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Info Source Bulletin Number 32A - Court Case Summaries



Privacy Act

and

Access to Information Act

 

Bulletin Number 32A
Court Case Summaries



Table of Contents

Foreword

A. Information about the Government of Canada

B. Canada Web Site

C. About Info Source

D. Roles and Responsibilities

E. Additional Information

Index of Federal Court Cases



Foreword

Info Source: Bulletin – Federal Court Case Summaries

Info Source: Bulletin - Federal Court Case Summaries contains summaries of federal court cases related to the Access to Information Act and the Privacy Act up to January 2009.

This publication is updated annually.

A. Information about the Government of Canada

The telephone numbers listed below are for the Government of Canada's bilingual, toll-free service. They can be used to obtain general information and referrals for programs and services.

Toll-free

1 800 O-Canada (1-800-622-6232)
TTY/TDD

1-800-926-9105

B. Canada Web Site

Web Site

www.canada.gc.ca

The Canada web site provides a single electronic access point to general information about Canada, the federal government, its programs and services. The Canada Site features three gateways to quickly access information: Service Canada, Canada Business and Canada International. These gateways organize content based upon the needs of users rather than by departmental responsibility.

C. About Info Source

Info Source is a series of publications containing information about and/or collected by the Government of Canada. The primary purpose of Info Source is to assist individuals exercise their rights under the Access to Information Act and the Privacy Act. Info Source also supports the government's commitment to facilitating access to information regarding its activities.

Info Source includes the following three publications:

Info Source: Sources of Federal Government Information:

  • provides information about the functions, programs, activities and related information holdings of federal government institutions subject to the Access to Information Act and the Privacy Act; and
  • provides individuals and employees of the federal government with relevant information to access personal information about them held by federal government institutions subject to the Privacy Act.

Info Source: Bulletin - Statistical Reporting:

  • contains statistical information about access to information and privacy requests on an annual basis; and
  • provides cumulative statistics about access to information and privacy requests since 1983.

Info Source: Bulletin – Federal Court Case Summaries:

  • includes an annual summary of federal court cases related to the Access to Information Act and the Privacy Act.

D. Roles and Responsibilities

Treasury Board Secretariat
The Access to Information Act and the Privacy Act assign responsibility to the President of Treasury Board (as the designated Minister) to create and disseminate information annually about federal government institutions' activities and the personal information they collect, use and disclose. Treasury Board Secretariat fulfills this role by compiling and distributing the Info Source publications and by reviewing and registering Personal Information Banks.

Federal Institutions
Federal government institutions are responsible for sound management practices and decisions in responding to requests from applicants and with respect to the handling and protection of personal information.

Institutions are also responsible for providing comprehensive, accurate and up-to-date descriptions of their functions, programs, activities, related information holdings and collections of personal information for the Info Source publications on an annual basis. Each institution is responsible for the information it submits.

Each federal institution also has an Access to Information and Privacy (ATIP) Coordinator. A list of federal government ATIP Coordinators is available at: www.tbs-sct.gc.ca/atip-aiprp/apps/coords/index-eng.asp.

E. Additional Information

For more information about Info Source, the Access to Information Act or the Privacy Act, please contact:

Treasury Board of Canada Secretariat
L'Esplanade Laurier, 8th Floor, East Tower
140 O'Connor Street
Ottawa, Ontario  K1A 0R5

General Enquiries

613-957-2400
Publications

613-995-2855
Facsimile

613-996-0518
TTY

613-957-9090
General Library Reference

613-996-5494
E-Mail

info@tbs-sct.gc.ca
Treasury Board Web Site

www.tbs-sct.gc.ca
Info Source Web Site

www.infosource.gc.ca

To purchase a copy of Info Source: Sources of Federal Government Information on CD-ROM, please contact:

Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario  K1A 0S5

E-Mail

publications@pwgsc.gc.ca
Telephone

613-941-5995
Telephone Toll free (Canada & US)

1-800-635-7943
Facsimile

613-954-5779
Facsimile Toll free (Canada & US)

1-800-565-7757
Web Site

http://publications.gc.ca

All Info Source publications are available free of charge on the Internet at: www.infosource.gc.ca.



Index of Federal Court Cases

Federal Court Cases

Prepared by the Information Law and Privacy Section, Department of Justice

These cases are ordered by the most recent date of decision.

Pinaymootang First Nation v. Minister of Health and FP Canadian Newspaper Limited Partnership

Federal Court (2009)

Date of Decision: January 20, 2009

Sections(s): Para. 20(1)b) ATIA
Para. 8(2)(m)(i) PA

Origin

Application for judicial review under section 44 ATIA regarding a decision of Health Canada to release information in audit reports and personal information of three individuals found in these reports.

