 20(1)(c) and (d) ATIA
According to the Court, paras. 20(1)(c) and (d) apply when the disclosure of
certain information would cause losses to third parties or would obstruct
negotiations for contracts by third parties.
In regard to para. 20(1)(c), the applicant alleges that the purchasers will suffer harm if the property's purchase price is disclosed in that their ability to resell the land for the best possible price will be compromised because the interested parties will know what their selling price was. The Court dismissed this argument. On one hand, the selling price can be found in registry offices for 166 of the 183 transactions in question. On the other hand, even for the purchasers of the 17 properties which do not have the purchase price registered in registry offices, one cannot find that knowledge of the purchase price would have a deciding effect on the possible conclusion of the negotiations.
The Court also dismissed the applicant's claim that it would suffer a loss. The applicant alleges that proceedings could be instituted against it by some purchasers who, after learning about the disclosed documents, could claim to have suffered a loss on the basis of others benefiting from better conditions. The judge believed that this allegation is improbable because these were commercial transactions between people at arm's length.
With respect to para. 20(1)(d) of the Act, the applicant claims that its negotiations for the sale of other properties will be obstructed by the comparative elements which the potential purchasers will have after the information is disclosed. However, the judge ruled that the selling price varies according to the circumstances, in such a way that a purchaser should know much more than the gross price paid in other transactions to enjoy a considerable advantage in negotiations with the applicant.
The Court rules that s. 19 and paras. 20(1)(b), (c) and (d) of the Act do not apply to the 166 cases where the exact selling price appears at registry offices.
With respect to the 17 transactions for which the selling price does not appear in the registry offices, the Court ruled that the agreement between the parties to not disclose the costs associated with the sale and the net revenue of the sale will result in this information and the selling price being omitted from the documents to be disclosed.
Imperial Tobacco Canada Limited v. Minister of Health
Indexed as: Imperial Tobacco Canada Ltd. v. Canada
(Minister of Health)
|
File No.: |
T-546-01 |
|
Reference: |
Not reported |
|
Date of decision: |
October 8, 2002 |
|
Before: |
Lafrenière Prothonotary |
|
Section(s) of ATIA / PA: |
Ss. 28, 29, 44 Access to Information Act (ATIA) |
|
|
|
Abstract
- No right under s. 44 to challenge Department's decision not to provide notice to other third parties
Issue
Does s. 44 allow a third party to challenge the Department's decision not to notify other third parties?
Facts
The applicant, Imperial Tobacco, moves for an order requiring the respondent Minister to provide notice, under ss. 27 and 28, to the third parties which, in the applicant's view, have an interest in the outcome of the respondent's decision to disclose certain sponsorship documents. The applicant submits that the efficient case management of the application requires that all interested parties be involved in the proceedings at the earliest possible moment, and that there was insufficient compliance by the respondent with subs. 27(1).
Decision
The motion was dismissed.
Reasons
The applicant has no standing to challenge the respondent's decision not to provide notice to other entities. The right of review under s. 44 ATIA is provided only to third parties that receive notice from a government institution pursuant to subss. 28(1) and 29(1). Section 44 does not confer the right to challenge the decision not to give notice to other entities.
Ruby v. Canada (Solicitor General)
Indexed as: Ruby v. Canada (Solicitor General)
|
File No.: |
28029 |
|
References: |
2002 SCC 75; [2002] S.C.J. No. 73 (QL) (SCC) |
|
Date of decision: |
November 21, 2002 |
|
Before: |
McLachlin C.J., L'Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. |
|
Section(s) of ATIA/PA: |
Ss. 19, 21, 22(1)(b) and 51 Privacy Act (PA) |
|
|
|
Abstract
S. 41 PA review
- Ex parte filing of evidence and in camera hearings
- Constitutionality of ss. 51(2)(a) and 51(3)
- Sections 1 and 2(b), 7 and 8 of the Canadian Charter of Rights and Freedoms
- Reasonable expectation of probable harm
Issues
Do para. 51(2)(a) (requiring that court proceedings be held in camera) and subs. 51(3) (allowing submissions to be made ex parte) violate para. 2(b), s. 7 or s. 8 of the Charter; if they do, can they be saved by s. 1 of the Charter?
Is the exemption in para. 22(1)(b) of the Privacy Act limited to current investigations or an identifiable prospective investigation?
Facts
A request was made pursuant to s. 12 of the PA for personal information held by the Canadian Security Intelligence Service ("CSIS"). CSIS neither confirmed nor denied the existence of the information, claiming the exemptions found in ss. 19, 21, 22 and 26 of the PA. Section 19 provides that a government institution shall refuse to disclose personal information that was obtained in confidence from the government of a foreign state or an international organization, unless that government or organization agrees to the disclosure (the "foreign confidences" exemption). Section 21 provides that a government institution may refuse to disclose any personal information if such disclosure can reasonably be expected to be injurious to the conduct of international affairs or the defence of Canada (the "national security" exemption).
The requester complained to the Privacy Commissioner and, after the results of the Commissioner's investigation were reported, filed an application in the Federal Court, Trial Division for a review of CSIS' refusal under s. 41 of the PA. Prior to the review hearing, the requester challenged the constitutionality of para. 51(2)(a) and subs. 51(3) of the PA on the grounds that they violated para. 2(b) and ss. 7 and 8 of the Charter. The procedures set up by para. 51(2)(a) and subs. 51(3) of the PA provide that, where a government institution has claimed the "foreign confidences" and/or the "national security" exemption(s), it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera (para. 51(2)(a)) and to accept ex parte submissions at the request of the government institution refusing disclosure (subs. 51(3)). The courts below held that the impugned sections of the PA did not violate s. 7 of the Charter and that they did violate para. 2(b) of the Charter but that they were saved by s. 1.
CSIS had also claimed the exemption provided by para. 22(1)(b) of the PA. The exemption allows the government institution to exempt information if its disclosure could reasonably be expected to be injurious, inter alia, to the conduct of lawful investigations. The Court of Appeal had held that CSIS could not rely on this provision because it was said to be limited to circumstances where a reasonable expectation of harm could be established to a current specific investigation or identifiable prospective investigation. This decision was the subject of the Crown's cross-appeal.
Decision
The appeal should be allowed in part and the cross-appeal should be allowed.
Reasons
Issue 1
The challenge based on s. 8 of the Charter was subsumed into the
requester's s. 7 challenge. The s. 7 challenge was itself very narrow and related
only to the lack of discretion of the Court to decide whether a government
institution that refuses to disclose information should be allowed to make ex
parte submissions in an in camera hearing. As a general rule, s. 7 of
the Charter guarantees a fair hearing and that must include an opportunity
for the parties to know the opposing party's case so that they may address
evidence prejudicial to their case and bring evidence to prove their position.
This general rule, however, tolerates certain deviations because some situations
require secrecy. In those cases, fairness can be met through other procedural
safeguards such as subsequent disclosure, judicial review and rights of appeal.
In the context of the PA's scheme it follows that the government must have an opportunity to proceed ex parte. The use of the "national security" and "foreign confidences" exemptions is subject to two independent levels of review (e.g. the Privacy Commissioner and the Federal Court). They both have the information that is being withheld in order to determine whether an exemption has been properly claimed. Parliament thus balanced the interests in accessing personal information with the state's interest in national security and in maintaining foreign confidences. The balance achieved did not violate the level of fairness guaranteed by s. 7 of the Charter.
The provision in para. 51(2)(a) of the PA that requires that the hearing be heard in camera violated para. 2(b) of the Charter and could not be saved by s. 1 because it did not meet the proportionality test. The provision was rationally connected to a legitimate objective (reducing the risk of inadvertent disclosure of sensitive information), but it failed to only minimally impair the right guaranteed by para. 2(b) of the Charter. It was held that only those portions of the hearing that involve the merits of an exemption require that it be held in camera. Other portions of the hearing should be open.
The constitutional question was therefore answered by reading down para. 51(2)(a) such that it applied only to the admission of ex parte submissions mandated by subs. 51(3)
Issue 2
Consistent with the Supreme Court's decision in Lavigne v. Canada (Office of
the Commissioner of Official Languages), 2002 SCC 53 the Court held that the
exemption in para. 22(1)(b) of the PA is not limited to current
investigations or an identifiable prospective investigation. Since CSIS
established a reasonable expectation of probable injury to investigations in
general (as found by the Trial Division judge), it was justified in claiming
the exemption. The Crown's cross-appeal was thus allowed.
Matthew G. Yeager v. Correctional Service of Canada
and Commissioner of Corrections
Indexed as: Yeager v. Canada (Correctional Service)
|
File No.: |
A-332-01 |
|
References: |
2003 FCA 30; [2003] F.C.J. No. 73 (QL) (F.C.A.) |
|
Date of decision: |
January 22, 2003 |
|
Before: |
Stone, Isaac, Malone JJ.A. |
|
Section(s) of ATIA/PA: |
Ss. 2, 3, 4, 12, 53 Access to Information Act (ATIA); s. 3 Access to Information Regulations |
|
Other statute(s): |
S. 2(b) Canadian Charter of Rights and Freedoms |
|
|
|
Abstract
- Interpretation of subs. 4(3) ATIA and s. 3 ATIA Regulations
- Duty to produce non-existent record from machine readable record
- Whether "software" is a record
Issues
Whether the (a) data requested (Data), (b) the code book to interpret the data (Code Book), and (c) the computer software to use the data on a personal computer are records within the meaning of s. 3 ATIA.
Whether the appellants must create and supply records that do not exist but can be produced from a machine readable record.
Whether creating the records would unreasonably interfere with the operations of the institution.
Facts
The Research Branch of the Correctional Service Canada (CSC) conducts statistical research and analysis on various subjects in the field of corrections. In order to facilitate such research and analysis, the Research Branch is allowed access to several classified databases of other agencies, such as the Royal Canadian Mounted Police (RCMP), the Canadian Police Information Centre (CPIC) and the National Parole Board (NPB). Typically, CSC obtains such information online through electronic links to computer networks of the agencies mentioned above. This information may be compiled "as needed" into a temporary database that is used for statistical research and analysis and destroyed after the research project is complete. However, some projects rely on "live data" contained in current RCMP, CPIC and NPB databases that are accessed directly and, therefore, in respect of these projects, CSC does not create its own new database.
The respondent, a criminologist, sought access, from the appellants, to certain information related to his research, namely data ("Data"), a code book ("Code Book") to interpret the Data and software ("Software") to use the Data on a personal computer. This is how the Motions Judge described the material sought:
- the 1992-93 CSC release cohort currently being used to recalibrate the (GSIR) [General Statistical Indicator of Recidivism] with personal identifiers deleted (such as name of inmate/parolee, FPS number, or full date-of-birth, however year of birth will not violate privacy)...
