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Info Source Bulletin Number 30
Attorney General of Canada and H.J. Heinz Company of Canada Ltd. and Information Commissioner of Canada
Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)
| File No.: | SCC 30417 |
| Reference: | 2006 SCC 13 |
| Date of decision: | April 21, 2006 |
| Before: | Deschamps J. (Binnie, Fish and Abella JJ. concurring) (Majority) Bastarache J. (McLachlin C.J. and LeBel J. concurring) (Dissent) |
| Sections of ATIA / PA: | Ss. 2, 3, 19, 20(1), 27, 28, 29, 44, 51 Access to Information Act (ATIA); ss. 3, 8(1), 8(2), 8(5) Privacy Act (PA);s. 18.1 Federal Courts Act |
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Abstract
- Third party can raise s. 19 ATIA exemption on a s. 44 ATIAapplication
- S. 44 must be interpreted in light of both ATIA and Privacy Act
- In a situation involving personal information about an individual, the right to privacy is paramount over the right of access to information, except as prescribed by the legislation
Issues
Can a third party raise the s. 19 ATIA exemption on a s. 44 ATIA application?
Facts
In June 2000, the Canadian Food Inspection Agency ("CFIA") received a request under the ATIA for access to certain records pertaining to Heinz. As CFIA determined that some of the records contained third party information that could be exemptable under subs. 20(1) ATIA, notice was given to Heinz pursuant to ss. 27 and 28 ATIA seeking Heinz's representations as to why the documents should not be disclosed. After reviewing Heinz's submissions, CFIA decided to disclose the records, subject to certain redactions, and notified Heinz thereof. On September 27, 2000, Heinz filed a s. 44 ATIA application, arguing that the records in question should not be disclosed because they were caught by subs. 20(1) and subs. 19(1) ATIA. Heinz was raising s. 19 in order to protect the personal information of several of its employees.
The Attorney General argued before Layden-Stevenson J. ([2003] 4 F.C. 3) that Heinz was barred from raising any exemption other than subs. 20(1) on a s. 44 application. Layden-Stevenson J. rejected the Attorney General's argument. In doing so, she relied on Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services)[12] as authority for the proposition that if the s. 24 mandatory exemption is available to a third party, so too must be the mandatory exemption provided in s. 19 ATIA. To hold otherwise would, in her view, "yield an irrational and illogical result and one that is contrary to the principles of statutory interpretation". In the result, Layden-Stevenson J. ordered the severance of certain records containing personal information.
The Attorney General appealed to the Federal Court of Appeal ([2005] 1 F.C.R. 281 (C.A.)). Nadon J.A., writing for the Court, concluded that Siemens was indistinguishable from the case before the Court, and thus dismissed the appeal. The Attorney General then sought and obtained leave to appeal the matter to the Supreme Court of Canada.
Decision
The appeal was dismissed.
Reasons
The Supreme Court of Canada has stated on numerous occasions that the Privacy Act and the ATIA must be read together as a "seamless code": Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8, at para. 22. The right of access to government information, while an important principle of Canada's democratic system, cannot be read in isolation from an individual's right to privacy. By including a mandatory privacy exemption in the ATIA itself, Parliament ensured that both statutes recognize that the protection of the privacy of individuals is paramount over the right of access, except as prescribed by law. Where a third party becomes aware that a government institution intends to disclose a record containing personal information, nothing in the plain language of the ATIA, and in particular ss. 28, 44(1) and 51 thereof, prevents the third party from raising the privacy exemption set out in subs. 19(1) on a s. 44 application for judicial review. What matters is not how the reviewing court became aware of the government's wrongful decision to disclose personal information, but the court's ability to give meaning to the right to privacy. A reviewing court is in a position to prevent harm from being committed and the statutory scheme imposes no legal barrier to prevent the court from intervening. An interpretation of s. 44 that forces an individual to wait until the personal information is disclosed and the damage is done, or that imposes an onerous burden on the person seeking to avert the harm, fails to give actual content to the right to privacy and also fails to satisfy the clear legislative goals underlying the ATIA and thePrivacy Act.
In the view of the majority, neither Saint John Shipbuilding[13] nor Siemens provided the Court with specific reasoning on the proper scope of a s. 44 application. More importantly, the s. 19 exemption differs markedly in nature, purpose and application from the exemption provisions raised in the prior cases. Parliament's harmonized design of access to information and privacy legislation clearly indicates, as the Supreme Court's jurisprudence has confirmed, that the ATIA and the Privacy Act must be read together, with special emphasis given to the protection of personal information. The Court also rejected the conclusions of the Federal Court, Trial Division in SNC Lavalin Inc. v. Canada (Minister for International Cooperation), [2003] 4 F.C. 900, which had considered whether a third party could raise the s. 19 exemption on a s. 44 application.
Parliament has created a legislative scheme which, while intended to ensure access to information on the one hand and protect individual privacy on the other, consistently protects personal information. As a result of these tightly interlaced legislative histories, s. 44 cannot be interpreted simply with regard to the purpose of the ATIA, but must also be understood with reference to the purpose of the Privacy Act.
The intimate connection between the right of access to information and privacy rights does not mean that equal value should be accorded to all rights in all circumstances. The legislative scheme established by the ATIA and the Privacy Act clearly indicates that in a situation involving personal information about an individual, the right to privacy is paramount over the right of access to information, except as prescribed by the legislation. Both Acts contain statutory prohibitions against the disclosure of personal information, most significantly in s. 8 of the Privacy Act and s. 19 of the ATIA. Thus, while the right to privacy is the driving force behind the Privacy Act, it is also recognized and enforced by the ATIA.
