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Info Source Bulletin Number 30
Samir Elomari v. President of the Canadian Space Agency
Indexed as: Samir Elomari v. President of the Canadian Space Agency
| File No.: | T-1448-05 |
| Reference: | 2006 CF 863 |
| Date of decision: | July 11, 2006 |
| Before: | Tremblay-Lamer J. |
| Sections of ATIA / PA: | Ss. 3, 12, 21, 26, 27 and 41 Privacy Act (PA) |
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Abstract
- Judicial review under s.41 PA: Appropriate standard of review for sections 3 and 12 of the PA and appropriate standard of review for sections 26 an 27 of the PA.
- No evidence that the respondent acted in bad faith when exercising its discretion.
Issues
(1) What is the appropriate standard of review when determining personal information within the meaning of sections 3 and 12 of the pa? Which is appropriate when determining whether a document is exempt under sections 26 and 27 of the PA?
(2) Is the respondent's decision to refuse to disclose the information in question to the applicant under sections 12, 26 and 27 of the PA valid in this case?
Facts
The applicant filed a notice of judicial review under the provisions of section 41 of the PA for the purpose of challenging the President of the Canadian Space Agency's decision to deny him access to information under sections 12, 21, 26, and 27 of the PA. The applicant did not challenge the exemption under section 21 and the respondent admitted that section 27 does not apply to a paragraph in one of the protected documents.
These are the arguments raised by the applicant:
Further to a Superior Court of Québec decision allowing the applicant's action against the Canadian Space Agency in a case of illegal appropriation of an invention, it would be contrary to public order if the Canadian Space Agency could benefit from the exemptions granted under the PA.
Moreover, the applicant feels that the solicitor-client privilege under section 27 cannot be relied on to justify refusing to disclose documents when communications are made in order to facilitate the commission of a crime or fraud.
Decision
The application for judicial review is dismissed except for one paragraph in one of the documents, which must be disclosed to the applicant.
Reasons
Issue 1
The appropriate standard of review for determining personal information within the meaning of sections 3 and 12 of the PA is the standard of correctness: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66.
The appropriate standard of review of a decision by a federal board or tribunal that a document is subject to an exception (26 or 27 of the PA) is the standard of correctness. If this decision is found to be valid, the discretional decision by the federal board or tribunal to refuse disclosing a document should be reviewed under the reasonableness Simpliciter standard: Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (trial court), aff'd (1993), 154 N.R. 319 (F.C.A.); Thurlow v. Canada (Solicitor General), 2003 FC 1414, [2003] F.C.J. No. 1802 (QL).
Issue 2
The court feels there is no doubt as to the validity of the respondent's finding that the information was not personal information under section 3.
The court confirms that nothing would allow it to conclude that the respondent acted in bad faith and it finds that the respondent appropriately exercised its discretionary power as set out under section 26 of the PA: Mislan v. Canada (Minister of Revenue), [1998] F.C.J. No. 704 (trial court) (QL); Keïta v. Canada (Minister of Citizenship and Immigration), 2004 FC 626, [2004] F.C.J. No. 782 (F.C.) (QL).
After reviewing the documents protected by the respondent under section 27 (solicitor-client privilege), the court is satisfied that they are covered by the exemption except for one paragraph in one document. moreover, the exercise of discretion by a federal board or tribunal to not disclose the documents is affirmed. there is not a single element of evidence that the discretionary power was exercised irregularly: Stevens v. Canada (Prime Minister), [1998] 4 f.c. 89 (c.a.); Gauthier v. Canada (Minister of Justice), 2004 fc 655, [2004] f.c.j. no. 794 (f.c.) (ql); Canada v. Solosky, [1980] 1 s.c.r. 821; Descôteaux et al v. Mierzwinski, [1982] 1 s.c.r. 860; r v. Campbell, [1999] 1 s.c.r. 565; Samson Indian Nation and Band v. Canada, [1995] 2 f.c. 762 (c.a.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 f.c. 268; Blank v. Canada (Minister of Justice), 2004 fca 287, [2005] 1 f.c.j. 403 (f.c.a.); Blank v. Canada (Minister of the Environment), 2001 fca 374, [2001] f.c.j. no. 1844 (c.a.) (ql).