- The Code Book used to define and identify/locate the variables in each case
- A Copy of the Offender Intake Assessment software, including the Custody Rating Scale, the GSIR, the Community Risk/Needs Management Scale among other features.
CSC and Commissioner of Corrections denied the respondent access to the records he requested.
The Motions Judge ([2001] F.C.J. No. 434 (QL) (F.C.T.D.)) ordered that the CSC and the Commissioner of Corrections provide Mr. Yeager with the requested Data and the Code Book. No order was made with respect to the software as the Motions Judge held that software was not a record. The Motions Judge did not grant the declaratory relief sought by Mr. Yeager under para. 2b) of the Charter.
The appellants appeal from the order of the Motions Judge to release the Data and the Code Book. The respondent seeks, in his cross-appeal, a declaration that the appellants' refusal contravenes para. 2(b) of the Charter, and a review of the appellants' decision not to provide him with the software.
Decision
The appeal is allowed and the cross-appeal is dismissed. (Stone J.A. dissented regarding costs.)
Reasons
Issue 1
On the first issue, the Court held that the Data and the Code Book are both
records, based on the definition of "record" in s. 3 of the Act. On the
more difficult question of whether the software is a record, the Court of Appeal
agrees with the Motions Judge's interpretation of s. 3 of the Act. This
interpretation is that software is an item used to generate, view or edit a
record, as opposed to a record itself. The software is not analogous to any of the
items listed in the definition in s. 3. The Court of Appeal agrees with the lower
Court that "If computer software was contemplated in the definition of a
'record' it would have been expressly mentioned" (para. 63)4.
Issue 2
Under subs. 4(3), a non-existent record that can be produced from an existing
machine readable record is deemed to be a record to which the respondent is
entitled to access. The Court rejected the appellants' argument that subs. 4(3)
applies to a record that already exists in machine readable form was rejected.
Since a record is expressly defined in s. 3 to include a machine readable record,
then subs. 4(1) already contemplates that a machine readable record must be
supplied to the respondent. To interpret subs. 4(3) to mean the same thing would
violate the standard rules of statutory interpretation. The Court stresses that
the plain meaning of the words in subs. 4(3) makes it clear that it applies
where a record "does not exist". The Court states (para. 38):
"The only plausible interpretation of subsection 4(3) requires the appellants to produce a record that 'does not exist' in any form, machine readable or otherwise. In enacting subsection 4(3) Parliament must have contemplated two different records: a new and distinct record must be produced from an existing machine readable record."
Lastly on this issue, the Court examines the meaning of the words "from a machine readable record" in subs. 4(3). Specifically, the Court states that: "Whether a record is indeed producible 'from' a machine readable record depends upon a number of factors, including the requisite amount of independent composition as compared to purely mechanical and routine editing or manipulation" (para. 40). The Court concludes that both the Data and the Code Book can be produced from machine readable records.
Issue 3
On the third issue, the Court states that there are two limitations on the
obligation to produce a non-existent record. The first limitation is contained in
the wording of subs. 4(3) itself, that is that non-existent records must be
produced only where they are capable of being produced "using computer
hardware and software and technical expertise normally used by the government
institution". The Court finds that CSC has the ability to recreate
the Data, and the Code Book.
The second limitation is prescribed by s. 3 of the ATIA Regulations, the essence of which is that a record "need not be produced where the production thereof would unreasonably interfere with the operations of the institution". In relation to the sufficiency of the evidence with respect to this issue, the Court decides that the Motions Judge's conclusion that there was "no evidence" on this issue should be reviewed on a standard of correctness.
Applying this test to the Motions Judge's overall weighing of the evidence, the Court of Appeal finds that the Motions Judge ignored significant evidence in the record. More specifically, in relation to the Data, the Court of Appeal finds that the Motions Judge incorrectly assessed and weighed the affidavit evidence provided by the appellants to the effect that producing the record would unreasonably interfere with the operations of CSC. The Motions Judge's task was to examine all the evidence presented to determine whether the appellants had met the statutory burden. Instead, the Motions Judge was selective in the evidence she considered and thus overlooked other evidence which was clearly relevant. In doing so, the Motions Judge was clearly wrong.
In relation to the Code Book, the Court of Appeal similarly concludes that the affidavit evidence provided by the appellants was sufficient to determine that producing a Code Book would unreasonably interfere with the operations of CSC.
The Court agreed with the Motions Judge's conclusion that the respondent's right under the Charter had not been contravened.
With regards to costs, the Court was of the view that the issues raised in the appeal and cross-appeal involved an important new principle and that the case had enormous implications both for the government institution and for the public. Costs were therefore awarded to the respondent.
Comments
Mr. Yeager has sought leave to appeal this decision to the Supreme Court of Canada.
Ken Rubin v. Minister of Health
Indexed as: Rubin v. Canada (Minister of Health)
|
File No.: |
A-575-01 |
|
References: |
2003 FCA 37; [2002] F.C.J. No. 1825 (QL) (F.C.A.) |
|
Date of decision: |
January 23, 2003 |
|
Before: |
Rothstein, Sexton and Evans JJ.A. |
|
Section(s) of ATIA/PA: |
S. 20 Access to Information Act (ATIA) |
|
|
|
Abstract
- Appeal of decision upholding the government institution's application of the exemption provided by para. 20(1)(b) of the ATIA
- Whether discretion in subs. 20(6) properly exercised
- Reliance upon additional exemption subsequent to investigation
Issues
Did the government institution properly apply the exemption provided for by para. 20(1)(b) of the ATIA when it did not investigate more than once whether or not the third party would consent to the release of the information?
Did the Trial Judge err when he decided that the government institution met its burden and proved the applicability of para. 20(1)(b)?
How does the exercise of discretion conferred under subs. 20(6) have to be exercised?
Are foreign governments entitled to the protection afforded by the s. 20 exemption?
Can the government institution invoke a mandatory exemption after the Information Commissioner has concluded his investigation?
Facts
This was am appeal from the Trial Division decision ([2001] F.C.J. No. 1298 (QL)) where the Court had dismissed an application made pursuant to s. 41 of the ATIA.
The appellant brought an application for judicial review pursuant to s. 41 of the ATIA after he requested from the respondent, and was denied, parts of a special Health Canada review on the safety of calcium channel blockers (CCB drugs).
The appellant had requested a report that contained a review of the safety of CCB drugs (the "Report"). The government institution provided the appellant with a first edited version of the Report that had been created for public release but withheld other portions pursuant to paras. 20(1)(b) and (c) of the ATIA. The appellant complained to the Information Commissioner. As a result, the government institution undertook another review of the Report and later provided the appellant with a second edited version. It continued to withhold some information pursuant to paras. 20(1)(b) and (c) of the ATIA. By letter dated some two months after the Information Commissioner's investigation was over, the government institution informed the appellant that it had also relied on s. 13 of the ATIA (information obtained in confidence from the government of a foreign state) to exempt some of the information. The s. 13 exemption was not part of the Information Commissioner's investigation.
The Information Commissioner concluded that the para. 20(1)(b) exemption had been properly applied and the discretion contained in subs. 20(6) had been properly exercised.
Decision
The appeal was dismissed.
Reasons
The appellant's argument that the government institution ought to inquire of third parties more than once to seek their consent to release their confidential information was not supported by the ATIA. In this case, the third party's initial response to the government institution was sufficient evidence that the third party was exerting confidentiality over the information.
Whether the government institution has satisfied its burden that para. 20(1)(b) is applicable is a question of mixed fact and law to be determined by the Trial Division Judge hearing the application. In this case, the government institution submitted evidence that, on the basis of submissions from third parties, it considered the information to be confidential. The Trial Division Judge is entitled to considerable deference with respect to findings of mixed fact and law, absent an extricable legal error. Barring a palpable and overriding error, the Court of Appeal will not interfere with a finding of mixed fact and law by a Trial Division Judge under the ATIA.
Subsection 20(6) confers on the head of the government institution the authority to exercise his or her discretion to disclose, among other things, otherwise confidential information if such disclosure would be in the public interest as it relates to public health. However, nothing in subs. 20(6) expresses or implies specific conditions or requirements that attach to or fetter that exercise of discretion. Generally, a discretionary decision requires that regard be had to relevant considerations and not to irrelevant considerations, that it be in accordance with relevant law and that there be compliance with principles of natural justice. The appellant was not able to demonstrate that there had not been adherence to these well-known considerations. There was public and confidential evidence upon which the decision not to disclose was based. There was no failure to adhere to relevant statutory provisions in the ATIA.
The appellant's argument that foreign governments are not entitled to the protection granted to third party confidential information is not supported by the wording of s. 20. The definitions of "third party" and "government institution" in the ATIA do not indicate that a foreign government cannot be a third party under s. 20. While foreign governments are expressly referred to in s. 13, there is no reason why, in appropriate circumstances, they may not also be third parties under s. 20.
The Court of Appeal did not deal with the issue of whether or not the government institution could rely on the late application of another mandatory exemption (in this case, s. 13) because the Court was satisfied that the government institution properly relied on s. 20.
Minister of Environment v. Information Commissioner
of Canada and Ethyl Canada Inc
Indexed as: Canada (Information Commissioner) v. Canada (Minister of
Environment
|
File No.: |
A-233-01 |
|
References: |
2003 FCA 68; [2003] F.C.J. No. 197 (QL) (F.C.A.) |
|
Date of decision: |
February 7, 2003 |
|
Before: |
Décary, Noèl and Sharlow JJ.A. |
|
Section(s) of ATIA/PA: |
Ss. 25, 69(1) (a), (b), (e), (3)(b) Access to Information Act (ATIA) |
|
Other statute(s): |
S. 39(2)(b), (4)(b) Canada Evidence Act (CEA) |
|
|
|
Abstract
- Refusal to release "discussion papers" on basis of s. 69(1)(a) and (e) ATIA (Cabinet confidences)
- Certificate issued under s. 39(2)(a) and (e) CEA
- Jurisdiction of Court to review decision whether record is Cabinet confidence and to review issuance of certificate under CEA
- Standard of review
- Meaning of "discussion papers"
Issues
Did the Applications Judge have jurisdiction to review the decision made by the Minister of Environment under paras. 69(1)(a) and (e) ATIA and to review the issuance of the certificate by the Clerk of the Privy Council Office under paras. 39(1)(a) and (e) of the CEA?
If there was jurisdiction, did the Applications Judge err in applying a standard of correctness to the Minister's decision?
