Info Source Bulletin 38A - Federal Court Decision Summaries

Federal Court of Canada

Citation:

2014 FC 1026

Date of decision:

October 29, 2014

Provisions of the Access to Information Act (ATIA):

Subsection 15(1) and section 41

• Subsection 15(1) – International affairs and defence
• Section 41 – Review by Federal Court

Summary

Under section 41 of the ATIA, an application for judicial review can only proceed where there has been a refusal to disclose information. Since the Minister eventually disclosed all records in his control, there was no basis to grant this application for judicial review; it was moot.

Issue

• Whether the Respondent, Citizenship and Immigration Canada (CIC), had refused to provide the Applicant access to information pursuant to the ATIA.

Facts

The Applicant is a Syrian national who successfully sought permanent residence in Canada while living in Germany. He landed in Canada in April of 2005.

On March 1, 2004, the Applicant attended an interview at the Canadian Embassy in Berlin. According to the Applicant, the questions focussed on the Syrian intelligence services and the involvement, if any, that he had with them. The Applicant believes false information identifying him with Syrian intelligence was forwarded to the Canadian authorities during the processing of his application for permanent residence.

The Applicant made two access to information requests that CIC responded to on February 19, 2013. Certain portions of the requested information were withheld or redacted pursuant to subsection 15(1) of the ATIA.

The Applicant made a complaint to the Office of the Information Commissioner (OIC) challenging CIC's decision to withhold information. By letter sent April 26, 2013 (but mistakenly dated February 19, 2013), CIC advised the Applicant that the requested documents were being disclosed in their entirety, no longer applying subsection 15(1) of the ATIA.

On July 13, 2013, the OIC released the results of its investigation of the Applicant's complaint about the CIC's application of subsection 15(1) of the ATIA. The OIC found the complaint to be well-founded, but since the CIC no longer applied subsection 15(1) of the ATIA, the OIC determined that the complaint was concluded and it was not necessary to make recommendations. The Applicant thereafter applied for judicial review of the Minister's decision.

Decision

The application for judicial review was dismissed without costs.

Reasons

The sole issue to be addressed is whether CIC refused to provide the Applicant access to information pursuant to the ATIA.

Pursuant to section 41 of the ATIA, applications for judicial review can only proceed when there has been a refusal to disclose information. Since CIC has disclosed to the Applicant all the records in its control, there is no basis for the Applicant's application for judicial review. The fact that there was initially a refusal does not matter, since CIC had disclosed all information within its control. The application is therefore moot, as there is no longer a live issue between the parties. Any decision by the Court would have no practical effect.

CIC had given a positive response to the Applicant. Suspicions on his part about the existence of other information is not a ground to order CIC to do anything more.

CIC has no control over information in the possession and control of provincial authorities and should the Applicant wish to access such information, his remedy lies in making a request to such provincial authorities.

The decision is available on the Federal Court Decisions website at: Albatal v. Canada (Citizenship and Immigration), 2014 FC 1016.

Federal Court of Canada

Citation:

2014 FC 957

Date of decision:

October 8, 2014

Provisions of the Access to Information Act (ATIA):

Sections 44 and 20

• Section 44 – Third party may apply for a review
• Section 20 – Third party information

Summary

The exemption of a trade secret as per paragraph 20(1)(a) of the ATIA must be something 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 from its mere disclosure.

Customer names and/or brand names found within government inspection reports, notices of detention and notices of release from detention do in fact fall within the paragraph 20(1)(b) exception.

In order to rely on the paragraph 20(1)(c) exemption, Burnbrae Farms Limited (the Applicant) must demonstrate, on a balance of probabilities, that there is a “reasonable expectation of probable harm

The paragraph 20(1)(d) exemption requires obstructions to negotiations rather than merely the heightening of competition.

Issues

• What is the proper standard of review to be applied to decisions of the Canadian Food Inspection Agency (CFIA)?
• Whether CFIA had correctly applied the subsection 20(1) exemptions to the records at issue.
• Whether the Applicant was afforded procedural fairness in CFIA's decision-making process.

Facts

This is an application for judicial review of two decisions of the CFIA (files T-1053-13 and T-699-13) to disclose certain information in relation to the Applicant.

Decision

The application for judicial review was granted in part.

With the one exception, the Court found the information contained within the disputed records did not fall within the paragraphs 20(1)(a),(b),(c), or (d) exceptions.

The Court did find that the customer names and/or brand names found within the Shell Egg Product Inspection Reports, Notices of Detention and Notices of Release from Detention do in fact fall within the paragraph 20(1)(b) exception. Accordingly, the Court ordered CFIA to redact that information prior to disclosure of those documents.

Reasons

Federal Court of Canada

File number:

T-1298-10

Date:

January 14, 2014

Provision of the Access to Information Act (ATIA):

Section 23

• Section 23 – Solicitor-client privilege

Summary

Application of the solicitor-client privilege exemption to documents regarding the amounts spent by the Attorney General of Canada (the Attorney General) in certain litigation files.