Issues

  1. Does the information in the audit reports qualify as "confidential information" under para. 20(1)(b) ATIA?
  2. Did the Minister validly exercise his discretion under 8(2)(m) PA to release personal information of the three individuals?

Facts

Health Canada received an ATIA request for information in certain audit reports. The Reports contained audit findings and personal information about three individuals who had decision-making authority regarding the expenditure of contribution agreement funds provided to a number of Indian bands for community health care services.

Decision

The Minister's decision to disclose the identities of the three named persons must be set aside because it was based on a characterization of conduct which is not supported by the evidence.

There is, though, no reason to delay the disclosure of the audit reports in response to the outstanding ATIA application provided that all personal information concerning the three named persons is removed.

The Minister is entitled to exercise the discretion under s. 8 PA again with respect to the three named persons, but in that event the decision must be made by another decision-maker in accordance with these reasons.

Reasons

Issue 1

On the issue of para. 20(1)(b) ATIA, there is no merit to the Applicant's argument that the audit reports  should be exempt from disclosure under para. 20(1)(b) ATIA. No evidence was provided to the Court to objectively establish that the information the Applicant supplied to the auditors was confidential or that it was information that had been consistently treated in a confidential manner by the Applicant.

The Applicant's bare assertion that it had an expectation of confidentiality is not sufficient, particularly when information concerns the potential misuse of substantial sums of public money intended to provide community health care services.

Issue 2

The privacy interests of the three individuals whose names have not been redacted from the audit reports are more problematic. I accept that decisions made under the public interest exception created by ss. 8(2)(m)(i) PA involve a discretion which the court should show deference. Nevertheless, the reasons for such a decision must be rationally connected to the purpose for the discretion and reliance cannot have been placed on irrelevant or extraneous considerations: Kelly v. Solicitor General (1992) (Federal Court) and Maple Lodge Farms Ltd. v. Government of Canada (1982) (Supreme Court of Canada).

For the judge, the problem was that two different sets of reasons were provided by the Minister for the decision to disclose the identities of three individuals in the audit reports: one set of reasons was provided to the Privacy Commissioner with an explanation for the decision as required by ss. 8(5) PA, but the Minister provided a different explanation to the named persons when they were advised of the pending decision.

The Minister's letter to the PC sought to justify the disclosure based on a conclusion that the named persons were involved in a misappropriation of public money. The problem with this characterization is that the audit reports only identify a series of suspicious or questionable transactions and lax or non-existent financial controls. They do not characterize the identified problems as a misappropriation.

The judge also questioned the fairness of a process in which the PC was told one thing about the reason for the decision and the named persons another. Had the named persons been told that the disclosure decision was based on a finding of misappropriation, they may well have acted very differently.

Any reliance placed on extraneous material not provided to the named persons, the judge said, only raises one more issue of fairness that the Minister would be obliged to overcome. If the Minister relied on additional information to support a finding of misappropriation, then the individuals' whose conduct is in question should have been provided with that evidence and given an opportunity to respond.

Comments

Appeal of this decision is being considered.

Yeager v. Chairman of the National Parole Board and Minister of Public Safety and Emergency Preparedness

Federal Court of Canada

2008 FC 113

Date of Decision: January 29, 2008

Sections(s): Sections 2, 4, 19, 41 ATIA
Sections 3(c)(d), 8(1)(2((j) and (m)(i) PA

Origin

Application for judicial review under section 41 ATIA to review the decisions of the National Parole Board (NPB) and the Correctional Services of Canada (CSC) wherein Mr. Yeager's ATIA request was denied under subs. 19(1) ATIA. The Information Commissioner agreed with NPB and CSC's refusal to release the information requested.

Issues

  1. Was the requested information "personal information" under subsection 19(1) ATIA?
  2. Was the information caught by any of the exceptions in subsection 19(2) ATIA?
  3. Did the respondents err in failing to exercise their discretion to disclose under subsection 19(2) ATIA?

Facts

The applicant, a Ph.D. student in sociology doing research on convict criminology, made requests in the Fall of 2002 to the National Parole Board (NPB) and the Correctional Service of Canada (CSC) for access to the names, institutional/community addresses, the Fingerprint System (FPS) numbers and the Decision Registry of Dangerous Offenders (DOs) located in the Ontario Region.

The NPB, in collaboration with CSC, offered to forward letters prepared by Mr. Yeager to those designated as DOs in the Ontario Region so as to allow them to consent to the release of their personal information. The Applicant rejected this solution.