Did the Applications Judge err in his interpretation of the words "discussion papers" in s. 69 ATIA and "discussion paper" in s. 39 CEA?
Did the Applications Judge err in ordering that any severable information be disclosed?
Facts
This is an appeal from a decision of the Trial Division ([2001] 3 F.C. 514) granting the application for judicial review filed by the Information Commissioner against the decision of the Minister of Environment, on the advice of the Privy Council Office, denying Ethyl Canada access to four documents which both the Minister and the Privy Council Office determined to be Cabinet confidences pursuant to paras. 69(1)(a) (memoranda to Cabinet) and (e) (briefs to ministers) of the ATIA. In the course of the judicial review proceedings, the Clerk of the Privy Council objected to the disclosure of the documents and issued a certificate under paras. 39(1)(a) and (e) of the Canada Evidence Act (CEA), certifying that the four documents at issue were Cabinet confidences.
Ethyl's request was for "Discussion Papers, the purpose of which is to present background explanations, analyses of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to [MMT]" (a gasoline additive).
Section 69 of the ATIA excludes Cabinet confidences from the operation of the Act. However, an exception is made for "discussion papers" in the case where a Cabinet decision has been made public (subpara. 69(3)(b)(i)) or in the case where four years have passed since the decision was taken (subpara. 69(3)(b)(ii)). At the time of Ethyl's request in 1997, Cabinet's decision with respect to MMT had been made public when the government introduced Bill C‑94 (Manganese-based Fuel Additives Act) in May 1995.
The Applications Judge ruled that he had jurisdiction to review the decision of the Minister made under the ATIA, and to review the issuance of the certificate made under the CEA, but that his review was limited to a consideration of the evidence on the record and to any error appearing on the face of the certificate.
In considering the evolution of the Cabinet paper system, the Applications Judge found that the type of discussion previously reflected in a separate document identified as a "discussion paper" was, during the period in issue, moved to the "Analysis" section of the memorandum to Cabinet. He ordered that the documents at issue be returned to the Clerk of the PCO to determine whether they contained background explanations, analyses of problems or policy options and further ordered that the information be released to the requester if deemed severable by the Clerk.
Decision
The appeal is allowed in part.
Reasons
Issue 1-Jurisdiction of Court
In conducting his review, the Applications Judge considered evidence regarding the
evolution of the Cabinet paper system which led him to conclude that the Clerk had
misapprehended the law. In so doing, the Applications Judge acted within the
confines of the limited scope of review described in Babcock v. Canada
(Attorney General), 2002 SCC 57. The judgment in Babcock makes clear
that courts can review decisions which "do not flow from statutory
authority clearly granted and properly exercised" and may consider
"surrounding evidence" to determine whether statutory power has been
properly exercised (Babcock, paras. 39-41).
Issue 2-Standard of review
The Court of Appeal affirmed the Applications Judge's conclusion that the
appropriate standard of review in this case was correctness. The Applications
Judge had characterized the issue as a question of law, namely the proper meaning
of "discussion papers".
Issue 3-Meaning of "discussion papers"
The Court of Appeal dismissed the appellants' argument that the Applications Judge
erred in construing the words "discussion papers" in para. 69(1)(b) ATIA
and "discussion paper" in para. 39(1)(b) of the CEA. While the
Court agreed that the words "discussion paper[s]" did not apply to
information per se, it found that the Applications Judge's order was
intended to compel the disclosure of such discussion to the extent that it
continued to be produced, albeit within or appended to other documents. The Court
was of the view that the order of the Applications Judge was potentially confusing
on this latter point because it did not specifically refer to the purpose
contemplated by para. 69(1)(b) ATIA and para. 39(1)(b) CEA
("discussion papers the purpose of which is to present background
explanations, analyses of problems or policy options to Council for consideration
by Council in making decisions"). According to the Court, this purpose was
essential to the validity of the Applications Judge's order and could not be
ascertained with respect to the documents at issue "unless there was, within
those documents or appended to them, an organized body or corpus of words
which, looked upon its own, comes within the definition of 'discussion
paper(s)'". The Court specified that this exercise does not require a
line-by-line analysis of the documents. What is required, according to the Court,
is that the person reviewing the documents determines whether there is, within or
appended to the documents, an organized body or corpus of words which,
looked upon its own, meets the definition of "discussion papers".
Issue 4-Exemptions
The Minister should be given an opportunity to claim any exemption that might
apply to the severable information. The position of the government officials that
the four documents were entirely outside the purview of the ATIA, as well
as the fact that third party rights may be affected, led the Court to distinguish
the present case from those which "suggest [...] that a government
institution ought to claim the relevant exemption at the initial stage, at least
insofar as non-mandatory exemptions are concerned".
The order of the Applications Judge was therefore varied to provide that the Clerk of the PCO review the documents at issue (1) to determine whether there exists, within or appended to the documents, a corpus of words falling within the definition of "discussion papers", that can be reasonably severed from the documents pursuant to s. 25 ATIA and (2) in the affirmative, that such corpus be severed and released to the requester subject to any exemption under the ATIA.
Dzevad Cemerlic v. Solicitor General of Canada
Indexed as: Cemerlic v. Canada (Solicitor General)
|
File No.: |
T-571-01 |
|
References: |
2003 FCT 133; [2003] F.C.J. No. 191 (QL) (F.C.T.D.) |
|
Date of decision: |
February 7, 2003 |
|
Before: |
Kelen J. |
|
Section(s) of ATIA/PA: |
Ss. 8(2)(m)(i), 16(2), 18, 19, 21, 26, 28, 47, 51 Privacy Act (PA); ss. 13(1), 14 Privacy Regulations |
|
|
|
Abstract
- No effort to obtain third party consent under para. 19(2)(a) and no evidence of established protocol
- No evidence of discretionary balancing of competing interests as mandated under s. 26 and subpara. 8(2)(m)(i)
- Requirement under s. 28 that head of institution assess requester's best interests
- Reasonableness of policy of neither denying nor confirming existence of personal information
Issues
Did CSIS err by refusing to disclose personal information pursuant to the exemptions in ss. 19 (foreign government), 21 (international affairs and defence), 26 (third party information) and 28 (medical information) of the Act?
Did CSIS err by refusing to confirm or deny the existence of information in two personal information banks (national security and counterintelligence) pursuant to subs.16(2))?
Did CSIS undertake a proper search of the personal information banks which it claims contain no information on the applicant?
Facts
The applicant requested, pursuant to subs. 12(1) PA, that CSIS produce all information related to him in its personal information banks. CSIS informed the applicant that:
- there was no information concerning the applicant in Bank Number: SIS PPU 015 (CSIS Records), Bank Number: SIS PPU 020 (Access Request Records), Bank Number: SIS PPU 025 (CSIS Candidates) and Bank Number: SIS PPU 040 (Unlawful Conduct Investigations);
- respondent was disclosing 32 pages of information found in Bank Number: SIS PPU 005 (Security Assessments / Advice), but was applying exemptions to some of the information pursuant to ss. 19 and 21 of the Act;
- respondent was disclosing 49 pages of information found in Bank Number: SIS PPU 035 (Complaints Against CSIS or Its Employees), but was applying exemptions to some of the information pursuant to s. 21;
- respondent was disclosing 5 pages of information found in Bank Number: SIS PPU 055 (Security and Integrity of Government Property, Personnel and Assets), but was applying exemptions to some of the information pursuant to ss. 21, 26 and 28;
- Bank Number: SIS PPU 045 (CSIS Investigational Records) has been designated an exempt bank and the respondent refused to confirm or deny whether personal information about the applicant existed in the bank; and that
- in accordance with subs. 16(2) of the Act, the respondent refused to indicate whether personal information about the applicant existed in Bank Number: SIS PPU 050 (Self Protection Activity).
The applicant filed a complaint with the Privacy Commissioner alleging CSIS had denied him access to his personal information in banks 005, 035, 040 and 055. The Commissioner responded that CSIS had the authority to refuse to grant access to some of the requested information held in banks PPU 005, 035 and 055 and confirmed that CSIS searched bank PPU 040 in order to locate personal information about the applicant and that none was found. The Commissioner also confirmed that CSIS had undertaken a search for information in banks 015, 020 and 025, but did not find any information related to the applicant in these banks. The Commissioner was also satisfied that the response received by the applicant from CSIS with respect to banks 045 and 050 was in accordance with the requirements of the Act.
The applicant seeks judicial review of the respondent's refusal to disclose some of the information sought.
Decision
The matter was returned to CSIS for a new review of the application of ss. 19, 26 and 28 to personal information banks 005 and 055. CSIS complied with the Act by searching its records for information about the applicant, and providing almost all of this information to the applicant, and informing the applicant that no information about him existed in its other information banks.
Reasons
The Court addressed two preliminary issues.
Firstly, the hearing was conducted in an open court, with the exception of the details of the exemptions claimed by the government under para. 19(1)(a) and s. 21 PA which were conducted in camera and ex parte as required by s. 51 PA. This process was in accordance with the Supreme Court of Canada decision in Ruby v. Canada (Solicitor General), 2002 SCC 75 (reversing in part [2000] 3 F.C. 589 (C.A.)).
Secondly, with respect to the burden of proof, the Court adopted the approach set out in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R.147 (F.C.T.D.). Hence, mandatory exemptions and factual determinations are to be assessed on a correctness standard. With respect to discretionary decisions, the Court will assess whether the government institution has exercised its discretion "within proper limits and on proper principles": Ruby (F.C.A.), at para. 39, and "in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted": Kelly at p. 149.
Issue 1
(a) S. 19-Information received in confidence from foreign government
Section 19 is a qualified mandatory exemption: disclosure must be refused
unless the government institution consents to the disclosure of the information or
makes the information public. Paragraph 19(2)(a) creates a "consent
requirement" which requires, in the words of the Court of Appeal in Ruby,
supra, "a request to the head of that government institution to make
reasonable efforts to seek the consent of the third party who provided the
information" (para. 110). The evidence did not show that CSIS made any
efforts to obtain consent to release the information from the third party who
provided it.
The Court did not agree with the respondent's submission that the seeking of consent did not need to be done on a case-by-case basis. The statements of the Court of Appeal in Ruby at para. 110 were interpreted as waiving the requirement for a government institution to seek consent if it is acting pursuant to an established protocol that respects the spirit and the letter of the Act and the exemption. Other than a general statement that this information was received "in confidence", the respondent has not provided the Court with evidence of an established protocol regarding the release of personal information. The respondent must do more than simply assert information received "in confidence" to meet its obligation under para. 19(2)(a).