In the specific circumstances of the case at bar, the Privacy Commissioner and the Information Commissioner are of little help because, with no power to make binding orders, they have no teeth. Where, as here, a party seeks to prevent the disclosure of information as opposed to requesting its release, the Commissioners' role is necessarily limited by an inability to issue injunctive relief or to prohibit a government institution from disclosing information. Section 44 is therefore the sole mechanism under either the ATIA or the Privacy Act by which a third party can draw the court's attention to an intended disclosure of personal information in violation of s. 19 of the ATIA, and by which it can seek an effective remedy on behalf of others whose privacy would be affected by the disclosure of documents for which the third party is responsible.
A review under s. 44 of the ATIA is triggered by a third party's right to notice where requested records may contain confidential business information. While the notice provisions relating to the disclosure of confidential business information necessarily limit the availability of a s. 44 review, the plain language of ss. 28, 44 and 51 of the ATIA does not explicitly restrict the scope of the right of review. Rather, the plain language of the statute, together with the legislative context and combined purposes of the ATIA and Privacy Act, provides ample foundation for the conclusion that the reviewing court has jurisdiction to protect personal information on a third party application for review.
A basic premise of the ATIA is that personal information will not be disclosed in violation of the mandatory prohibition set out in s. 19. The access to information and privacy scheme is founded on the assumption that government institutions will respect the mandatory prohibition on disclosing personal information and that no notice is therefore required for personal information relating to individuals. In the specific circumstances in which the ATIA does authorize the disclosure of personal information – where the information is already publicly available, where the individual to whom the information relates consents, or where there is an overriding public interest – a notice provision is either superfluous or has in fact been provided for in the legislative scheme (e.g. s. 8(5) of the Privacy Act). Given this underlying presumption that personal information will not be disclosed as well as the paramount importance of individual privacy, it would therefore be absurd not to allow third parties to use the mechanism provided for by the legislature to prevent a violation of the spirit and the letter of the ATIA and the Privacy Act. Allowing Heinz to raise the s. 19 exemption on a s. 44 review does not create a "second tier" of third parties, but allows the only third party who has access to s. 44 to use this remedy to prevent harm from occurring needlessly.
Having found that a third party can raise the s. 19 exemption on an application for review under s. 44, the Court concluded that Heinz need not seek review under s. 18.1 of the Federal Courts Act because s. 44 already provides an alternate remedy.
Reasons
The parties agreed that the applicable standard of review is that of correctness.
Under a strict reading of the PA and its s. 41, the Federal Court does not have the jurisdiction to review a decision such as the present one, where personal information has not been withheld, but instead disclosed without authorization.
Section 18.1 of the Federal Courts Act grants the Federal Court a broader jurisdiction to hear reviews of federal commission decision but its powers are not absolute. The powers of the Federal Court to remedy a situation are more or less limited to the powers conferred on the initial deciding body.
The Privacy Commissioner's remedial powers, as such, are restricted to making findings and recommendations which are non-binding on the RCMP. The Privacy Commissioner has no authority, implicit or otherwise, to act as an adjudicator by making binding determinations on the parties to a complaint, nor does the PA allow the Privacy Commissioner to award any such remedial relief. The PA remedies are found in ss. 35 and 37 and are both restricted to the issuance of non-binding findings and recommendations.
It is trite law that the jurisdiction of a statutory body (such as the Privacy Commissioner) is limited to what the legislator decided it should be. A proper reading of the PA and especially s. 35 make it clear that Parliament wanted the Privacy Commissioner to be limited to a power of recommendation and no more. The term "recommendation" should be given its ordinary meaning – the offering of advice that is not binding.
General principles of statutory interpretation suggest that a Court should not add powers to the jurisdiction of a statutory body when the legislative provisions creating this body are clear and not subject to interpretation. The Federal Court's jurisdiction to review decisions of the Privacy Commissioner is found in s. 41 of the PA (for those cases where access to personal information requested under s. 12 has been refused) and subs. 18.1(3) Federal Courts Act. In addition, the power of the Federal Court to grant a remedy in those situations is largely restricted to those which the Privacy Commissioner itself could order, i.e., the disclosure of non-disclosed documents (ss. 48-50 PA and subs. 18.1(4) Federal Courts Act). Here, no such information has remained undisclosed, and so this remedy would not be appropriate.
The words "to extend" in s. 2 of the PA cannot be interpreted as recognizing an implicit remedy of compensation given to the Privacy Commissioner. A reading of the PA makes it clear that Parliament intended for the Privacy Commissioner to be an ombudsperson, not an adjudicative body. Making recommendations and granting damages are two totally different functions. Although the 1987 Open and Shut Report[14] noted that no civil remedies are provided in the PA and recommended that such remedies be inserted, as of today no such amendments have been made. This is not to imply that civil remedies for breach of privacy can never exist, but that under the PA, as it is currently structured, no such remedies are available.
The only remedy available from the Privacy Commissioner is that outlined in subss. 35(1) and (2): providing to both the institution and the complainant the Commissioner's report outlining its findings and any recommendations, if appropriate, and receiving the appropriate notices where necessary. In the present case, this was done: both the RCMP and the applicant were advised that the RCMP's actions violated the PA. No recommendations were made, therefore the RCMP did not have to respond in kind. The Privacy Commissioner committed no error in not acting further on the applicant's complaint.
Comments
The Court noted the Privacy Commissioner's power to comment on the situation in an annual or special report to Parliament. It also noted the availability of s. 74 of the PA which only prohibits civil or criminal actions against a government institution for the wrongful disclosure of personal information where this disclosure is done in good faith. The Court added that if the applicant can show bad faith on the part of the RCMP, then it is possible that the applicant may have an action against the RCMP under the common law.
The decision refers to the applicant's statement of claim filed with the Queen's Bench of Alberta against certain members of the RCMP.
Mr. Murdoch has filed an appeal against this decision.