On January 13, 2003, CSC determined that subsection 19(1) of the ATIA prohibited the release of the requested personal information and concluded that none of the three exceptions set out in subsection 19(2) of the ATIA applied. Dissatisfied with the respondents' refusal to disclose, the applicant brought a complaint to the Information Commissioner against the NPB and CSC regarding the "exemptions taken under subsection 19(1) of the Act." The applicant argued that the personal information should have been disclosed to him pursuant to paragraphs 8(2)(j) and 8(2)(m) of the PA.

In a letter dated July 22, 2004, the Information Commissioner dismissed the applicant's complaint as he concluded that the DOs did not consent to the disclosure of their personal information, the information requested was not publicly available and as CSC had given appropriate consideration to paragraph 19(2)(c). The Information Commissioner also noted that

CSC had offered an alternative approach to obtain the information by seeking the DOs' consent. He invited the Applicant to communicate directly with CSC if he wished to pursue that option.

On September 9, 2004, the applicant commenced his application for judicial review. In his original Notice of Application, the applicant had challenged the decision of the Information

Commissioner to dismiss his complaint. The Applicant did not allege that the requested personal Information was publicly available. On February 3, 2006, the Applicant was granted leave to file an amended Notice of Application in which he challenged the decisions of the NPB and CSC refusing to disclose the requested Records. The Applicant now argued that he should be provided with access to the requested personal information because it was in the public domain.

Decision

The application for judicial review was dismissed with costs due to the fact that the applicant rejected a proposal by which the requested information, inasmuch as possible under the circumstances, would have been available to him without breaching the legislative provisions as specified in the court's reasons.

Reasons

Issue 1

The FPS number, an identifying number assigned to inmates including DOs and their address, clearly falls within the meaning of "personal information" as defined in subsections 3(c) and 3(d) of the PA. By releasing the information requested by the applicant, the respondents would be disclosing information about the criminal history of these individuals and about the fact that they have an address in Ontario, which also amounts to "personal information". There is no dispute between the parties that the requested information is "personal information" as defined in section 3 of the PA. The respondents are required under the PA to refuse to release that information unless an exception in subsection 19(2) is applicable.

Issue 2

Once it is established that the information in question is "personal information" and, thus,

exempt under subsection 19(1) of the ATIA, the burden of proof then shifts to the requestor to show that the personal information requested is publicly available, thereby triggering any discretion to disclose the information under paragraph 19(2)(b). In this case, the applicant had failed to meet that burden by not demonstrating that all of the requested information is publicly available.

The applicant argued that the requested personal information was publicly available: the names of most DOs are available from publicly available legal databases such as QuickLaw and Carswell; and DOs' institutional/community addresses and FPS numbers are found in NPB decisions in relation to DOs, which are accessible to the general public pursuant to section 144 CCRA. However, the court rejected these arguments.

First, the court noted that while subsections 144(2) and (3) of the CCRA grant access to NPB registry decision for research purposes, these provisions clearly state that a requester "may have access for research purposes to the contents of the registry, other than the name of any person, information that could be used to identify any person or information the disclosure of which could jeopardize any person's safety."

Second, the court noted that the Court of Appeal has said that an institution considering whether any of the exceptions in subsection 19(2) ATIA must make reasonable efforts to determine if records are publicly available but did not specify how this must be accomplished. In this case, the respondents made significant efforts to determine whether the information requested was publicly available; these inquiries confirmed that it was not possible to ascertain, with a sufficient degree of certainty, whether the personal information requested was publicly available. To require the respondents to do more than they had already done would impose on them an unreasonable burden.

Finally, although the applicant requested that any portion of the requested information that could be severed from the information that was not publicly available be disclosed to him, the court concluded that the wording of the applicant's access request made it impossible to do so.

Issue 3

Even if some of the personal information had been publicly available, the head of the government institution had the discretion to refuse to disclose the personal information. The court, in reviewing a Minister or delegate's decision, must consider the exercise of their discretion and whether in doing so the discretion was exercised in good faith, in accordance with the principles of natural justice, and taking into consideration matters extraneous or irrelevant to the statutory purpose. The court is not to substitute its view of how the discretion should have been exercised for the manner in which it was exercised by the Minister or delegate. The burden of proving otherwise rests on the Applicant.

Given that the requested information was comprised exclusively of personal information, the decision-makers in this case were obligated to follow the statutory framework that required them to exempt personal information from release. Consequently, the Respondents did not have any discretion to release the requested information. In any event, the evidence is clear that the decision makers, in this case, acted in good faith and did not consider irrelevant facts when making their decision.