Moreover, the respondent's assertion that it is within the discretion of the government institution to determine what is appropriate in each case does not respect the spirit of the Act, which requires a government institution to justify the withholding of personal information. To allow a government institution to decide what is appropriate in every case would undermine the very purpose of the "consent requirement" in para. 19(2)(a). As applicants generally do not know the nature of the withheld information or from whom it was obtained, in the majority of cases it will be virtually impossible for an applicant to obtain the consent of the third party. As such, allowing a government institution to determine when consent will be sought renders para. 19(2)(a) meaningless.
(b) S. 21-Information injurious to international affairs and defence
Based on both the public and confidential affidavits of the Director General of
Internal Security for CSIS, and in light of MacKay J.'s statement in Ternette
v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), pertaining to the
"mosaic effect" of information, the respondent successfully demonstrated
that the information fell within the exemption found in s. 21. While the release
of the exempted information in this case alone might be insignificant, if such
information was disclosed on a regular basis, it would undoubtedly threaten
the integrity of CSIS operations. Further, the Court reviewed the exempted
information and found that it only concerned CSIS' methods of cross-referencing,
filing and categorizing information and was not relevant to the applicant's
personal situation.
(c) S. 26-Third party information
Section 26 prohibits the disclosure of personal information concerning a third
party without the consent of the third party unless one of the circumstances
enumerated in subs. 8(2) applies. Section 26, like s. 19, can therefore be
described as a qualified mandatory exemption.
Section 26 requires a government institution to consider subpara. 8(2)(m)(i) and to conduct a discretionary balancing of the public interest in disclosure, against the right to privacy of third parties (Ruby (F.C.A.), paras. 121 and 124).
The Court was not satisfied that CSIS conducted a discretionary balancing of the competing interests involved in applying the exemption found in s. 26. The only evidence on this issue was a blanket statement by CSIS that some personal information was exempted pursuant to s. 26 because it concerned identifiable individuals. While the Court accepted that the withheld information concerned third parties and fell within the scope of s. 26, the Court found that CSIS failed to balance the privacy interests of the third parties involved with the fact that the withheld information simply contained names of third persons identified by the applicant in his discussions with CSIS.
(d) S. 28-Medical information
There are two requirements that must be met before s. 28 can be applied.
The first requirement is that the information in question must relate to the
physical or mental health of the individual who requested it, of which there is no
question in this case. The second requirement is an assessment by the head of a
government institution on whether the release of the requested information is in
the best interests of the individual.
A government institution bears a heavy onus in justifying an exemption under s. 28. Unlike the other exemptions in the Act, which balance an individual's right to personal information with the interests of others, s. 28 involves a balancing of an individual's right to personal information with his or her own best interests as determined by the head of a government institution. In our society, individuals are generally entitled to decide what is in their own best interests. This entitlement should not be taken away lightly.
There was no indication that CSIS engaged in any form of analysis as to what was in the best interests of the applicant. Furthermore, there was no consultation with a duly qualified medical practitioner or psychologist (as authorized under subs. 13(1) of the Privacy Regulations), nor any consideration given to the possibility of allowing the applicant access in the presence of a duly qualified medical practitioner or psychologist (pursuant to s. 14 of the Privacy Regulations). While the failure to consider these two options was not in itself a reason to override CSIS' decision, it contributed to the Court's finding that CSIS failed to properly analyse what was in the best interests of the applicant as required by s. 28.
Issue 2
(a) Bank 045-CSIS investigations (national security)
Pursuant to s. 18, bank 045 has been designated as an exempt bank. Under subs.
18(2), a government institution may withhold information that is contained in an
exempt bank.
Subsection 16(2) permits a government institution to adopt a policy of neither confirming nor denying the existence of information in a personal information bank (Ruby (F.C.A.), paras. 65-66). The implementation of a policy of this nature under subs. 16(2) involves an exercise of discretion by the government institution, which must be exercised reasonably in the context of the factual circumstances involved.
Bank 045 contains information on individuals who are or were under investigation by CSIS on the suspicion that they have been involved in activities that constitute a threat to the security of Canada. Like the situation in Ruby (F.C.A.), if CSIS revealed the existence or non-existence of information in bank 045 to a requesting party, it would in effect be disclosing to that individual whether they were a target of a CSIS investigation. In the context of these factual circumstances, the Court found CSIS acted reasonably in adopting a uniform policy of neither confirming nor denying the existence of information in bank 045.
(b) Bank 050-Counter intelligence information
The information in bank 050 is intended to support CSIS' counter intelligence
program and allows CSIS to protect itself from infiltration by hostile foreign
services and others whose interests are inimical to the interests of Canada.
Acknowledging the existence of information in bank 050 would reveal to an
individual whether he or she is the subject of a counter intelligence operation
and would compromise the security of Canada by detrimentally affecting CSIS'
ability to carry out counter intelligence operations. The Court found that the
respondent properly exercised its discretion under subs.16(2) by refusing to
confirm or deny the existence of personal information concerning the applicant in
bank 050.
Issue 3
Based on the evidence, the Court was satisfied that there were no records relating
to the applicant in information banks 015, 020, 025 and 040. The applicant
reported that he had filed 930 "detailed complaints" with CSIS since
1999. Since the subject of this hearing was an application for access dated August
7, 1997, only personal records in existence on or before that date
were relevant.
Salvatore Fuda v. Royal Canadian Mounted Police and
Solicitor General of Canada
Indexed as: Fuda v. Canada (Royal Canadian Mounted Police)
|
File No.: |
T-1185-01 |
|
References: |
2003 FCT 234; [2003] F.C.J. No. 314 (QL)(F.C.T.D.) |
|
Date of decision: |
February 24, 2003 |
|
Before: |
Tremblay-Lamer J. |
|
Section(s) of ATIA/PA: |
Ss.16(2), 18, 22(1)(a), 47 Privacy Act (PA) |
|
|
|
Abstract
- Personal information obtained by investigative body
- Exempt banks
- Exercise of discretion under para. 22(1)(a)
- Refusal to confirm or deny
Issues
Did the RCMP properly exercised its discretion under para. 22(1)(a) PA?
Did the RCMP's decision to neither deny nor confirm the existence of personal information comply with the PA?
Facts
The applicant is the chairman of Ontex Resources Ltd., a public limited liability company. The company's application to be listed on the Toronto Stock Exchange was refused, allegedly because the applicant was involved in organized crime. The applicant made a request to the RCMP, under the PA, for access to all information about him or the companies with which he was associated. Two personal information banks were searched: PPU 005 (Operational Case Records) and exempt bank PPU 015 (Criminal Operational Intelligence Records). The RCMP refused to disclose the information contained in bank PPU 005 primarily on the basis of para. 22(1)(a). It neither confirmed nor denied whether any personal information relating to the applicant existed in information bank PPU 015 and was advised that if such information existed, it would be exempt from disclosure pursuant to para. 22(1)(a).
The applicant argues that, since he has not seen the documents in question there is a higher onus on the RCMP to show that it properly exercised its discretion under para. 22(1)(a).
Decision
The application for judicial review was dismissed.
Reasons
The inability of the applicant or his counsel to see the exempt information does not place a higher onus on the RCMP to justify its decision. Any improper exercise of discretion is resolved by the Court's ability to scrutinize the government institution's actions. The lawfulness of this exercise of discretion is reviewed on a standard of reasonableness; it is not for the Court to substitute its own view.
In the case at bar, the Court was satisfied that the applicant's personal information fell within the description of para. 22(1)(a): the information was less than 20 years old and was obtained by the RCMP during lawful investigations of the applicant in organized crime. It was reasonable for the respondent to refuse to disclose this information; the discretion was exercised for a reason rationally connected to the purpose for which it was granted.
Relying on Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.)5 at para. 49, the Court found that the respondent's decision to neither confirm nor deny the existence of personal information about the applicant in the exempt personal information bank PPU 015 complied with the PA. The information in that bank is exempt because sensitive investigations would be jeopardized if the individuals or organizations involved were able to ascertain what was already known or not know about them, the methods of operations used, the extent of coverage and the sources of reporting their activities. The Court added that if any information were to exist, it would be reasonably expected to be exempted under para. 22(1)(a).
H.J. Heinz Company of Canada Ltd. v. Attorney General
of Canada
Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)
|
File No.: |
T-1470-00 |
|
References: |
2003 FCT 250; [2003] F.C.J. No. 344 (QL) (F.C.T.D.) |
|
Date of decision: |
February 27, 2003 |
|
Before: |
Layden-Stevenson J. |
|
Section(s) of ATIA/PA: |
Ss. 19, 20(1)(b), (c), 20(6), 25, 27, 28, 44, 51 Access to Information Act (ATIA) |
|
|
|
Abstract
- Scope of request–Meaning of "correspondence"
- Applicability of s. 19 in a s. 44 review
- Para. 20(1)(b) criteria
- Mere speculation of harm insufficient for para. 20(1)(c)
Issues
Does the term "correspondence" encompass only letters with the result that the records sought do not come within the scope of the request?
Can the applicant raise the s. 19 ATIA exemption in order to justify non-disclosure in a s. 44 review?
Did the Canadian Food Inspection Agency err in its application of paras. 20(1)(b) and (c) to the records proposed to be disclosed?
Facts
This case deals with an application by H.J. Heinz Company of Canada Ltd. (Heinz) under subs. 44(1) of the ATIA.
The Canadian Food Inspection Agency (CFIA) received an access request for records containing information concerning a third party (Heinz). The records included information pertaining to the operations of the commercial enterprise or information that relates or pertains to matters of finance or commerce. CFIA invited Heinz to identify any information it wished to protect along with its explanation supporting the non-disclosure.
Heinz made submissions to CFIA indicating that the records should not be disclosed because the records contain financial, commercial, scientific and technical information that is confidential information supplied to CFIA by Heinz and that has been treated consistently as confidential by Heinz. Heinz further alleges that the records contain information, the disclosure of which could reasonably be expected to result in material loss to Heinz and could reasonably be expected to prejudice the competitive position of Heinz. Lastly, Heinz alleges that the disclosure of the information in the records would not be in the public interest.
CFIA determined that the applicant's justifications were insufficient to withhold all of the requested information. Therefore, CFIA informed Heinz of its intention to release the records, subject to certain redactions. Heinz thereafter applied for judicial review, seeking an order prohibiting the disclosure of the records or, alternatively, an order prohibiting the release of the records without redaction.
Decision
The application to prohibit the release of the records or portions was substantially allowed with costs.
Reasons
Issue 1
The initial request was for various documents pertaining to a variety of topics.