Issues

• Whether the Attorney General can claim the solicitor-client exemption when his client is a public body.

• Whether the Department of Justice (Justice) may apply the solicitor-client exemption to the requested documents and sever information concerning the identity of counsel who provided legal services, the dates and description of the actions of each counsel, the number of hours worked for each action and the amount of the fees charged.

Facts

The applicant filed an access to information request with Justice for disclosure of documents containing details of the amounts that the Attorney General had spent on eight litigation files. The cases had been before the Federal Court and the Canadian Human Rights Tribunal and involved the applicant and two other people, all of whom were former members of the Canadian Armed Forces. Justice applied the solicitor-client exemption under section 23 of the ATIA and removed some information before disclosing certain documents to the applicant.

The applicant complained to the Information Commissioner who investigated and dismissed his complaint. He then filed an application for judicial review under section 41 of the ATIA.

Decision

The application for judicial review was dismissed.

Reasons

The Court stated that it could not accept the argument that the Attorney General cannot claim the solicitor-client exemption in refusing to disclose documents when his client is a public body. The Court referred to Stevens v. Canada (Prime Minister), [1997] 2 F.C. 759.

Given the evidence in the record, the Court determined that the following information severed from the documents disclosed was subject to solicitor-client privilege and therefore falls under the exemption under section 23 of the ATIA: information concerning the identity of the counsel who provided legal services; the dates and description of the actions of each counsel; the number of hours worked for each action; and the amount of the fees charged.

Moreover, the Court stated that there was nothing to indicate that the discretion to refuse disclosure was exercised unlawfully.

The decision is available on the Federal Court Decisions website at: Dufour v. Canada (Attorney General), 2014 FC T-1298-10.

Federal Court of Canada

Citation:

2014 FC 487

Date of decision:

May 21, 2014

Dispositions of the Access to Information Act (ATIA):

Paragraphs 20(1)(c) and 20(1)(d)

• Paragraph 20(1)(c) – Third party information, material financial loss or gain to a third party or prejudice to its competitive position
• Paragraph 20(1)(d) – Third party information, contractual or other negotiations

Summary

The total price of a contract may be exempt from disclosure under paragraph 20(1)(c) of the ATIA when the number of units of service plus the description of services is already public, because the price per unit could be discerned from the combination of those pieces of information. This would raise a reasonable expectation of probable harm which is greater than a mere possibility.

Issues

Facts

These two related cases were heard and decided together. The case T-1003-13 challenges the decision by the Minister of Public Works to disclose a contract price. The case T-1300-13 challenges a decision by HRSDC to disclose certain parts of contracts entered into since 2006.

Equifax provides services to many government departments related to commercial credit scores, consumer credit checks, employee screening, authentication services, and various analytic services.

Decision

Reasons

Federal Court of Canada

Citation:

2014 FC 1170

Date of decision:

December 19, 2014 (Public Reasons for Judgment)

Provisions of the Access to Information Act (ATIA):

Section 19, subsection 24(1) and section 44

• Section 19 – Personal information
• Subsection 24(1) – Statutory prohibition against disclosure
• Section 44 – Third party may apply for a review

Summary

The appropriate standard of review with respect to the application of section 24 of the ATIA is correctness.

A public interest exception to the statutory privilege created under subsection 119 (2) cannot be read into this provision of the Canada - Newfoundland Atlantic Accord Implementation Act (Accord Act).

Issues

• What is the appropriate standard of review?
• Whether the Board commit a reviewable error in finding that the privilege provided in subsection 119(2) of the Accord Act did not exempt the documents in issue from disclosure pursuant to subsection 24(1) of the ATIA.

Facts

Husky Oil Operations Limited (the applicant) was engaged in petroleum drilling and extraction in the Newfoundland and Labrador offshore area. This included the operation of the offshore drilling rig the “Henry Goodrich.” The Newfoundland and Labrador Offshore Petroleum Board (the Board) is a statutory body responsible for regulating the activities of operators in the oil and gas industry, including those of the applicant.

The Board received an access request dated January 15, 2013 seeking “written incident notifications and completed incident investigation reports provided to the [B]oard by the operator of the Henry Goodrich”.

On February 6, 2013 the Board sent a letter to the applicant, advising the applicant about the request and asking for the applicant's position as to whether information should be withheld or redacted pursuant to the ATIA. On February 21, 2013 the Board sent a second letter to the applicant, attaching more documents that were relevant to the access request.

By letter dated February 25, 2013 the applicant responded to the Board's February 6 letter, advising that the records should be withheld from disclosure in their entirety pursuant to subsection 24(1) of the ATIA (which states that a government institution shall refuse to disclose information the disclosure of which is restricted by any provision in schedule II of the ATIA). The applicant expressed the opinion that the privilege created by subsection 119(2) of the Accord Act (which is contained in schedule II of the ATIA) applied and that none of the subsection 119(5) exceptions to that privilege would allow disclosure.