Paragraphs 19(2) (a), (b) and (c) of the PA operate as discretionary exemptions in circumstances where they apply. The NPB and the CSC had the discretion to decide if the information requested should be disclosed. In reviewing the nature of the requested information, the court agreed that the NPB and the CSC properly refused to exercise their discretion under the PA and their decisions should stand. The relevant legislation and the jurisprudence clearly established that personal information is not to be disclosed. The information requested by the applicant constituted personal information as defined at section 3 of the PA; therefore, the NPB and the CSC had no other alternative. The privacy-friendly alternative proposed to the applicant was not unreasonable and was the only way the CSC could have been assured that the DOs' rights were protected.

Comments

An appeal was been filed by the applicant in February 2008.

SNC Lavalin Inc. v. Minister for International Co-operation

2007 Federal Court of Appeal 397

Date of Decision: December 12, 2007

Sections(s): Sections 19, 20(1)(b), (c) and 44 Access to Information Act
Section 3 Privacy Act

Origin

Appeal of the Federal Court decision dismissing the application of SNC Lavalin under section 44 ATIA.

Issues

  1. Did the Federal Court judge err in dismissing the section 44 application of SNC relating to para. 20(1)(b) ATIA?
  2. Did the Federal Court judge err in dismissing the section 44 application of SNC relating to para. 20(1)(c) ATIA?
  3. Did the Federal Court judge err in dismissing the section 33 application of SNC relating to

Facts

SNC Lavalin is appealing the Federal Court's dismissal of SNC's section 44 ATIA arguments. Four statements found in the minutes of a meeting between SNC employees and CIDA officials are in dispute. SNC relies on paragraphs 20(1)(b), (c) and section 19 ATIA to support its arguments that these items should not be disclosed to the ATIA requester.

Decision

The Federal Court of Appeal dismissed SNC's appeal.

Reasons

  1. Regarding SNC's para. 20(1)(b) ATIA, the FCA was not satisfied that the evidence provided by SNC were sufficient to determine that the disputed items were confidential information, based on the criteria set out in the case of Air Atonabee Ltd. v. Minister of Transport (1989) 2 F.T.R. 194. The Federal Court did not err.
  2. Citing the Air Atonabee case again, the FCA concluded that the Federal Court judge made no error in reaching the conclusion that the evidence provided by SNC was too speculative to meet the test of "reasonable expectation of probable harm" found in para. 20(1)(c) ATIA.
  3. The FCA, agreeing with the CIDA Minister and the Information Commissioner, found that the disputed items fell outside of the definition of personal information under section 3 PA because of the exemption in paragraph 3(k) PA, which relates to information about an individual who is or was performing services under contract for a government institution that relates to the services performed.

The FCA also agreed with the argument that the words used in the disputed items were too general to allow the identification of certain other individuals to which the exemption does not apply.

Sawridge First Nation v. Indian Affairs and Northern Development

Federal Court of Canada

2007 FC 1231

Date of Decision: November 23, 2007

Sections(s): Section 20(1)(b), 44 ATIA

Origin

Application for judicial review by First nations Band of DIAND's decision to disclose to the requester information provided to it by the Band.

Issues

  1. Is the requested information "in the control" of the respondent?
  2. Are the documents exempt from disclosure under paragraph 20(1)(b) ATIA?

Facts

The requester, a member of the applicant Band, had sought access under the ATIA to (1) the current balances, details and transactions and supporting documents for the respondent's (a) Capital Trust Fund and (b) Revenue Trust Fund for the two years ending March 31, 2002; and (2) the respondent's consolidated financial statement for the year ending March 31, 2002. The respondent initially decided to disclose the requested records and so notified the applicant. The applicant objected to the disclosure; however, after consultations, the respondent maintained its decision to disclose.

Decision

The application was allowed.

Reasons

Issue 1

The applicant argued that the records were not "in the control" of the respondent because of conditions it unilaterally "imposed" in covering letters delivering the records at issue and because of the "trustee/beneficiary relationship" that exists between the respondent and applicant by virtue of the "fiduciary relationship" that the Crown has with First Nations. Justice Gibson rejected these arguments, concluding that the applicant had no authority to impose terms and conditions on the provision of the records at issue to the respondent. Once the records were provided, they were in the possession and "control" of the respondent for the purposes of the Act.

The special relationship, however described, that exists between the parties does not limit the concept of documents in the respondent's control. If Parliament had intended that First Nations have a special status and exemption under the Act, it could easily have done so. It chose not to.

Issue 2

Justice Gibson concluded that the records contained confidential financial information supplied by a third party and that the applicant had gone to extraordinary lengths to treat them consistently in a confidential manner at all relevant times, thus meeting the criteria set out in Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.).