The request was subsequently modified to include only "correspondence"
related to specified topics. The applicant's submission that
"correspondence" included letters only was rejected. The Court referred
to the definition of "correspondence" in the Oxford Dictionary, 2nd ed.,
to conclude that, while "correspondence" includes letters, it is not so
restricted and does include a "communication" as argued by the
respondent.
Issue 2
The respondent's submission that s. 44 does not confer the right to oppose
disclosure on the basis of exemptions or exclusion other than subs. 20(1) was
rejected. Firstly, the Court distinguished St. John Shipbuilding Ltd. v. Canada
(Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.) stating (a)
that the comments made therein to the effect that a third party's interest is
limited to matters set out in subs. 20(1) were to be read in their context (which
the Court herein restricted to St. John's argument that the records were not
responsive to the request) and (b) that the Court's comments in St. John regarding
s. 15 ATIA related to a discretionary exemption, not a mandatory one like
the one at issue. Secondly, while the notice provision in s. 27 refers
specifically to the provisions of s. 20, there is no such reference in s. 28.
Section 28 provides that the third party may make "representations" as
to why the record or part thereof should not be disclosed. They are no stated
restrictions as to the representations available to the third party provided that
they are relevant to the issue of disclosure. Finally, the Court, relying on Siemens
Canada Ltd. v. Canada (Minister of Public Works and Government Services),
[2001] F.C.J. No. 1654 (QL) (F.C.T.D.); aff'd [2002] F.C.J. No. 1475 (QL)
(F.C.A.), concluded that if the s. 24 mandatory exemption was available to a third
party (as found in Siemens), so too must be the mandatory exemption
provided for in s. 19. To hold otherwise would yield an irrational and illogical
result and one that would be contrary to the principles of statutory
interpretation articulated in Rizzo and Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27.
Issue 3
The applicant must satisfy four requirements to establish that the para. 20(1)(b)
exemption from disclosure is warranted:
- the information is financial, commercial, scientific or technical;
- the information is confidential;
- the information was supplied to the government institution by a "third party", and
- the information was treated consistently in a confidential manner.
With respect to the first requirement, the Court adopted the approach set out in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.) that the words therein are to be commonly understood. As a result, some, but not all of the information in the records qualified as being commercial, financial, scientific or technical.
With respect to the second requirement, the Court held that the applicant met the three-fold test laid out in Air Atonabee to establish confidentiality. More specifically, the Court was satisfied, based on the evidence, that Heinz' relationship with CFIA was consistent with the public interest as confidentiality of the information "enabled and encouraged [Heinz] to be open and frank with inspectors".
With respect to the third requirement, the Court found that although the records were created by CFIA, they contained information supplied by Heinz and only the latter can be subject to a para. 20(1)(b) analysis.
Finally, the evidence showed that the final requirement was met.
The applicant failed to demonstrate that disclosure would result in a reasonable expectation of probable harm to its competitive position pursuant to para. 20(1)(c). The threshold is probability, not possibility nor speculation.
The Court's obligation with respect to severance is found in s. 51 of the ATIA. Pursuant to that provision, the Court ordered that, except for the passages specifically severed, the records were to be disclosed.
Comments
The Attorney General of Canada has appealed this decision.
Brookfield Lepage Johnson Controls Facility Management
Services v. Minister of Public Works and Government Services
Indexed as: Brookfield Lepage Johnson Controls Facility Management Services v.
Canada (Minister of Public Works and Government Services)
|
File No.: |
T-2337-00 |
|
References: |
2003 FCT 254; [2003] F.C.J. No. 348 (QL) (F.C.T.D.) |
|
Date of decision: |
February 28, 2003 |
|
Before: |
Layden-Stevenson J. |
|
Section(s) of ATIA/PA: |
S. 20(1)(a), (b), (c) Access to Information Act (ATIA) |
|
|
|
Abstract
- "Rhetorical presentation" not trade secret
- Confidentiality agreements not trumping ATIA
- Generic and general information not inherently confidential
- General statements of possible harm not meeting para. 20(1)(c) test
Issue
Whether paras. 20(1)(a), (b) and (c) ATIA apply to the records at issue.
Facts
The applicant provides professional facility management services to property owners and tenants across Canada.
The respondent issued a request for proposals for the management of its properties in eastern Quebec and also issued twelve other requests for proposals relating to management of its properties in other parts of Canada. In colloquial terms, the respondent called for "privatisation" proposals. When it did so, bidders were requested to specify any information considered to be proprietary and therefore not subject to disclosure without consent, or use by government for any reason other than evaluation of the proposal.
The applicant prepared and submitted bids for each of the proposals and was the successful bidder in all thirteen procurements. In submitting its bid, the applicant's title page contained a statement to the effect that the information contained in the document "is proprietary" to the applicant and that use or disclosure, except for purposes of evaluation of the proposal, "is prohibited" without the applicant's written permission.
A request for access to information regarding two of the portfolios was made and later amended to require information about specific portions of the portfolios. After reviewing the records responsive to the request, the respondent determined that the records contained "third party" information relevant to the applicant and notified the latter. Upon review of the applicant's submissions, the respondent determined that there existed insufficient justification to prevent disclosure of the records. It informed the applicant of its decision to release the requested records with specific portions and pages deleted. The applicant seeks judicial review against the decision to release.
Decision
The application was dismissed with costs to the respondent.
Reasons
Para. 20(1)(a)-Trade secrets
The applicant argued that its unique formula for responding to requests for
proposals is a trade secret under para. 20(1)(a). According to the applicant, a
trade secret does not have to be something of a scientific or technical nature but
can include art, craft and rhetorical design. A trade secret would include
information that is not confidential, but is nonetheless worthy of protection
because of the circumstances of its presentation. Thus, it submitted that, to
the extent that the records in issue are not confidential, they are a trade
secret by virtue of presentation.
The applicant's "rhetorical presentation" did not constitute a trade secret. The "presentation" constituted no more than what one would expect of any individual attempting to secure employment, a contract, placement in a specific program at an educational institution and so on. The "technique" consists of nothing more than the age-old skill of putting the punch in the first paragraph and creating a positive first impression. This is not a trade secret by definition.
Para. 20(1)(b)-Confidential information
The applicant argues that the information in the records, which concerned its
human resources policies and the various benefits it provides to its employees,
was protected under para. 20(1)(b). The respondent conceded that the information
was provided by the third party and that it consistently treated the records
as confidential. The Court, albeit with reservation, assumed that the records
contained commercial information.
The remaining issue was whether the information was confidential in an objective sense. While confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the Act. The applicant's characterization that all information was "proprietary" do not suffice to make it confidential in an objective sense: Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.).
Of greater significance were the comments made by Strayer J. in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.). Relying on Société Gamma, the Court found that the records consisted of generic and general information that was not of an inherently confidential nature. Also relying on Promaxis Systems Inc. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 204 (F.C.T.D.), the Court found that, for reasons of public policy, the information was not confidential information within the meaning of para. 20(1)(b), however it may have been treated and considered by the applicant.
Para. 20(1)(c)-Harm to competitive position
The applicant submitted for various reasons that there existed a reasonable
expectation of harm to its competitive position if the records were disclosed.
The Court concluded that, aside from general statements of possible harm, the applicant failed to provide evidence that there exists a reasonable expectation of probable harm if the records in question were released. Specifically, the applicant's statements regarding prejudice that may occur were of a general nature and failed to provide insight as to how the competitors might use the record so that the applicant will sustain a reasonable expectation of probable harm.
Information Commissioner of Canada v. Commissioner of
the Royal Canadian Mounted Police and Privacy Commissioner of Canada
Indexed as: Canada (Information Commissioner) v. Canada (Commissioner of the Royal
Canadian Mounted Police)
|
File No.: |
28601 |
|
References: |
2003 SCC 8; [2003] S.C.J. No. 7 (QL) (S.C.C.) |
|
Date of decision: |
March 6, 2003 |
|
Before: |
McLachlin, C.J., Gonthier, Iacobucci,Major,Bastarache, Binnie, Arbour, LeBel and Deschamps JJ. |
|
Section(s) of ATIA/PA: |
Ss. 2(1), 19(1), 41, 42, 49 Access to Information Act (ATIA); s. 3(b), (j) Privacy Act (PA) |
|
|
|
Abstract
- Request for information about RCMP members refused under s. 19 ATIA
- Standard of review
- Definition of "personal information"
- Meaning of "employment history" in para. 3(b) PA
- Scope of para. 3(j) PA
Issues
What is the standard of review applicable to the decision of the RCMP Commissioner?
Does the information requested constitute "personal information" as defined in s. 3 of the Privacy Act?
If so, does the information fall within the exception set out in para. 3(j) of the Privacy Act?
Facts
The RCMP received a request under the ATIA for information concerning some of its members. The requester sought a "list of the communities of postings" of four named members, including the dates, copies of all public complaints filed against each of them and the name and address of the member or former member who served in a specified detachment. The RCMP initially exempted all of the information from disclosure under subs. 19(1) of the ATIA, on the grounds that the records contained "personal information" pursuant to s. 3 of the Privacy Act (PA). A complaint was filed and, in the course of the Information Commissioner's investigation, the RCMP decided to release information concerning the current postings and positions of the four serving RCMP members and the last posting and position of the retired RCMP member. However, the RCMP maintained its position that the remaining information was "personal information" exempt from disclosure.
The Information Commissioner found that the information relating to the previous RCMP postings of the four officers, as well as certain other job-related information contained in the relevant records did not constitute "personal information". He thus recommended that the RCMP disclose (1) the list of historical postings of the RCMP members, their status and date; (2) the list of ranks, and the date the members achieved those ranks; (3) their years of service and (4) their anniversary date of service. The RCMP refused. The Information Commissioner thereupon applied for judicial review of the RCMP's decision.
The Trial Division of the Federal Court ((1999), 179 F.T.R. 75) held that the general nature of para. 3(j) PA was not retrospective. The Court was of the view that little would be left of the protection afforded to "employment history" under para. 3(b) were para. 3(j) to be given a retrospective bearing. Cullen J. therefore concluded that subparas. 3(j)(i) to (iii) applied only to the current positions of the RCMP officers or to the position last held by the retired officer; the remaining information fell witnin para. 3(b)6. Cullen J. also found that the RCMP failed to consider subpara. 8(2)(m)(i) PA.
The Federal Court of Appeal ([2000] 3 F.C. 70) held that neither the purpose nor the wording of para. 3(j) or subpara. 3(j)(i) require an interpretation that would restrict their application to current positions. Therefore, para. 3(j) authorizes the release of information about an individual's position, whether current or past. However, the Court emphasized that a request for a named individual's position, especially in respect of his past positions, cannot constitute a fishing expedition; such a request had to be specific as to time, scope and place. The Court therefore concluded that the request at issue, when assessed in its totality and in relation to its primary focus, was for specific individuals' employment histories, and not information about a current or a specific past position. Thus, the Court dismissed the Information Commissioner's appeal.