The applicant also expressed the opinion that, notwithstanding its view that the records were exempt from disclosure in their entirety, certain portions of the records should be redacted pursuant to section 23 of the ATIA on the grounds of solicitor-client privilege. As well, the applicant stated that confidential technical information was exempt from disclosure pursuant to paragraph 20(1)(b) and certain personal information was exempt pursuant to subsection 19(1) of the ATIA.

By letter dated February 26, 2013, the applicant responded to the Board's February 21 letter, repeated its objections to disclosure and relied on the same statutory provisions.

By letter dated March 6, 2013 the Board responded to the applicant, determining that the information contained in the disputed documents should be, in large part, disclosed. The Board claimed that it would be in the public interest to release the documents as permitted by subsection 119(2) of the Accord Act, that is, “for the purposes of the administration and enforcement of Parts II and III of the Accord Act.” The Board agreed with the applicant that certain information in the documents should be redacted pursuant to section 23, paragraph 20(1)(b) and section 19 of the ATIA.

The applicant sought judicial review of the March 6, 2013 decision of the Board pursuant to section 44 of the ATIA.

On May 3, 2013, the Information Commissioner of Canada was added as a respondent to the proceeding.

Decision

The Board erred in its interpretation of subsection 119(2) of the Accord Act. The decision of the Board was set aside and, pursuant to subsection 24(1) of the ATIA, the Board was ordered not to disclose the records in issue.

Reasons

Federal Court of Canada

Citation:

2014 FC 917

Date of decision:

• September 26, 2014 (Confidential Reasons for Judgment)
• October 28, 2014 (Public Reasons for Decision)

Provisions of the Access to Information Act (ATIA):

Subsections 19(1) and (2)

• Subsection 19(1) – Personal information
• Subsection 19(2) – Where disclosure authorized

Provisions of the Privacy Act (PA):

Section 3

• Section 3 – Definitions, personal information

Summary

Information need not be subjectively “personal” in nature nor implicate concepts such as identity, intimacy, dignity or integrity to constitute “personal information”. Information about individuals' acting in a professional capacity such as the names, job titles and business contact information of private sector employees, satisfies the definition of “personal information” under the ATIA and PA.

Where reasonable efforts at the time a release package is being prepared indicate that personal information is not publicly available, the discretion conferred under subsection 19(2) of the ATIA to disclose personal information that is publicly available is not engaged. Subsequent evidentiary developments indicating some information is publicly available cannot justify a review of a decision not available to the institution head for reasonableness.

Issues

• What is the appropriate standard of review with respect to the application of the exemption for “personal information” and discretionary decisions about its release under the ATIA?
• Whether the names, titles and business contact information of private sector employees are “personal information” for the purposes of the ATIA and PA.
• Whether the redacted information should be disclosed pursuant to subsection 19(2)(b) of the ATIA when evidence collected after review proceedings are initiated suggests some of it is publicly available.

Facts

The President and Chief Operating Officer of Geophysical Services Inc (“GSI”) made an access request to the Department of Natural Resources Canada (“NRCan”) for all records related to all instances in which data owned by GSI had been disclosed to any third parties, including other government agencies, foreign government agencies, research institutions or the public.

NRCan redacted what it had identified as the personal information of third parties from the release package provided to the requester. The requester complained to the Information Commissioner (the Commissioner). NRCan disclosed further information to the requester but maintained the legitimacy of its decision to redact the names, titles and business contact information of private sector employees identified in the responsive records notwithstanding the Commissioner's recommendation to disclose this information. The Commissioner was of the view that the redacted information was not “personal information” for the purposes of the ATIA because it was professional, not personal, information that did not touch on an individual's identity, intimacy, dignity or integrity.

Decision

The application for judicial review under section 42 of the ATIA was dismissed.

Reasons

Federal Court of Canada

Citation:

2014 FC 392

Date of decision:

April 28, 2014

Provisions of the Access to Information Act (ATIA):

Section 19, paragraphs 20(1)(b), 20(1)(c), and 20(1)(d)

• Section 19 – Personal information
• Paragraph 20(1)(b) – Third party information, trade secrets
• Paragraph 20(1)(c) – Third party information, material financial loss or gain expected to prejudice the competitive position
• Paragraph 20(1)(d) – Third party information, to interfere with contractual or other negotiations

Summary

The ATIA was not meant to exempt from disclosure regulatory conclusions made by governmental agencies. Rather, the Act was meant to facilitate access to such information and, consequently, to promote transparent regulatory processes and an informed public.

Regulatory conclusions are generally not subject to the exemptions in section 20, whereas information supplied to a government institution for its regulatory assessment may be. Effective and creative redaction is appropriate where regulatory conclusions and information subject to section 20 intersect.

Issues

Whether:

• the parties correctly characterized the disputed information that is at issue in this case;
• any of the disputed information exempt under section 20(1)(b) of the ATIA;
• any of the disputed information exempt under section 20(1)(c) of the ATIA;
• any of the disputed information exempt under section 20(1)(d) of the ATIA; and
• any of the disputed information exempt under section 19 of the ATIA.