Justice Gibson rejected the respondent's argument that Montana Band, particularly as it relates to paragraph 20(1)(b) of the ATIA, could be distinguished because the requester there was a journalist member of the general public whereas here the requester was a member of the applicant Band and was, thus, like the Band itself, an "owner" of the records at issue. Given the manner in which the applicant treated the records at issue – not only in relation to independent third parties, but equally in relation to individual members of the applicant Band –Justice Gibson concluded that the requester and other members of the Band in this case certainly were not treated like "owners".

Justice Gibson distinguished the respondent's reference to a passage in Montana Band which said that only Band members would have access to the records at issue here since it belonged to them; others "whose interests differ from those of the Band" would not. In this case, the requester's interest, like the interest of the journalist requester in Montana Band, was not at all likely to be consistent with the applicant's interest as represented by its Chief and council members. There was no certainty, whatsoever, that if the requester gained access to the records at issue that they would not be used for purposes contrary to the interests of certain other members of the applicant Band. Thus, on the facts, Justice Gibson was satisfied that paragraph 20(1)(b) of the ATIA applied and that the records at issue were exempt from disclosure to the requester.

Comments

Notice of appeal filed by the Respondent on January 2008.

Fédération des producteurs acéricoles du Québec v. Canadian Food Inspection Agency

Federal Court of Canada

2007 FC 704

Date of Decision: July 5, 2007     

Sections(s): Section 3 PA
Sections 4, 20(1)(a)(b)(c), 27, 44 ATIA

Origin

This is an application filed by the Fédération des producteurs acéricoles du Québec (applicant) under s. 44ATIA for review of a decision by the Canadian Food Inspection Agency (CFIA) authorizing the disclosure of documents belonging to the applicant.

Issues

  1. Does the applicant's preliminary argument that the documents covered by the application are not under the control of the CFIA have merit?
  2. Does paragraph 20(1)(a) ATIA apply?
  3. Does paragraph 20(1)(c) ATIA apply?
  4. Does paragraph 20(1)(b) ATIA apply?

Facts

The CFIA received through a complaint from a former employee of Cintech certain documents belonging to the applicant that were given to the Agency without Cintech's consent. The CFIA subsequently received an access to information request regarding the complaint. The pertinent documents were identified by a CFIA analyst who proposed they be disclosed through the process prescribed in the ATIA. The applicant, citing section 20 ATIA, objected to the disclosure of any of the documents. The CFIA notified the applicant of its decision to disclose some of the documents. That decision is the subject of this application for review. The applicant also made a preliminary argument that the documents covered by the access to information request are not under the legal control of the Agency and therefore cannot be disclosed by the Agency because they were obtained illegally by a dismissed employee.

Decision

The application for review was allowed.

Reasons

Martineau J. began by determining the standard of review applicable to the decision using the pragmatic and functional approach put forward by the Federal Court of Appeal, namely that "correctness" is the standard of review applicable to decisions on the disclosure or non-disclosure of documents under subsection 20(1) ATIA.[1] The judge also pointed out that as part of an application for review pursuant to section 44 ATIA, the Court should examine the matter de novo and, if necessary, proceed with a detailed review of each of the documents at issue.[2]

Issue 1

Martineau J. rejected the applicant's argument that the CFIA does not have legal control of the documents because they were obtained illegally by a dismissed employee. In his view, even though the documents were given to the CFIA without the applicant's consent, the fact remains that they are documents under the control of the institution and subject to the right of access prescribed in section 4 ATIA. The way in which a federal government institution obtained the documents covered by an access to information request is not a relevant factor in determining whether the documents may be disclosed under the ATIA. Adopting a principle established by the Federal Court of Appeal, the judge expressed the view that the fact that the federal government institution has the documents in its possession within the legal or physical meaning of the word suffices for the ATIA to be applicable.[3] The judge also held that the documents in question are under the control of the CFIA because the Agency has the function of implementing and overseeing the application of the Maple Products Regulations, which were adopted pursuant to the Canada Agricultural Products Act. The judge recognized that CFIA inspectors have the power under the Regulations to investigate a complaint and that in the course of an investigation, the inspectors could have asked to see any relevant document held by the applicant. The judge therefore found that all of the documents covered by the request are legally under the control of the CFIA.