Decision
The appeal is allowed.
Reasons
Issue 1-Standard of review-Correctness applicable to the determination
of whether the information falls within the definition
The standard of review is to be determined applying the functional and pragmatic
approach which involves the consideration of four factors. (1) Presence or absence
of a privative clause or statutory right of appeal: the absence of a
privative clause in the ATIA, in conjunction with the explicit provisions
conferring on the Federal Court the power to review refusals (ss. 41 and 42), and
the importance ascribed by the ATIA to independent review (subs. 2(1)), are
indicative of Parliament's intention that the court have broad review powers. (2)
Expertise of the tribunal in relation to that of the reviewing judge: the RCMP
Commissioner has no expertise in the interpretation of the ATIA
and the PA, which further invites broad powers of review. (3) Purpose
of the legislation: a less deferential standard of review advances the objectives
stated in subs. 2(1) of the ATIA, i.e. that decisions on the disclosure of
government information be reviewed independently of government and that exceptions
to the right of access be limited and specific. (4) Nature of the issue: the
nature of the issue-the interpretation of para. 3(j)-is a question of law that
does not turn on any finding of fact.
In light of those factors, the Court finds that the decision of the RCMP Commissioner ought to be reviewed on a standard of correctness.
Issue 2-The records sought contained "personal information"
By defining "personal information" as "information about an
identifiable individual that is recorded in any form including [...]",
Parliament defined this concept broadly. Therefore, there was no doubt that the
information sought contained "personal information" within the meaning
of s. 3 of the PA.
Generally, once it is determined that the information requested falls within the opening words of the definition of "personal information", it is not necessary to determine whether it is also encompassed by one of the specific non-exhaustive examples set out in paras. 3(a) to (i). However, since the dispute at bar concerned the relationship between "employment history" (para. 3(b)) and the exception to the definition of "personal information" in para. 3(j), the Court proceeded to determine the meaning of "employment history".
There is no reason to limit the scope of the expression "employment history" to particular aspects of employment or to modify its usual meaning. Parliament referred broadly to "employment history". There is no evidence of an intent to limit its meaning. Furthermore, the use of the words "relating to" in para. 3(b) suggests that it has a broad scope. In the absence of clear legislative intent to the contrary, the ordinary meaning of the legislative provision must prevail. The ordinary meaning of "employment history" includes not only the list of positions previously held, places of employment, tasks performed, but also any personal evaluations an employee might have received during his career. The meaning is consistent with the objective of the Privacy Act which is the protection of information relating to an individual identity. Parliament set out s. 3 of the PA in very broad language and it is not for the Court to limit the scope of that section. In the case at bar, there is no doubt that the requested information relates to "employment history" within the meaning of para. 3(b).
Issue 3-Exclusion from the definition of "personal information"
Rulings in courts below
The SCC rejected Cullen J.'s finding that paras. 3(j)(i) to (iii) were not
retrospective.
First, the very wording of para. 3(j) shows that the provision extends to past postings ("was an officer or employee"). In addition, the use of the expression "including" in the introductory portion of para. 3(j) is a clear expression of Parliament's intention that the introductory phrase keep its wide and general meaning by providing only non-exhaustive examples. The purpose of para. 3(j) is to ensure that the state and its agents are held accountable to the general public. Thus, the fact that a public servant has been promoted or has retired should not affect the extent to which she or he is held accountable for past conduct. Finally, the use of the word "position" in the singular in para. 3(j) should be read as applicable to multiple positions. Information that was available at the time the individual held a certain position or exercised certain functions remains available subsequent to that individual's promotion or retirement.
The Court of Appeal's approach that a request for access should not constitute a "fishing expedition" about all the positions held by an individual fails to recognize that it is the nature of the information that is relevant-not the purpose or nature of the request. The right of access in subs. 4(1) ATIA is not qualified. The Act does not confer on heads of government institutions the power to take into account the identity of the requester nor the purpose of his/her request.
An interpretation of para. 3(j) that includes past positions without regard to the formulation of the request does not empty the definition of "employment history". First, para. 3(b) has a wider scope than para. 3(j), as it applies to every identifiable individual and not just individuals who are or were officers or employees of a government institution. Second, only information that relates to the position or functions of the federal employee or falling within one of the examples given will be excluded from the definition of "personal information". Thus, a considerable amount of information that qualifies as "employment history" remains inaccessible, such as the evaluations and performance reviews of a federal employee.
Applicable test for para. 3(j) PA
The Court explained the test set out by it in Dagg v. Canada (Minister of
Finance), [1997] 2 S.C.R. 403. First, it specified that Dagg does not
stand for the proposition that objective or factual information that relates to
the position or functions of the employee is to be provided to the public while
subjective or evaluative information is to be protected under the PA. Given
that "personal information" is defined as information "about an
identifiable individual" and given that para. 3(j) is an exception to the
manner in which "personal information" is treated, para. 3(j) must
contemplate information about an individual. Attempting to distinguish between
"information about the person" and "information about the position
or functions" is therefore artificial and unhelpful. Rather, the majority in Dagg
was of the view that the information at issue therein was to be disclosed
because it regarded it as "information 'that relates to' the position or
functions of the individual, and thus falls under the opening words of s.
3(j)" (Dagg, para. 8).
The Court held that (1) the list of historical postings of the RCMP members, their status and date; (2) the list of ranks, and the date the members achieved those ranks; (3) their years of service and (4) their anniversary date of service were all elements that related to the general characteristics associated with the position or functions of an RCMP member and, as such, fell within para. 3(j). Put another way, these aspects of employment shed light on the general attributes of the position and functions of an RCMP member. The information did not reveal anything about the members' competence or divulge any personal opinion given outside the course of employment.
The High Rise Group Inc. v. Minister of Public Works
and Government Services Canada
Indexed as: High Rise Group Inc. v. Canada
(Minister of Public Works and Government Services)
|
File No.: |
T-1409-01 |
|
References: |
2003 FCT 430; [2003] F.C.J. No. 602 (QL) (F.C.T.D.) |
|
Date of decision: |
April 11, 2003 |
|
Before: |
Campbell J. |
|
Section(s) of ATIA/PA: |
S. 20(1)(b), (c), (d) Access to Information Act (ATIA) |
|
|
|
Abstract
- S. 44 application to have bid evaluation information exempt from release
- Raw data supplied by third party and bid evaluations prepared thereon one and same record
- Reasonable expectation of confidentiality
Issues
Do evaluations of bids prepared by PWGSC contain information supplied to the government institution by the third party?
If the information was supplied to the government institution, does it otherwise meet the test for exemption under para. 20(1)(b)?
Is the information contained in the evaluation reports exempt from release pursuant to paras. 20(1)(c) and (d)?
Facts
PWGSC had issued a request for proposals for bids to provide leased accommodation for various federal departments. The applicant was the successful bidder. An Access to Information Act request was subsequently made for "the initial bidding documents showing the government's requirements for the building, a summary of the bids, and the department's bid evaluation showing the scores in each evaluation category for each bid". After consulting with the applicant, PWGSC determined that the information would not be exempt from release. The applicant has applied for a s. 44 judicial review of this decision .
Decision
The application for judicial review was allowed.
Reasons
Issue 1
The Court relied on the expert testimony filed on behalf of the applicant that,
although the actual amounts provided by the applicant in its proposal could not be
calculated with absolute certainty, the amounts could be calculated "within a
fairly narrow range" from the information subject to being released. Based on
this evidence, the Court found that the raw data supplied by the applicant in its
proposal and the evaluation reports produced thereon by PWGSC constituted one and
the same record.
Issue 2
The parties agreed that the information was financial information and the
Court held that there was no doubt that the applicant treated the information
as confidential. The only remaining issue was whether the information was
"confidential information". Using the test laid out in Air Atonabee
v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) at
198, the Court concluded:
- The applicant's evidence satisfied the part of the test that required that the information not be available from other sources;
- The applicant had a reasonable expectation that the information it communicated to the government institution would be kept confidential. In this regard, the Court relied on a provision in the Request for Proposal that listed certain types of information that would not be kept confidential. Because the information at issue was not specifically listed in this clause, the Court found that the clause created a reasonable expectation that the information at issue would be kept confidential. Further, the Court relied on an internal PWGSC email indicating an employee's belief in the same reasonable expectation of confidence;
- The relationship between the applicant and the government institution was one that would be fostered for the public benefit by protecting the communication as a confidential communication. In coming to this conclusion, the Court distinguished Strayer J.'s comments in Société Gamma v. Canada (Secretary of State) (1994), 56 C.P.R. (3d) 58 (F.C.T.D.) at 64 about how a would-be contractor should not expect to have the terms of his contract, along with the capacities his firm brings to the task, fully insulated from the disclosure obligations of the government as part of the government's regime of accountability. The fact that public money was going to be given to the applicant was an important factor but weight had to be given to the particular circumstances of this case. In this case, keeping the communication confidential was held to be in the public interest in order to ensure the integrity of the bidding process in the complicated lease and option to buy process at issue.
Issue 3
The applicant's evidence with respect to the applicability of paras. 20(1)(c) and
(d) was held to be mere speculation. As such, the applicant was not able to meet
its onus.
Comments
The Attorney General of Canada has appealed this decision.