Facts

Porter Airlines Inc. (Porter) holds an Air Operator certificate and an Approved Maintenance Organization certificate under the Canadian Aviation Regulations. As a consequence, Porter is responsible for developing a Safety Management System (SMS), a documented process for risk management. As part of its regulatory oversight of airlines, Transport Canada periodically verifies regulatory compliance of an airline's safety protocols to maintain its certifications.

Transport Canada received four access to information requests in relation to Porter and provided notice to Porter about the requests. Porter objected to the release of the relevant information Transport Canada had gathered in response to the request. Transport Canada decided to disclose all the information except for portions that it agreed were exempt from disclosure because of either privacy or confidentiality issues.

Porter applied for judicial review of the four decisions to disclose the information even after redactions and requested an order under section 51 of the ATIA to prohibit this disclosure.

Decision

The application was dismissed.

Reasons

Federal Court of Canada

Citation:

2014 FC 880

Date of decision:

September 16, 2014

Provisions of the Access to Information Act (ATIA):

Paragraph 24(1), sections 41 and 49

• Paragraph 24(1) – Statutory prohibition against disclosure
• Section 41 – Review by Federal Court
• Section 49 – Order of Court where no authorization to refuse disclosure found

Summary

Disclosure of all records to which an applicant is entitled following the initiation of judicial review proceedings does not eliminate the Federal Court's jurisdiction to hear additional matters, such as the proper redaction of records and costs.

Neither an agency relationship with a corporate person nor an unsupported assertion that unredacted records related to that corporate person are required to mount a Tax Court defence can displace the application of s. 241(1) of the Income Tax Act, which was applied to redact corporate persons' private tax information.

Any breaches of procedural fairness caused by the Canadian Revenue Agency's (CRA) inaccurate and delayed processing of the Applicant's access to information request were remedied by the Office of the Information Commissioner (OIC) and the Federal Court's supervisory jurisdiction. The Applicant was, however, entitled to costs on a party-and-party basis because additional documents were only disclosed after judicial review proceedings were commenced.

Issues

• Whether the CRA failed to disclose all of the applicant's information.
• Whether the CRA disclosed taxpayer information related to third party corporate persons to the applicant.
• Whether there was a breach of procedural fairness or fundamental justice.
• Whether the applicant was entitled to costs.

Facts

The Applicant was involved in what the CRA identified as a tax avoidance scheme in which taxpayers purchased units in a corporation performing consulting services for small businesses in exchange for 5% of the businesses' profits and 95% of the businesses' losses (the “Synergy scheme”). In her 2007 tax return, the Applicant claimed business losses acquired through the Synergy scheme that were disallowed by the CRA. Following an audit, the Applicant filed a Notice of Objection to cease a garnishment action by the CRA. All taxes owing were paid.

On August 29, 2012, the Applicant filed an access to information request seeking “CRA Notice of Assessment and/or Reassessment to me for the year 2007, and my Notice of Objection thereto....” Following some initial confusion with respect to whether the application fee had been paid, the CRA sent the Applicant an 88 page package of documents on November 20, 2012 from which a third party's social insurance number had been redacted.

On December 11, 2012, the Applicant made a second request since the initial release package did not include all information related to the garnishment action or the audit of her (the Access to Information and Privacy (ATIP) analyst had been erroneously advised that there had not been an audit). Given the new information provided, the ATIP analyst conducted further consultations and prepared a second release package of an additional 13 pages. This release package was also redacted to remove business numbers and CRA file numbers of third parties.

A complaint was lodged with the Information Commissioner (the OIC) in mid-December and the second release package was provided to the applicant on December 31, 2012.

On January 17, 2013, the Applicant made a third request for further documents. An investigator from the OIC provided the ATIP analyst with a copy of a record that had not been included in either of the CRA's release packages, which prompted the ATIP analyst to take additional steps to obtain further records. The ATIP analyst was then advised by other CRA employees that some of these additional records identified had been destroyed. The OIC investigator was informed accordingly.

The OIC determined the applicant's complaint was well-founded and resolved in a report issued May 30, 2013. On June 26, 2013 the applicant commenced an application under section 41 of the ATIA. After being served with the notice of application, the CRA began to search again for additional documentation, discovered that it had not in fact destroyed the additional records previously identified and released an additional 36 pages of records.

Decision

The application under section 41 of the ATIA was dismissed with party and party costs to the Applicant.

Reasons

Federal Court of Appeal

Citation:

2014 FCA 30

Date of decision:

February 3, 2014

Provisions of the Access to Information Act (ATIA):

Section 41

• Section 41 – Review by Federal Court

Summary

A judicial review application filed before completion of investigation of requester's complaint by the Office of the information Commissioner (OIC) is premature and should be dismissed.

Issues

• Whether the Federal Court erred in dismissing the appellant's application for judicial review as premature.

Facts

The applicant, Mr. Whitty, made an access request to Environment Canada under the Access to Information Act (ATIA). He then made three complaints to the OIC.