Issue 2

The judge dismissed the objection to disclosure based on paragraph 20(1)(a) ATIA which the applicant made for a specific page of the document. The judge recognized the technical nature of some of the information on that page but could not find that the information constituted "trade secrets" as defined in the case law, as most of the information on the page is in the public domain.[4]

Issue 3

The judge also dismissed the objection to disclosure based on paragraph 20(1)(c) ATIA on the grounds that the applicant submitted no evidence on the basis of which the Court could find that the disclosure of the documents in question could reasonably be expected to result in probable harm. The judge went on to say that the risk alleged is speculative and remote. He adopted the positions taken in the case law on the application of paragraph 20(1)(c) ATIA, namely the requirement of a "reasonable expectation of probable harm" and, with regard to "material financial loss", evidence of a "reasonable expectation of probable harm".[5]

Issue 4

The Court held that paragraph 20(1)(b) ATIA applies to all of the documents examined and sustained the objection to disclosure based on that paragraph. The judge dismissed the CFIA's argument that regulatory control of the applicant's activities carried out in the public interest supports disclosure of the documents. Examining the requirements for the application of paragraph 20(1)(b), the judge determined that the documents examined contain technical or commercial information and, because they have never been publicly circulated by the applicant, are confidential. On this last point, the judge adopted in part the approach taken by MacKay J. in Air Atonabee and found that the information in the documents cannot be obtained from sources that can be otherwise accessible by the public or by observation or independent study, nor does the regulatory nature of the applicant's activities confer on the public a general right of access to the information in the documents examined.[6] The judge does not appear to have been persuaded that the information was communicated confidentially by the Fédération with the reasonable expectation that it would not be disclosed. He nevertheless made the point that the fact that the information was provided to the CFIA by a fourth party, namely the person making the complaint, without the authorization of the applicant, does not preclude a finding, for purposes of the application of paragraph 20(1)(b), that the information was provided by a third party.[7] Finally, the judge held that the documents were treated confidentially by the applicant.

[1] Wyeth-Ayerst Canada Inc .v. Canada (Attorney General), 2003 FCA 257, paragraph 15; H. J. Heinz Company of Canada Ltd. v. Canada (Attorney General), 2006 FCA 378, paragraph 15.

[2] Air Atonabee Ltd. (c.o.b. City Express) v. Canada (Minister of Transport), [1989] F.C.J. No. 453, paragraph 30.

[3] Canada Post Corporation v. Canada (Minister of Public Works (C.A.), [1995] 2 F.C. 110.

[4] Société Gamma Inc. v. Canada (Secretary of State Department), [1994] F.C.J. No. 589 (QL), paragraph. 7. The Court defined a trade secret as "something, probably of a technical nature . . . which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure".

[5] Canada Packers Inc. v. Canada (Minister of Agriculture) (F.C.A.), [1989] 1 F.C.; SNC-Lavallin Inc. v. Canada (Department of Public Works), [1994] F.C.J. No. 1059 (QL).

[6] Supra, note 2.

[7] In SNC-Lavallin Inc., supra, note 5, MacKay J. observed that "third party" within the meaning of paragraph 20(1)(c) is not limited to the applicant under section 44 ATIA, but under section 2 ATIA can include "any party other than one that requests information or the government institution."

Department of Justice v. Blank

Federal Court of Appeal (FCA)

2007 FCA 87

Date of Decision: March 1, 2007

Sections(s): Sections 23 and 25 ATIA

Origin

Appeal from a Federal Court decision where the judge stated that "documents determined to be subject to the exemption provided by section 23 ATIA are to be severed in the same manner as any other document subject to severance."

Issues

Section 23 ATIA empowers the head of a government institution to refuse to disclose a record which contains information which is subject to solicitor-client privilege. However, like other exemptions a record exempted from disclosure by section 23 is subject to the severance principle in section 25. This provision imposes a duty to sever portions of documents which do not contain the information for which an exemption is claimed and which can reasonably be severed without disclosing the exempt information. This raises three issues:

  1. Whether the Federal Court Judge erred when he held that the Minister's statutory duty to sever extends not only what has been called a privileged communication's "general identifying information", but also to the body of the communication itself.
  2. Whether the Applications Judge failed to include in the list of documents for which disclosure was required some documents which counsel for the Minister had already disclosed to Mr. Blank.
  3. Whether the Minister of Justice had waived the solicitor-client privilege with respect to two other documents.

Facts

This is an appeal by the Minister of Justice from a decision of a Judge of the Federal Court concerning the extent of the Minister's duty to disclose parts of documents containing communications covered by solicitor-client (legal advice) privilege. The Minister had refused to disclose these documents in response to a request by Sheldon Blank under the ATIA.

Decision

The FCA agreed with the Federal Court decision that the documents at issue were properly the subject of solicitor-client privilege under s. 23 and do not contain extraneous matter, such as policy advice or personal topics.

Reasons

Issue 1

Whether the Applications Judge erred in law when he held that the Minister's statutory duty to sever extends not only what has been called a privileged communication's "general identifying information", but also to the body of the communication itself.

According to the Court of Appeal, the Applications Judge misunderstood the scope of the duty to sever established in Blank v. Canada (Minister of Environment), 2001 FCA 374 ("Blank 2001"). When considering whether disclosure has been wrongly refused, a Judge should not approach a record containing a privileged solicitor-client communication by asking whether disclosure of parts of the communication would cause harm.