Access to Information and Privacy Coordinators
Agriculture and Agri-Food Canada
Danielle Jacques
Room 255, Sir John Carling Building
930 Carling Avenue
Ottawa ON K1A 0C5
Atlantic Canada Opportunities Agency
Claudia Gaudet
P.O. Box 6051
3rd Floor Blue Cross Centre
644 Main Street
Moncton NB E1C 9J8
Atlantic Pilotage Authority Canada
Bonnie Jollymore
Cogswell Tower, Suite 910
2000 Barrington Street
Halifax NS B3J 3K1
Bank of Canada
Colleen Leighton
4th Floor, West Tower
234 Wellington Street
Ottawa ON K1A 0G9
Belledune Port Authority
Luc Forcier
112 Shannon Drive
Belledune NB E8G 2W2
Blue Water Bridge Authority
Mary Teft
1 Bridge Street
Point Edward ON N7V 4J5
British Columbia Treaty Commission
Chief Commissioner
Suite 203
1155 West Pender Street
Vancouver BC V6E 2P4
Business Development Bank of Canada
Robert D. Annett
Suite 400
5 Place Ville-Marie
Montreal QC H3B 5E7
Canada Council for the Arts
Irène Boilard
P.O. Box 1047
350 Albert Street, 9th Floor
Ottawa ON K1P 5V8
Canada Customs and Revenue Agency
Peter Hull
11th Floor Albion Tower
25 Nicholas Street
Ottawa ON K1A 0L5
Canada Deposit Insurance Corporation
Claudia Morrow
50 O'Connor Street, 17th Floor
Ottawa ON K1P 5W5
Canada Economic Development for Quebec Regions
Andrée Narbonne
P.O. Box 247
800 Victoria Square, Suite 3800
Montreal QC H4Z 1E8
Canada Industrial Relations Board
Christine Brûlé-Charron
4th Floor West
240 Sparks Street
Ottawa ON K1A 0X8
Canada Lands Company Limited
Fiorina Guido
Suite 1500
200 King Street West
Toronto ON M5H 3T4
Canada Mortgage and Housing Corporation
D. V. Tyler
700 Montreal Road
Ottawa ON K1A 0P7
Canada-Newfoundland Offshore Petroleum Board
Jim Doyle
5th Floor TD Place
140 Water Street
St. John's NL A1C 6H6
Canada-Nova Scotia Offshore Petroleum Board
Michael S. McPhee
6th Floor TD Centre
1791 Barrington Street
Halifax NS B3J 3K9
Canada Post Corporation
Richard A. Sharp
Suite N0643
2701 Riverside Drive
Ottawa ON K1A 0B1
Canada Science and Technology Museum Corporation
Ian MacLeod
P.O. Box 9724 Station T
2380 Lancaster Road
Ottawa ON K1G 5A3
Canadian Air Transport Security Authority
Renée Fairweather
99 Bank Street, 13th floor
Ottawa ON K1P 6B9
Canadian Artists and Producers Professional Relations Tribunal
Josée Dubois
1st Floor West
240 Sparks Street
Ottawa ON K1A 1A1
Canadian Centre for Management Development
Lisa Robinson
373 Sussex Drive
Ottawa ON K1N 6Z2
Canadian Centre for Occupational Health and Safety
Bonnie Easterbrook
250 Main Street East
Hamilton ON L8N 1H6
Canadian Commercial Corporation
Sharon Fleming
50 O'Connor Street, Suite 1100
Ottawa ON K1A 0S6
Canadian Cultural Property Export Review Board
Catherine Jensen
15 Eddy Street, 3rd Floor
Gatineau QC K1A 0M5
Canadian Dairy Commission
Chantal Paul
Building 55 NCC Driveway
Central Experimental Farm
960 Carling Avenue
Ottawa ON K1A 0Z2
Canadian Environmental Assessment Agency
Ann Amyot
Room 905
200 Sacré-Coeur Boulevard
Gatineau QC K1A 0H3
Canadian Firearms Centre
James Deacon
50 O'Connor Street, 10th Floor
Ottawa, ON K1A 1M6
Canadian Food Inspection Agency
Debbie Taylor
Room 2323E
59 Camelot Drive
Nepean ON K1A 0Y9
Canadian Forces Grievance Board
Martine Pelletier
60 Queen Street, 8th Floor
Ottawa ON K1P 5Y7
Canadian Grain Commission
Danielle Jacques
Sir John Carling Building, Room 255
930 Carling Avenue
Ottawa ON K1A 0C5
Canadian Heritage
E.W. Aumand
25 Eddy Street, 3rd Floor
Gatineau QC K1A 0M5
Canadian Human Rights Commission
Lucie Veillette
8th Floor, Canada Place
344 Slater Street
Ottawa ON K1A 1E1
Canadian Human Rights Tribunal
Greg Miller
900–473 Albert Street
Ottawa ON K1A 1J4
Canadian Institutes of Health Research
Guy D'Aloisio
410 Laurier Avenue West, 9th Floor
Address Locator 4209A
Ottawa ON K1A 0W9
Canadian International Development Agency
Andrée Potvin
12th Floor, Place du Centre
200 Promenade du Portage
Gatineau QC K1A 0G4
Canadian International Trade Tribunal
Susanne Grimes
333 Laurier Avenue West
Ottawa ON K1A 0G7
Canadian Museum of Civilization Corporation
Mark O'Neill
100 Laurier Street
Gatineau QC J8X 4H2
Canadian Museum of Nature
Greg Smith
P.O. Box 3443 Station D
Ottawa ON K1P 6P4
Canadian Nuclear Safety Commission
Philip Dubuc
P.O. Box 1046 Station B
280 Slater Street
Ottawa ON K1P 5S9
Canadian Polar Commission
John Bennett
Constitution Square, Suite 1710
360 Albert Street
Ottawa ON K1R 7X7
Canadian Radio-television and Telecommunications Commission
Sylvie Locas
Les Terrasses de la Chaudiere
1 Promenade du Portage, 5th Floor
Gatineau QC K1A 0N2
Canadian Security Intelligence Service
Laurent Duguay
P.O. Box 9732 Station T
Ottawa ON K1G 4G4
Canadian Space Agency
Danielle Bourgie
6767, route de l' Aéroport
Saint-Hubert QC J3Y 8Y9
Canadian Tourism Commission
Paula Brennan
55 Metcalfe Street, Suite 600
Ottawa ON K1P 6L5
Canadian Transportation Agency
John Parkman
Jules Léger Building
15 Eddy Street
Gatineau QC K1A 0N9
Canadian Wheat Board
Deborah Harri
423 Main Street
P.O. Box 816, Station Main
Winnipeg MB R3C 2P5
Citizenship and Immigration Canada
Diane Burrows
Narono Building
360 Laurier Avenue West, 10th Floor
Ottawa ON K1A 1L1
Commission for Public Complaints Against the Royal Canadian Mounted Police
Kay R. Baxter
60 Queen Street, 3rd Floor
P.O. Box 3423, Station D
Ottawa ON K1P 6L4
Communication Canada
Joan Mann
350 Albert Street, 5th Floor
Ottawa ON K1A 1M4
Copyright Board Canada
Ivy Lai
56 Sparks Street, Suite 800
Ottawa ON K1A 0C9
Correctional Service of Canada
Mike Johnston
Sir Wilfrid Laurier Building
340 Laurier Avenue West
Ottawa ON K1A 0P9
Defence Construction Canada
Danielle Richer
17th Floor Tower B Place de Ville
112 Kent Street
Ottawa ON K1A 0K3
Department of Finance Canada
Cynthia Richardson
21st Floor East Tower
L'Esplanade Laurier
140 O'Connor Street
Ottawa ON K1A 0G5
Department of Foreign Affairs and International Trade
Jocelyne Sabourin
Lester B. Pearson Building
125 Sussex Drive
Ottawa ON K1A 0G2
Department of Justice Canada
Kerri Clark
1st Floor
284 Wellington Street
Ottawa ON K1A 0H8
Environment Canada
Helen Ryan
Room 2701
10 Wellington Street
Gatineau QC K1A 0H3
Export Development Canada
Serge Picard
7th Floor
151 O'Connor Street
Ottawa ON K1A 1K3
Farm Credit Canada
Veronica Bosche
P.O. Box 4320
1800 Hamilton Street
Regina SK S4P 4L3
Federal Bridge Corporation Limited
Norman B. Willans
55 Metcalfe Street, Suite 1210
Ottawa ON K1P 6L5
Financial Consumer Agency of Canada
Jean-Pierre Giroux
Enterprise Building, 6th Floor
427 Laurier Avenue West
Ottawa ON K1R 1B9
Financial Transaction and Reports Analysis Centre of Canada
Joanna Leslie
234 Laurier Avenue West
Ottawa ON K1P 1H7
Fisheries and Oceans Canada
Gary Lacey
8th Floor
200 Kent Street
Ottawa ON K1A 0E6
Fraser River Port Authority
Sarb Dhut
Suite 500
713 Columbia Street
New Westminster BC V3M 1B2
Freshwater Fish Marketing Corporation
Bruce Syme
1199 Plessis Road
Winnipeg MB R2C 3L4
Great Lakes Pilotage Authority Canada
Christine Doherty
202 Pitt Street
P.O. Box 95
Cornwall ON K6H 5R9
Gwich'in Land and Water Board
Robert Alexie
P.O. Box 2018
Inuvik NT X0E 0T0
Gwich'in Land Use Planning Board
Susan McKenzie
P.O. Box 2478
Inuvik NT X0E OTO
Halifax Port Authority
Joan Macleod
Ocean Terminals
1215 Marginal Road
P.O. Box 336
Halifax NS B3J 2P6
Hamilton Port Authority
Access to Information Coordinator
605 James Street North
Hamilton ON L8L 1K1
Hazardous Materials Information Review Commission
Josée Potvin
427 Laurier Avenue West, Room 717
Ottawa ON K1A 1M3
Health Canada
Gisèle Albrough
A.L. 1912C1
12th Floor–Jeanne Mance Building
Tunney's Pasture
Ottawa ON K1A 0K9
Historic Sites and Monuments Board of Canada
Michel Audy
5th Floor, Jules Léger Building
Les Terrasses de la Chaudière
25 Eddy Street
Gatineau QC K1A 0M5
Human Resources Development Canada
Jean Dupont
Phase IV, 1st Floor
140 Promenade du Portage
Gatineau QC K1A 0J9
Immigration and Refugee Board
Sergio Poggione
14th Floor
344 Slater Street
Ottawa ON K1A 0K1
Indian and Northern Affairs Canada
Marie Dauray Chartrand
Les Terrasses de la Chaudière, Room 517
10 Wellington Street
Gatineau QC K1A 0H4
Indian Residential Schools Resolution Canada
Margaret Kirkland
Room 341
90 Sparks Street
Ottawa ON K1A 0H4
Industry Canada
Kimberly Eadie
11th Floor
255 Albert Street
Ottawa ON K1A 0H5
Infrastructure Canada
Carole Larocque
400 Cooper Street, 7th Floor
Ottawa ON K1A 0R5
International Centre for Human Rights and
Democratic Development
Anne-Marie Lavoie
Suite 1100
1001 de Maisonneuve East
Montreal QC H2L 4P9
International Development Research Centre
Diane Ryerson
P.O. Box 8500
250 Albert Street
Ottawa ON K1G 3H9
Jacques Cartier and Champlain Bridges Incorporated, The
Sylvie Lefebvre
Suite 600, West Tower
1111 St-Charles Street West
Longueuil QC J4K 5G4
Laurentian Pilotage Authority Canada
Nicole Sabourin
715 Victoria Square, 6th Floor
Montreal QC H2Y 2H7
Law Commission of Canada
Jocelyne Geoffroy
Trebla Building, 11th Floor
473 Albert Street
Ottawa ON K1A 0H8
Mackenzie Valley Environmental Impact Review Board
Roland Semjanovs
P.O. Box 938
Yellowknife NT X1A 2N7
Mackenzie Valley Land and Water Board
Wanda Anderson
P.O. Box 2130
Yellowknife NT X1A 2P6
Military Police Complaints Commission
Muguette Vernier
10th Floor
270 Albert Street
Ottawa ON K1P 5G8
Montreal Port Authority
Sylvie Vachon
Wing No. 1,
Port of Montreal Building
Cité du Havre
Montreal QC H3C 3R5
Nanaimo Port Authority
Bill Mills
104 Front Street
P.O. Box 131
Nanaimo BC V9R 5K4
National Archives of Canada
Julie Attallah
Room 350
395 Wellington Street
Ottawa ON K1A 0N3
National Arts Centre
Debbie Collins
P.O. Box 1534, Station B
Ottawa ON K1P 5W1
National Battlefields Commission
Michel Leullier
390 de Bernières Avenue
Quebec QC G1R 2L7
National Capital Commission
Gilles Gaignery
202–40 Elgin Street
Ottawa ON K1P 1C7
National Defence
Judith Mooney
8th Floor North Tower
101 Colonel By Drive
Ottawa ON K1A 0K2
National Energy Board
Michel Mantha
444–7th Avenue S.W.