The first complaint concerned Environment Canada's assertion of a two hundred day extension of time to respond to his access request. In response to his complaint, the OIC found the extension to be valid and reasonable. Mr. Whitty did not seek judicial review of the OIC decision.

The second complaint was made after Environment Canada failed to respond to the access request within the two hundred day extension of time. Before the OIC could issue its report concerning the complaint, Environment Canada responded to Mr. Whitty's request, redacting many portions of documents claiming exemptions to disclosure under the ATIA. The OIC, viewing this complaint as being one about the failure to produce documents within the two hundred day extension of time, recorded the complaint as “resolved”.

The third complaint concerned the redactions made by Environment Canada. This complaint was made in June 2012. However, on July 23, 2012, just one month after making his third complaint to the OIC, Mr. Whitty applied for judicial review in the Federal Court.

Decision

The appeal was dismissed with costs. The Federal Court noted that after the OIC investigates and reports on Mr. Whitty's third complaint, the Court's ruling regarding this specific case does not prevent the applicant from filing a new application for judicial review in respect of that complaint.

Reasons

The Federal Court relied on section 41 of the ATIA and concluded that the application for judicial review of the third complaint was premature. Section 41 of the ATIA provides that a judicial review can be brought only after the OIC has investigated and reported on the relevant complaint.

At the time the application for review was brought, the OIC had not yet appointed an investigator to examine Environment Canada's assertion of exemptions and redactions included in the documents. Since the OIC had not completed its investigation and had not issued its report, in the Federal Court's view an application for judicial review could not stand. The Federal Court of Appeal could see no grounds to interfere with the Federal Court's interpretation and application of section 41 to the facts of this case.

The decision is available on the Federal Court of Appeal Decisions website at Whitty v. Canada (Attorney General), 2014 FCA 30

Supreme Court of Canada

Citation:

2014 SCC 36

Date of decision:

May 9, 2014

Other legislation:

Section 13 of the Freedom of Information and Protection of Privacy Act (Ontario) (FIPPA)

Relevant provision of the Access to Information Act (ATIA):

Paragraph 21(1)(a)

• Paragraph 21(1)(a) – Advice or recommendations developed by or for a government institution or a minister of the Crown

Summary

Because the terms “advice” and “recommendations” must have distinct meanings, it was unreasonable for the Information and Privacy Commissioner (IPC) to order disclosure of records containing policy options because most of their contents did not reveal a suggested course of action (i.e. a recommendation). This leaves no room for “advice” to have a distinct meaning from “recommendation”.

Policy options prepared in the course of the decision-making process, whether communicated or not, are within the meaning of “advice or recommendations” in subsection 13(1) of the FIPPA and qualify for exemption from disclosure. 

This interpretation accords with the balance struck by the legislature between the goal of preserving an effective and neutral public service capable of producing full, free and frank advice and the goal of providing a meaningful right of access.

Issues

• Whether the interpretation by the IPC of “advice and recommendations” in subsection 13(1) of the FIPPA was reasonable.
• Whether it was reasonable for the IPC to require communication of the records to qualify forthe subsection 13(1) exemption of the FIPPA.
• Whether the institution head's exercise of discretion was lawful.

Facts

John Doe, a tax lawyer, made an access to information request after the Ministry of Finance (“Ministry”) amended a provision of the Ontario Corporations Tax Act to eliminate the loophole created by Ontario's legislation for tax haven corporations. The legislation was partially retroactive. Mr. Doe requested all records or parts of records in the Ministry of Finance and the Ministry of Revenue which consider the issue of retroactivity and the effective date of the amendments to subsections 2(1) and (2) of the Corporations Tax Act, including all records which provide the reasons for deciding not to make subsections 2(1) and (2) retroactive.

The Ministry located six responsive records. One record was disclosed in part and is not in issue. Access was denied to the remaining five records on the basis of the subsection 13(1) exemption (advice to government). The five records in issue were undated drafts of a policy options paper examining the possible effective dates of the amendments, draft option papers that set out options regarding when the amendments could take effect, express statements regarding which options are not recommended, or statements from which the author's recommended option can be easily inferred. 

In 2010, an IPC adjudicator ordered disclosure of the requested records. She concluded that to qualify for the advice or recommendations exemption under section 13(1) of the FIPPA, “the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised.” Further, she found that there was no “clear” evidence that the information in the records was communicated to any other person. Even if the information in the records had been communicated, the adjudicator found that only the portions indicating which option was not preferred would be exempted from disclosure. The remaining information had to be disclosed as it did not reveal a preferred course of action either expressly or implied.

The Ministry then applied for reconsideration of the IPC Order on the basis that it was unable to make full representations at the initial proceeding. The adjudicator denied this application. The Ministry did not seek judicial review of the Reconsideration Order.

In 2011, Ontario's Divisional Court dismissed the Ministry's application for judicial review of the initial IPC Order. The Divisional Court found the adjudicator's conclusion about the application of section 13(1) of the FIPPAto have been reasonable.

