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Info Source Bulletin Number 28

Attorney General of Canada and H.J. Heinz Co. of Canada Ltd. and the Information Commissioner of Canada

Indexed as: Canada (Attorney General) v. H.J. Heinz Co. of Canada Ltd.

File No.:	A-161-03
Reference:	2004 FCA 171 April 30, 2004
Date of decision:	Nadon, Desjardins, Pelletier JJ.A.
Before:	Mosley J.
Sections of ATIA / PA:	*Ss. 19, 20(1), 24, 27, 28, 44, 49, 51 Access to Information Act* (ATIA)**

Abstract

Siemens stands for proposition that third party applications under s. 44 ATIA are not restricted to subs. 20(1) ATIA
Siemens cannot be overturned by Court of Appeal as it was not "manifestly wrong"

Issues

Does the decision of the Federal Court of Appeal in Siemens decide the substantive issue in this case?
Should the decision in Siemens be overturned?

Facts

The Canadian Food Inspection Agency ("CFIA") received a request for access under the Access to Information Act (ATIA) to information relating to H.J. Heinz ("the respondent"). CFIA asked the respondent pursuant to s. 27 ATIA why the requested records should not be disclosed. CFIA reviewed the respondent's reasons for opposing disclosure and determined that it would go ahead with disclosure subject to certain redactions. CFIA so informed the respondent of its decision to proceed, in response to which the respondent commenced judicial review proceedings pursuant to s. 44 ATIA.

In its application for judicial review, the respondent raised a number of issues concerning the application of subs. 20(1) ATIA. Later, in its written and oral arguments, the respondent raised the application of s. 19 ATIA.

The application judge (2003 FCT 250) concluded that certain records or parts thereof which fell within subs. 20(1) ATIA should be severed; this is not appealed here. The applications judge also concluded that the respondent could invoke the exemption set out in s. 19 ATIA and consequently ordered the severance of certain passages in the records which fell within s. 19. In reaching this conclusion, the application judge relied on Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4^th) 575, 2002 FCA 414 for the proposition that the respondent could, on a s. 44 application, invoke exemptions other than those set out in subs. 20(1) ATIA.

Heinz argued that Siemens was determinative of the matter; the Attorney General argued that the Court should overturn the Siemens decision as the Court in that case did not give full consideration to the arguments concerning the appropriate interpretation of the notice scheme set out in the ATIA.

Decision

The application was dismissed with costs.

Reasons

Issue 1

The Court agreed with the respondent that it was not possible to distinguish Siemens from the present case on any ground, including the one that the exemption at issue in Siemens was not s. 19, but s. 24. Both sections provide that the head of a government institution must refuse to disclose records which fall within the wording of these sections; in the case of s. 19, the head of the institution is not to disclose records that contain personal information as defined in s. 3 of the Privacy Act and, in the case of s. 24, the head of the institution is not to disclose records that contain information, the disclosure of which is restricted by or pursuant to any provision set out in Schedule II. Consequently, in Siemens, the Court of Appeal decided that a party could, on a s. 44 application, seek to prevent the disclosure of records on the basis of exemptions other than those contained in subs. 20(1) ATIA. This issue before this Court was thus clearly decided by the Court of Appeal in Siemens.

Issue 2

In a number of recent decisions, the Court of Appeal has clearly stated that it will not overrule prior decisions of that Court unless the decision is manifestly wrong, i.e. that the Court overlooked a relevant statutory provision or a case that ought to have been followed. Although the Court found very appealing the appellant's forceful arguments that, in a s. 44 application, a third party's objection to disclosure of records is limited to the records found in subs. 20(1) of the Act, the Court was of the view that it could not overturn the decision rendered in Siemens as it was not "manifestly wrong". The Attorney General did not make any submissions to the contrary.

Comments

The Attorney General of Canada was granted leave to appeal before the Supreme Court of Canada.