Calgary AB T2P 0X8
National Farm Products Council
Danielle Jacques
930 Carling Avenue, Room 255
Ottawa ON K1A 0C5
National Film Board of Canada
Geneviève Cousineau
3155 Côte de Liesse Road
St-Laurent QC H4N 2N4
National Gallery of Canada
Frances J. Cameron
380 Sussex Drive
Ottawa ON K1N 9N4
National Library of Canada
Fay Hjartarson
395 Wellington Street
Ottawa ON K1A 0N4
National Parole Board
John Vandoremalen
410 Laurier Avenue West, 7th Floor
Ottawa ON K1A 0R1
National Research Council Canada
Huguette Brunet
Building M-58, Room W314
Montreal Road Campus
Ottawa ON K1A 0R6
National Round Table on the Environment and the Economy
Angela Kuhn
344 Slater Street, Suite 200
Ottawa ON K1R 7Y3
Natural Resources Canada
Jean Boulais
580 Booth Street, 11th Floor
Ottawa ON K1A 0E4
Natural Sciences and Engineering Research Council of Canada
Victor Wallwork
350 Albert Street, 13th Floor
Ottawa ON K1A 1H5
Northern Pipeline Agency Canada
Kris Panday
Lester B. Pearson Building
125 Sussex Drive
Ottawa ON K1A 0G2
North Fraser Port Authority
Krita Henderson
7911 Grauer Road
Richmond BC V7B 1N4
Northwest Territories Water Board
Vicki Losier
Goga Cho Building, 2nd Floor
P.O. Box 1500
Yellowknife NT X1A 2R3
Nunavut Water Board
Marie Dauray Chartrand
Les Terrasses de la Chaudière
10 Wellington Street, Room 517
Gatineau QC K1A 0H4
Office of the Auditor General of Canada
Beth Stewart
240 Sparks Street
Ottawa ON K1A 0G6
Office of the Chief Electoral Officer
Diane Davidson
257 Slater Street, Room 9-106
Ottawa ON K1A 0M6
Office of the Commissioner of Official Languages
Louise Dubé
3rd Floor
344 Slater Street
Ottawa ON K1A 0T8
Office of the Correctional Investigator
Todd Sloan
275 Slater Street, Room 402
Ottawa ON K1P 5H9
Office of the Inspector General of the Canadian Security Intelligence
Service
Annie Bédard
340 Laurier Avenue West, 11th Floor
Ottawa ON K1A 0P8
Office of the Ombudsman for National Defence and Canadian Forces
Mary McFadyen
12th Floor
100 Metcalfe Street
Ottawa ON K1P 5M1
Office of the Superintendent of Financial Institutions Canada
Luc Morin
15th Floor
255 Albert Street
Ottawa ON K1A 0H2
Pacific Pilotage Authority Canada
Bruce Chadwick
1000–1130 West Pender Street
Vancouver BC V6E 4A4
Parks Canada Agency
E.W. Aumand
25 Eddy Street, 3rd Floor
Station 57
Gatineau QC K1A 0M5
Patented Medicines Prices Review Board
Sylvie Dupont
Standard Life Centre
333 Laurier Avenue West, Suite 1400
P.O. Box L40
Ottawa ON K1P 1C1
Pensions Appeal Board
Mina McNamee
P.O. Box 8567, Station T
Ottawa ON K1G 3H9
Port Alberni Port Authority
Linda Kelsall
2750 Harbour Road
Port Alberni BC V9Y 7X2
Prince Rupert Port Authority
Joe Rektor
200–215 Cow Bay Road
Prince Rupert BC V8J 1A2
Privy Council Office
Ciuineas Boyle
Room 400 Blackburn Building
85 Sparks Street
Ottawa ON K1A 0A3
Public Service Commission of Canada
Bernard Miquelon
L'Esplanade Laurier, West Tower
300 Laurier Avenue West,
Room 1976
Ottawa ON K1A 0M7
Public Service Integrity Office
Pierre Martel
Suite 605
60 Queen Street
Ottawa ON K1P 5Y7
Public Service Staff Relations Board
Etienne Perras
6th Floor West Tower
C.D. Howe Building
P.O. Box 1525 Station B
240 Sparks Street
Ottawa ON K1P 5V2
Public Works and Government Services Canada
Anita Lloyd
Room 5C1 Phase III
Place du Portage
11 Laurier Street
Gatineau QC K1A 0S5
Quebec Port Authority
Pascal Raby
P.O. 2268
150 Dalhousie Street
Quebec QC G1K 7P7
Royal Canadian Mint
Marguerite Nadeau
320 Sussex Drive
Ottawa ON K1A 0G8
Royal Canadian Mounted Police
Superintendent Christian Picard
1200 Vanier Parkway
Ottawa ON K1A 0R2
Royal Canadian Mounted Police External Review Committee
Norman Sabourin
P.O. Box 1159, Station B
Ottawa ON K1P 5R2
Saguenay Port Authority
Pierre Paquin
6600 Terminal Road
Ville de La Baie QC G7B 3N9
Sahtu Land and Water Board
Larry Wallace
P.O. Box 1
Fort Good Hope NT X0E 0H0
Sahtu Land Use Planning Board
Ray Taniton
P.O. Box 235
Fort Good Hope NT X0E 0H0
Saint John Port Authority
Pam Flemming
5th Floor
133 Prince William Street
Saint John NB E2L 2B5
St. John's Port Authority
Sean Hanrahan
P.O. Box 6178
1 Water Street
St. John's NL A1C 5X8
Seaway International Bridge Corporation, Ltd
Norman B. Willans
Suite 1210
55 Metcalfe Street
Ottawa ON K1P 6L5
Security Intelligence Review Committee
Marian McGrath
4th Floor, Jackson Building
P.O. Box 2430 Station D
122 Bank Street
Ottawa ON K1P 5N6
Sept-Îles Port Authority
Diane Morin
1 Quai Mgr-Blanche
Sept-Îles QC G4R 5P3
Social Science and Humanities Research Council of Canada
Ruth Marfurt
Room 1192
350 Albert Street
Ottawa ON K1P 6G4
Solicitor General Canada
Duncan Roberts
Sir Wilfrid Laurier Building
340 Laurier Avenue West
Ottawa ON K1A 0P8
Standards Council of Canada
Pilar Castro
Suite 200
270 Albert Street
Ottawa ON K1P 6N7
Statistics Canada
Pamela White
R.H. Coats Building
25th Floor, Section B
Ottawa ON K1A 0T6
Status of Women Canada
Hélène Archambault
10th Floor
123 Slater Street
Ottawa ON K1P 1H9
Telefilm Canada
Stéphane Odesse
360 Saint-Jacques Street, Suite 700
Montreal QC H2Y 4A9
Thunder Bay Port Authority
Tim V. Heney
100 Main Street
Thunder Bay ON P7B 6R9
Toronto Port Authority
Lisa Raitt
60 Harbour Street
Toronto ON M5J 1B7
Transport Canada
Kathy Wesley
26th Floor, Tower C, Place de Ville
330 Sparks Street
Ottawa ON K1A 0N5
Transportation Safety Board of Canada
Tonette Allen
4th Floor
200 Promenade du Portage
Gatineau QC K1A 1K8
Treasury Board of Canada Secretariat
Denise Brennan
8th Floor, East Tower,
L'Esplanade Laurier
140 O'Connor Street
Ottawa ON K1A 0R5
Trois-Rivières Port Authority
Roger Marceau
Suite 300
1545 du Fleuve Street
Trois-Rivières QC G9A 5K2
Vancouver Port Authority
Wendy Petruk
1900 Granville Square
200 Granville Street
Vancouver BC V6C 2P9
Veterans Affairs Canada
Barry Johnston
P.O. Box 7700
Charlottetown PE C1A 8M9
Western Economic Diversification Canada
Tim Earle
Suite 1500, Canada Place
9700 Jasper Avenue
Edmonton AB T5J 4H7
Windsor Port Authority
David Cree
Suite 502
251 Goyeau Street
Windsor ON N9A 6V2
Yukon Surface Rights Board
Ian C. Pumphrey
P.O. Box 31201
Whitehorse YT Y1A 5P7
1. Given its finding with respect to the Privacy Act issue, it was not necessary for the Court to make a finding with respect to the second issue raised by the applicant (i.e. whether the Board's decision was made in accordance with the principles of natural justice and procedural fairness).
2. Rule 28(1) provides that "Every application that is not provided for in these Rules shall be made by a party to the Refugee Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner." Rule 28(9) states that "The Refugee Division, on being satisfied that no injustice is likely to be caused, may dispose of a motion without a hearing.".
3. The relevant portions of the definition of "personal information" found in s. 3 PA are the following:
"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing, [...]
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations, [...]
(g) the views or opinions of another individual about the individual, [...]
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, [...]
4. Although the question of whether the software was under the control of CSC was not an issue before the FCA, the Court stated that not only was software not a record, but it was not a record "under the control of a government institution" as it was under the control of the external developer. As mere licensees, the appellants had not authority to copy or otherwise use the software outside of their licensing agreements (para. 63).
5. That decision was appealed to the Supreme Court of Canada (2002 SCC 75) but on other issues.
6. The relevant portions of s. 3 of the Privacy Act are the following:
"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(b) information relating to the education or the medical, criminal or employment history of the individual [...];
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include:
(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,