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Info Source Bulletin Number 28
Robert J. Richards and Sandra L. Richards v. Minister of National Revenue
Indexed as: Richards v. Canada (Minister of National Revenue)
| File No.: | T-636-02 |
| Reference: | 2003 FC 1450 |
| Date of decision: | December 12, 2003 |
| Before: | Lemieux J |
| Sections of ATIA / PA: | Ss. 6, 12 and 41 Privacy Act (PA) |
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Abstract
- S. 41 PA review is a de novo
- Jurisdiction of Court to entertain s. 41 review when records do not exist or are missing
- Insufficient evidence to prove existence of documents or personal information on missing documents
- No further search ordered
Issues
- Were the applicants denied access to their personal information, giving rise to a s. 41 PA review of the decision of the MNR because certain documents which the Minister said did not exist or were missing were not disclosed to the applicants?
- Is a s. 41 review in the nature of a de novo review?
- Is a further search of records justified?
Facts
Mr. and Mrs. Richards ("the applicants") sought access to their personal information under the control of the Minister of National Revenue ("MNR"). The Minister and his officials granted the applicants access to thousands of pages of documents containing the applicants' personal information. The MNR alleges that certain requested documents were not disclosed on the basis that they either did not exist because they had never been created (two documents), or were missing through no fault of the Minister or his officials (two documents). In the case of the last two documents, the bottom of a T20ST Reconciliation form had been torn away under unknown circumstances, and information on a Post-it note affixed to a T2020 document and covered by a second Post-it note was lost and only a photocopy of the T2020 existed.
The applicants complained to the Privacy Commissioner. In his findings on November 15, 2001, the Privacy Commissioner found that access had in some cases been denied (other than those mentioned above) but as access had by the time of his report been granted, no further action was warranted. With respect to the T20ST Reconciliation form, the Commissioner found that there was no evidence on which to conclude that the missing portion contained any personal information about the applicants.
Decision
The application was dismissed.
Reasons
A s. 41 review is a de novo review, which requires the Court to determine, on a balance of probabilities, based on the evidence before it, whether the applicants had been refused access to personal information.
With respect to the documents that the Minister claimed did not exist, the Court concluded that in both cases there was uncontradicted evidence that they did not exist. The Court did not order a further search of records, as it was satisfied with the Commissioner's finding, made after a thorough investigation, that there was no evidence that the documents existed.
With respect to the T20ST Reconciliation form, the Court concluded that the evidence did not permit any conclusion as to what caused the missing portion to be absent, the same conclusion at which the Commissioner arrived. The Court found that, on the balance of probabilities, the missing part of the form did not contain any personal information about Mr. Richards, particularly after examining a blank T20ST form as well as the T20ST form prepared when Mrs. Richards' taxes were reviewed.
Finally, the Court held that there was insufficient evidence upon which to conclude that the missing Post-it notes contained personal information about Mrs. Richards, and that to conclude otherwise would be pure speculation on the Court's part.