In 2012, the Ontario Court of Appeal (“OCA”) found the IPC Order to be unreasonable, allowed the appeal and ordered the matter remitted to the IPC. The OCA found that section 13(1) does not require the Ministry to prove that the document at issue went to the ultimate decision maker (para. 26). The advice or recommendations contained in draft policy papers will invariably form a part of the deliberative process leading to a final decision, and are thus protected by subsection 13(1). Limiting subsection 13(1) to situations where only a single course of action is considered would be unreasonable and would “all but denude subsection 13(1) of any real meaning.” It therefore applies to advice on a range of different options, even if it does not include a specific recommendation on which option to take.

Decision

The appeal was dismissed. The Supreme Court of Canada found that the records qualified for the exemption from disclosure in their entirety. Unlike the OCA, the Supreme Court found no useful purpose would be served by remitting the matter to the IPC for redetermination.

Reasons

Federal Court of Canada

Citation:

2014 FC 218

Date of decision:

March 10, 2014

Provisions of the Privacy Act (PA):

Sections 13, 16, 18 and subparagraph 22(1)(a)(iii)

• Section 13 – Request for access
• Section 16 – Where access is refused
• Section 18 – Exempt banks
• Subparagraph 22(1)(a)(iii) – Law enforcement and investigation, activities suspected of constituting threats to the security of Canada

Summary

The Federal Court held that a government institution acts reasonably when it adopts a uniform policy of neither confirming nor denying the existence of information in an exempt bank.

Issues

Whether the Canadian Security Intelligence Service (CSIS) erred by:

• informing the applicant there was no personal information about him in PIB 005;
• declining to confirm or deny the existence of personal information about the applicant in PIB 045; and
• refusing to disclose personal information about the applicant from PIB 015.

Facts

The applicant made a request under the Privacy Act for CSIS to disclose any personal information about him that was contained in three separate personal information banks (PIBs). The three PIBs were:

• PIB 005 - Security Assessments/Advice;
• PIB 015 - Canadian Service Intelligence Records; and
• PIB 045 - Canadian Security Intelligence Service Investigational Records.

In response to the request, CSIS indicated that there was no personal information regarding the applicant in the first PIB (005). It also indicated that although there was personal information about the applicant in PIB 015, that information was exempt from disclosure under sections 19, 21 and 22 of the Act. Finally, CSIS declined to confirm or deny the existence of personal information in PIB 045 as that was an exempt bank.

The applicant filed a complaint with the Office of the Privacy Commissioner of Canada (OPC) regarding CSIS's response. The OPC found that the complaint was not well-founded. The applicant filed an application for judicial review of CSIS's decision to withhold the personal information from him.

Decision

The Federal Court dismissed the application.

Reasons

When determining the standard of review in such an application, the Court must undertake a 2-step process to examine an institution's decision to not disclose personal information.

Specifically, the Court must:

• determine if the information falls within the description of the exempt information under the available provision of the Act; this step is reviewable on a standard of correctness; and
• if the Court finds the institution was correct to state the information falls in the parameters of step 1, it must then determine whether the institution appropriately exercised its discretion not to disclose the information. The standard of review for this step is reasonableness. If an injury assessment is required as it is for section 21 of the Act, the standard of reasonableness applies.

All parties agreed that section 47 of the Act clearly placed the burden on the institution and, therefore, CSIS was required to provide justification of its decision to not disclose the requested documents.

The Court issued the following ruling for each specific question:

Federal Court of Canada

Citation:

2014 FC 32

Date of decision:

January 13, 2014

Provisions of the Privacy Act (PA):

Subsection 12(1), paragraph 22(1)(b) and sections 26 and 41

• Subsection 12(1) – Right of access
• Paragraph 22(1)(b) – Law enforcement and investigation
• Section 26 – Information about another individual
• Section 41 – Review by Federal Court where access refused

Summary

The Federal Court of Canada held that if an applicant is provided with the requested documents, section 41 of the Privacy Act (the Act) does not allow the Federal Court to provide further remedy.

Issues

Whether:

• The decision of the Department of National Defence (“DND”) is subject to review and if so, what standard of review was to be applied;
• The application was moot because that the documents had been provided to the applicant,
• The Minister's delegate acted unlawfully or unreasonably in either refusing access to the requested personal information or reporting that there was no information related to the request in the National Capital Region office; and
• The Court could grant remedies if the Minister's delegate had acted unlawfully or unreasonably.

Facts

The applicant was a civilian employee of DND whose employment was terminated near the end of his one-year probationary period.

The applicant subsequently filed a number of grievances regarding his termination. To help further these grievances, the applicant filed requests under the Act with DND seeking documents (notes, emails, etc.) related to his dismissal. The documents were located in two places: in Toronto and at DND's headquarters in the National Capital Region.

The Toronto office identified 29 pages of documents, but initially declined to release all of the documents based on paragraph 22(1)(b) of the Act. By contrast, the Office in the National Capital Region informed the applicant that it could not locate any records responsive to the request as the employee who had managed the file had departed, and there were no documents in electronic or paper format.