It is well established that s. 25 applies to records falling within s. 23. However, s. 25 must be applied to solicitor-client communications in a manner that recognizes the full extent of the privilege. It is not Parliament's intention to require the severance of material that forms a part of the privileged communication by, for example, requiring the disclosure of material that would reveal the precise subject of the communication or the factual assumptions of the legal advice given or sought.

According to the Court of Appeal, a reading of Sharlow J.A.'s discussion in Blank FCA 2001 as a whole (including her statement that policy advice by a lawyer in a letter also giving legal advice may not be within solicitor-client privilege) indicates that, in her view, the proper test is whether the information is part of the privileged communication. If it is, then section 25 does not require that it be severed from the balance of the privileged communication. The Court of Appeal was of the view this kind of broad approach to the scope of solicitor-client "advice" privilege is consistent with the SCC cases Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 and Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31.

The Court of Appeal noted that a heading may reveal the very subject-matter of the privileged communication. While referring to Blank FCA 2001 according to which "generally innocuous opening words and closing words of the communication" can be severed, the Court of Appeal was of the view that the adjective "innocuous could be interpreted as requiring an examination of the body of a privileged communication to determine if disclosure of particular sentences would be harmful.

The Court of Appeal dismissed Mr. Blank's argument according to which the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39 indicated a broader scope for the disclosure of privileged documents sought under the Access Act. The statement of Fish J. according to which the "permissive language [in s. 23 of the ATIA] supports an interpretation that favours more government disclosure, not less" is not applicable in this case, as Blank 2006 SCC 39 deals with litigation privilege, not legal advice privilege. The statement made by Bastarache and Charron JJ. (which determined that legislation such as the ATIA may infringe solicitor-client privilege and would be interpreted restrictively) must be read together with Bastarache J.'s conclusion that section 23 ATIA should be interpreted as exempting both legal advice and litigation privilege from the general statutory duty to disclose. The ATIA thus does not reduce the protection afforded by the common law to legal privilege.

Issue 2

Whether the Federal Court failed to include in the list of documents for which disclosure was required some documents which counsel for the Minister had already disclosed to Mr. Blank;

Issue 3

Whether the Minister of Justice had waived the solicitor client privilege with respect to two other documents.

Mr. Blank stated that, although he did not have a copy of the documents in question, counsel for the Minister had shown them to him, and he had made detailed notes of their content. Counsel said that he did not remember having shown this document to Mr. Blank. According to the Court of Appeal, a comparison of Mr. Blank's notes and the documents in question shows that the notes contain detailed information and phrases which could only have come from a perusal of the documents themselves. The Court concluded that Mr. Blank has seen the documents and that they should be disclosed.

Information Commissioner of Canada v. Minister of Citizenship and Immigration and Philip Pirie and the Privacy Commissioner of Canada

2002 F.C.J. No. 950

Federal Court Appeal

Date of Decision: June 21, 2002

Sections(s): S. 19(1) Access to Information Act (ATIA); para. 3 (e), (g), (h), (i), (j), s. 12(2) Privacy Act (PA)

Origin

Appeal of a Federal Court ruling.

Issues

  1. Whether the names of individuals interviewed in the course of an administrative review, who expressed views or opinions about another individual, and portions of their interviews which would identify the interviewees, is "personal information" of those interviewees or of the individual who was the subject-matter of the opinions?
  2. Where "personal information" can be personal to more than one individual, which interest should prevail?

Facts

Allegations of discriminatory behaviour and harassment at CIC's Case Processing Centre (CPC) in Vegreville, Alberta, prompted CIC to request an independent consultant to conduct an administrative review of the corporate culture in the CPC. Interviews were conducted on a voluntary basis. Employees who participated were advised that the interviews would be confidential; managers who participated were not so advised. The notes from the interviews were to be maintained by the consultant and were not to be passed to CIC.

Mr. Pirie, then Director of the CPC at Vegreville, was provided by CIC with a copy of the consultant's report and, on the same day, was relieved of his duties.

Mr. Pirie subsequently sought access, under the ATIA, to the notes from the interviews conducted by the consultant. As a result of that request, the notes came into the possession of CIC. CIC denied access to the notes in part. Mr. Pirie complained to the Information Commissioner and further disclosure was made. In the end, the names of the persons interviewed, information regarding their position, and the views or opinions about Mr. Pirie when their disclosure would indirectly disclose the identity of the person who expressed them, were exempted from disclosure pursuant to s. 19 ATIA. This exemption applies to information covered by the definition of "personal information" in s. 3 of the Privacy Act (PA).

