Info Source
www.infosource.gc.ca
Common menu bar links
Info Source Bulletin Number 31A - Court Case Summaries
H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)
2006 SCC 13
Supreme Court of Canada
Date of Decision: April 21, 2006
Sections(s): 19(1)(2) ATIA;
Sections 3, 8(1)(2)(5) Privacy Act
Origin
Appeal from Federal Court of Appeal's decision that the company could raise the section 19 exemption during a section 33 review and ordered the severance of certain records containing personal information.
Issue
- Can a third party raise the section 19 ATIA exemption during a section 44 ATIA application?
Facts
The Canadian Food Inspection Agency (CFIA) received an ATIA request for certain records pertaining to a third party, H.J. Heinz Co. of Canada. The Agency determined that some of the records might contain third party information, as described in s.20 (1) ATIA, and requested, under ss. 27 and 29, that the company make representations as to why the information should not be disclosed.
The company submitted its representations and after reviewing them, the agency concluded that the records should be disclosed, subject to certain redactions. The company filed an application for judicial review under s. 44 ATIA and, in addition to the section 20 exemption, sought to raise the personal information exemption in section 19 ATIA.
Decision
The appeal was dismissed.
Reasons
- Can a third party raise the section 19 ATIA exemption during a section 44 ATIA application?
- Where a third party becomes aware that a government institution intends to disclose a record containing personal information, nothing in the plain language of ss. 28, 44 and 51 of the ATIA prevents the third party from raising this concern by applying for review.
- Section 44 is the sole mechanism under either the ATIA or the PA by which a third party can draw the court's attention to an intended disclosure of personal information in violation of section 19 ATIA, and by which it can seek an effective remedy on behalf of others whose privacy is at stake.
- 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 section 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 proper content to the right to privacy and also fails to satisfy the clear legislative goals underlying the ATIA and the PA. A narrow interpretation of section 44 would weaken the protection of personal information and dilute the right to privacy.
- Although a review under s. 44 ATIA is triggered by a third party's right to notice where requested records may contain third party information, Parliament's failure to provide a similar notice where personal information is involved does not indicate that the legislature intended that s.19 should be unavailable on a s. 44 review.
- The right to notice accorded to third parties follows logically from the specific nature of the third party information exemption and does not limit the right of review provided for in section 44.
- First, in the case of third party information, the assistance of the third party is necessary for the government institution to know how, or if, the third party treated the information as confidential information.
- Second, the mandatory nature of section 19 precludes the need for a notice provision.
- Under the ATIA, notice is a right intended to enable a party to contest the release of information and is therefore required only where the statute contemplates the possibility of making information public, as is the case with third party information under section 20(1).
- In the specific circumstances in which the ATIA does authorize the disclosure of personal information, a notice provision is either superfluous or has in fact been provided for in the legislative scheme (s. 8(5) PA). Given the underlying presumption that personal information will not be disclosed as well as the paramount importance of individual privacy, it would 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 PA. Allowing the company to raise the section 19 exemption on a section 44 review does not create a "second tier" of third parties, but allows the only third party who has access to section 44 to use this remedy to prevent harm from occurring needlessly.