The applicant filed a complaint with the Office of the Privacy Commissioner of Canada (OPC). After discussions with the OPC, DND released 29 pages of documents located in the Toronto office, with some redactions under paragraph 22(1)(b) and a single redaction under section 26 for personal information of someone other than the applicant.

The OPC later issued a report of findings. Regarding the documents from the Toronto request, the OPC found that the DND had re-examined its original position and subsequently provided the applicant with a package that contains properly-applied exemptions under paragraph 22(1)(b) and section 26 of the Act. Although the complaint had originally been well-founded, the OPC considered the matter to be resolved as additional information had been provided to the applicant.

With respect to the National Capital Region request, the OPC found that complaint to not be well-founded as the requested information did not exist at the time of the request.

The requester filed an application for judicial review under section 41 of the Act.

Decision

The Federal Court dismissed the application.

Reasons

The Court followed previous jurisprudence and determined that the question of whether the information fell within the legal exemptions of paragraph 22(1)(b) or section 26 was reviewable on a standard of correctness. It also determined that the discretionary decision of the Minister's delegate to invoke these exemptions was reviewable on a standard of reasonableness.

At the time of the hearing, DND had already provided the applicant with the information that he originally sought under his section 41 application. The applicant himself conceded that his application was moot, but wanted the Court to clarify this issue for other Canadians who may seek future documents under the Privacy Act.

Although the Court understood the applicant's frustrations, it provided a number of reasons why it could not grant him the modified relief he was seeking. These included:

• The request for declatory relief was a new issue and was not part of the applicant's original application. The Court could not allow the applicant to amend his application at the time of the hearing.
• In the Court's view, the jurisprudence from the Federal Court and Federal Court of Appeal is clear that Court has a narrow jurisdiction when it comes to section 41 applications and the relief it can provide. Once the information was provided to the applicant, there is no other remedy for the Court to provide.

Given that the applicant now had the information and had even conceded his application was moot, the Court ruled DND had established a case for striking the application. It declined to address the additional legal issues requested by the applicant. It also found that although the Applicant had not been malicious or vexatious in filing his application for judicial review, that the Court must assess costs against him to encourage future self-represented applicants to examine the issues and case law before filing section 41 reviews. The Court orders costs against the applicant in the amount of $1,500.

The decision is available on the Federal Court Decisions website at Frezza v. Canada (National Defence), 2014 FC 32

Federal Court of Canada

Citation:

2014 FC 1041

Date of decision:

December 1, 2014

Provisions of the Privacy Act (PA):

Subsection 19(1), paragraph 22(1)(c), subparagraph 22(1)(a)(i) and section 26

• Subsection 19(1) – Personal information obtained in confidence
• Paragraph 22(1)(c) – Law enforcement and investigation, could be injurious to the security of penal institutions
• Subparagraph 22(1)(a)(i) – Law enforcement and investigation, detection, prevention or suppression of crime
• Section 26 – Information about another individual

Summary

Paragraphs 19(1)(c) and (d) of the Privacy Act (the Act) are qualified class-based mandatory exemptions. There is residual discretion to disclose information under subsection 19(2). Seeking consent under this subsection is subject to practical concerns, which may be addressed by protocols that respect the nature of the Act. Safety and security are other factors which may be taken into account in the exercise of the discretion.

Correctional Service Canada (CSC) correctly identified multiple exemptions applying to each document withheld from disclosure (19(1)(c); 19(1)(d); 22(1)(a); 22(1)(c) and 26) and reasonably exercised its discretion to withhold the information.

Issues

• What is the appropriate standard of review?
• Whether the CSC's refusal to disclose information to the Applicant was in accordance with the Act.

Facts

While incarcerated, the Applicant repeatedly requested a transfer to a minimum security institute in Quebec. The Applicant suspected that his transfer requests were denied based on information received from police sources. In order to correct what he believed to be inaccurate information on his file, the Applicant made a request for his personal information under section 12 of the PA. The CSC disclosed some of the information requested by the Applicant. It refused disclosure of most of the information based on the exemptions found in paragraphs 19(1)(c), 19(1)(d), 22(1)(c), subparagraph 22(1)(a)(i) and section 26 of the Act.

The Applicant complained to the Office of the Privacy Commissioner (OPC). The OPC found that information exempted by the CSC under paragraph 22(1)(a) of the Act was prepared by the Preventive Security Division, which is an investigative body for the purposes of the Act. The information is less than 20 years old and was prepared in the course of a lawful investigation. No injury test is necessary under that paragraph. The complaint was disposed of as not well-founded on this basis.

The Applicant filed for judicial review of the CSC's refusal to disclose his personal information.

Decision

The application for judicial review was dismissed. The Respondents correctly identified the relevant exemptions applying to the withheld information. The CSC's exercise of discretion not to disclose that information was reasonable. There was no order as to costs.

