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Info Source Bulletin Number 31A - Court Case Summaries
Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)
2007 FCA 272
Federal Court of Appeal
Date of Decision: August 27, 2007
Sections(s): Sections 3(1), 19, 20(1)(b)(c)(d) and 44 ATIA
Origin
Appeal from the Federal Court decision dismissing the CIBC application for judicial review of the Commission's decision to release the requested records.
Facts
In 2000, the Commission began an audit of CIBC pursuant to the EEA. The Commission issued, in the fall of 2002, an interim report containing its preliminary findings – this report was communicated to the CIBC. In November 2002, the Commission received a request under the ATIA for disclosure of the interim report. CIBC was informed of this request and was asked for comments. CIBC opposed the release of the interim report on the ground of the statutory privilege created by s. 34 EEA, which states that information obtained by the Commission under the Act is privileged and shall not knowingly be, or be permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained. CIBC also claimed that the report contained sensitive commercial information which it had supplied to the Commission in confidence. The Commission advised CIBC in February 2003 that it did not intend to disclose the interim report as it contained confidential commercial information, and was thus exempt from disclosure pursuant to para. 20(1)(b) ATIA.
In July 2004, the Commission received a request under the ATIA for disclosure of its final report. The Commission advised CIBC of the request and asked for its views, without disclosing that the request was made orally and not in writing. Upon being consulted, CIBC opposed the release of the final report, relying on the same ground it used to oppose the release of the interim report. On October 26, 2004, the Commission advised the CIBC that it intended to disclose the final report. Two days later, the Commission notified CIBC that its previous decision not to release the interim report had been based on para. 16(1)(c) ATIA, instead of para. 20(1)(b) ATIA.
The CIBC filed an application to the Federal Court under s. 44 ATIA seeking review of the Commission's decision. Blanchard J. dismissed the application except with respect to two discrete pieces of information CIBC appealed this decision to the Federal Court of Appeal and the Canadian Bankers Association (CBA) was granted intervener status.
Decision
The Federal Court of Appeal allowed the appeal. The decision to disclose the final report was returned to the Commission with a direction to dispose of the request on the basis that the final report contained confidential commercial information which was treated consistently in a confidential manner by CIBC, further to para. 20(1)(b) of the ATIA.
Reasons
- The Commission did not comply with section 6 ATIA when it decided to disclose the final report in the absence of a written request. However, there is nothing in the ATIA which purports to make anything done in the absence of a written request void. As no arguments had been presented on the distinction between a mandatory, as opposed to a discretionary, provision, the Court of Appeal assumed, without deciding, that the request for disclosure of the Final Report was not void solely by reason of not having been made in writing.
- The Court of Appeal overturned the Federal Court decision and exempted the information provided by CIBC pursuant to para. 20(1)(b) ATIA, which protects financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party. The Court of Appeal held that the test for determining whether the content of a record contains confidential information is that the information found therein is not available from sources otherwise accessible by the public: Air Atonabee Ltd. v. Canada (Minister of Transport), 27 F.T.R. 194. CIBC's belief that the information was privileged and communicated in the expectation that it would be kept in confidence was not seen as unreasonable. The Court of Appeal, relying on the Air Atonabee Ltd. case, stated that the public benefit requirement does not require a weighing of the public interest between disclosure and non-disclosure; if the relationship is not contrary to the public interest, and if that relationship will be fostered by preserving the confidentiality of the communications passing between the parties to the relationship, then non-disclosure is indicated. The Court of Appeal concluded that the confidential relationship between the Commission and the subject of an employment equity audit is in the public interest, as evidenced by s. 34 EEA.
- Although the Court of Appeal allowed the appeal on the basis of para. 20(1)(b) ATIA, it examined the other grounds of appeal for the sake of completeness. Pelletier J.A. affirmed the application judge's conclusion that para. 20(1)(c) ATIA (information whose disclosure could adversely affect a party's competitive position) did not apply as the evidence brought by CIBC was speculative.
- The FCA also affirmed the lower court ruling that the Commission had not breached the principles of fundamental justice when it revised the grounds upon which it refused to disclose the interim report after CIBC had made its submissions regarding the disclosure of the final report.