Decision

The appeal was allowed. The Minister of Citizenship and Immigration was ordered to disclose to Mr. Pirie the records or parts thereof that do not qualify for exemption under subs. 19(1) of the ATIA.

Reasons

Preliminary findings of the Court

Prior to addressing the first issue, the Court made the following preliminary observations. (1) Considerations about what Mr. Pirie intended to do with the information and the reasons that prompted his request for access were found irrelevant where the issue, as here, turns on an individual's right of access to information. (2) The severance of the names of the interviewees and any information that could identify them renders meaningless the right conferred on an individual under subs. 12(2) PA "to request correction of [his] personal information". (3) The promise of confidentiality made by CIC to some of the interviewees cannot override the obligation imposed by the ATIA to release the information, nor be opposed to Mr. Pirie should he be entitled to disclosure. (4) The chilling effect disclosure might have on possible future investigations have been consistently denied as a ground for refusing disclosure.

Issue 1 – Definition of "personal information"

Given the expansive meaning attributed to "personal information" in Dagg v. Canada (Minister of Finance) ([1997] 2 S.C.R. 403), it is clear that the same information can be "personal" to more than one individual.

La Forest J.'s statement in Dagg to the effect that if a government record is captured by the opening words of s. 3, "it does not matter that it does not fall within any of the specific examples" enumerated therein, cannot be interpreted as meaning that it does not matter that a government record is expressly or impliedly excluded by one of the specific examples. Parliament cannot be intended to have included in the general words what it has excluded in the examples given.

The Court first looked at para. 3(e) which makes it clear that personal opinions of an individual (an interviewee) are his "personal information" except when they are about another individual (Mr. Pirie) in which case para. 3(g) provides that they become the latter's personal information.

The Court then concluded that an opinion presumes an opinion-holder. It follows that the name and identity of interviewees are as much the personal information of Mr. Pirie, pursuant to para. 3(g), as is the substance of the opinions or views expressed.

Paragraph 3(h) resolves any doubt as to whether para. 3(e) includes the identity of the holder of the opinions or views in the words "personal opinions or views of the individual". Only when the views concern a proposal for a grant, an award or a prize is the identity of the holder excluded under para. 3(h).

Had Parliament intended this "clarification" to apply to the whole of para. 3(e), it would have said so in the same way that it did in para. 3(h). Its absence confirms that the very notion of opinions and views of an individual contemplates the source of that opinion or view.

The Court then examined the second branch of para. 3(i). According to the Court, it applies where the disclosure of the name itself would reveal information about the individual, but it does not apply to contextual information (as opposed to the name) that could reveal the identity of the interviewees. Where the name does not appear, the information does not fall under para. 3(i). While the Court entertained some doubt that the words "information about the individual" have the broad meaning that La Forest J. gave them in Dagg, in obiter (para. 85 of the Dagg decision), it nevertheless held that the name itself of an interviewee is personal information of the latter under para. 3(i) although this finding had no impact on its ultimate conclusion.

In the end, the Court found that the names of the interviewees were the personal information of both Mr. Pirie pursuant to para. 3(g) and of the interviewees themselves pursuant to para. 3(i). In order to decide if Mr. Pirie could have access to this information, the Court decided to determine who had the greater interest in the information: Mr. Pirie or the interviewees?

Issue 2 – Balancing competing interests

The scheme of the PA requires that one interest must prevail over the other since a government institutions cannot, with respect to the same information, both disclose it with the consent of an individual and refuse to disclose it because of the lack of consent of another individual. The question of whose interest must prevail requires a balancing exercise that takes into account the private interests of the interviewees and Mr. Pirie as well as the public interest in disclosure and non-disclosure.

According to the Court, the interviewees' private interest in not revealing the fact that they participated in the inquiry and keeping their conversations with the investigator confidential is minimal. The fact that they participated in the inquiry has, in itself, little significance and, to the extent they can justify the views they expressed, they should not fear the consequences of the disclosure, although there may be some.

The Court rejected the argument that the chilling effect the disclosure might have on future investigations, coupled with the fact that promises of confidentiality made by CIC to some of the interviewees will not be given effect, justified the public interest in non-disclosure.

The Court found that the private interest of Mr. Pirie was significant. Implicit, if not explicit in the report and in the action taken by CIC as a result of its publication, is the fact that he bears some responsibility for the problems which were found to exist at the Centre. He must be given the opportunity to know what was said, and by whom, against him, if only to exercise his right under subs. 12(2) PA to clear his name in CIC's archives.

The public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. Whatever the rules of procedural propriety applicable in a given case, fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views to challenge their accuracy and to correct them if need be.

The Court concluded that both the private interest of Mr. Pirie and the public interest mandated the disclosure of the name of the interviewees.