Reasons

Federal Court of Canada

Citation:

2014 FC 432

Date of decision:

May 6, 2014

Provisions of the Privacy Act (PA):

Sections 18 and 21, paragraph 22(1)(b), sections 26 and 41

• Section 18 – Exempt banks
• Section 21 – International affairs and defence
• Paragraph 22(1)(b) – Law enforcement and investigation
• Section 26 – Information about another individual
• Section 41 – Review by Federal Court where access refused

Summary

The Federal Court held that the Canadian Security Intelligence Service's (CSIS) uniform policy of refusing to confirm or deny the existence of any information from “exempt banks” under section 18 of the Act was validly adopted.

Issues

Whether CSIS erred in:

• invoking exemptions under section 21, paragraph 22(1)(b) or section 26 of the Act to decline to disclose the applicant's personal information; and
• declining to confirm or deny the existence of the applicant's personal information in PIB 045.

Facts

The applicant made a request to CSIS under the Privacy Act and Access to Information Act to obtain information about him from a number of personal information banks (005, 010, 015 and 035). In response to the request, CSIS indicated that some of the information in PIB 005 had been exempted under sections 21, 26 and paragraph 22(1)(b) of the Act.

The applicant then made a second request to CSIS to obtain information in the same PIBS and new some additional banks (025, 040, 045 and 055). CSIS responded to the request by stating that it could find no new information in a number of the PIBS (005, 015, 025, 035 and 055). It also responded that 2 PIBS (010 and 040) held records that did not contain information regarding identifiable individuals. Finally, CSIS responded that PIB 045 was an exempt bank pursuant to section 18 of the Act.

The second response from CSIS prompted the applicant to complain to the Office of the Privacy Commissioner of Canada (OPC) regarding the decision to withhold personal information in two PIBs (005 and 045). The OPC investigated and found the complaint was not well-founded.

In addition to requesting information from CSIS, the applicant also sent a request to the Canadian Border Services Agency (CBSA) seeking the disclosure of all personal information regarding him in that institution's possession. CBSA responded by releasing nearly 5,000 pages of documents. Within that package, 51 pages contained redactions pursuant to sections 21 and 26, and paragraph 21(1)(b) of the Act. The applicant also complained to the OPC regarding CBSA's response. The OPC also concluded that that complaint was not well-founded.

The applicant brought an application for judicial review under section 41 of the Act.

Decision

The Federal Court dismissed the application.

Reasons

In the ruling, the Court first described the appropriate standard of review. It stated that the Court must follow a 2-step process. More specifically, the Court must:

• determine whether the withheld information actually falls within the description of the exempt information under the applicable provision of the Act. This step is subject to review on the standard of correctness; and
• if the information fits into the description of the exemption claims, the Court must then determine whether the government institution appropriately exercised its discretion to withhold this information. This second step is subject to a standard of reasonableness.

After reviewing the materials presented during the proceedings (confidential affidavits, testimony and submissions), the Court was satisfied that the respondents (CSIS and CBSA) had validly withheld the information. The Court also concluded the respondents also properly assessed possible injury and that their discretion was reasonably exercised as outlined by previous case law. It was also satisfied that the respondents had balanced competing interests when withholding information under 26 of the Act, and that there was no evidence that they had acted in bad faith.

Regarding PIB 045, the Court concluded that CSIS did not commit an error in responding to the applicant. This specific PIB was designated by the Governor in Council as an “exempt bank” under section 18 of the Act. Given this exemption, CSIS adopted a policy of declining to either confirm or deny the existence of any information in the PIB as doing so could jeopardize operations and investigations. CSIS's uniform policy of refusing to confirm or deny the existence of any information in this PIB was confirmed by the Court, and the Court found that the institution's response to the applicant's request was reasonable

The decision is available on the Federal Court Decisions website at Llewellyn v. Canadian Security Intelligence Service, 2014 FC 432.

Supreme Court of Canada

Citation:

2014 SCC 13

Date of decision:

February 7, 2014

Provisions of the Privacy Act (PA):

Paragraph8(2)(a)

• Paragraph 8(2)(a) – What personal information may be disclosed, consistent use

Summary

A federal government employee challenged whether her employer could release her home contact information to her union. The individual was a Rand Formula Employee who, despite choosing not to join a union, was still required to pay union dues. The employee argued that the disclosure of her personal information violated her privacy rights and rights under the Canadian Charter of Rights and Freedoms.

The case involved multiple administrative tribunal proceedings, two rounds of judicial review before the Federal Court of Appeal, and, ultimately, an appeal to the Supreme Court of Canada. In the end, the Supreme Court of Canada ruled that the employer must provide the employee's contact information to the union so the bargaining unit could quickly and effectively contact its members outside of the employer-controlled work environment.

From a privacy perspective, the decision provides specific guidance regarding the application of the “consistent use” provision found in paragraph 8(2)(a) of the Privacy Act (PA). The Supreme Court held that there only needs to be a sufficiently direct connection between the purpose and proposed use of the employee's home contact information.

Issue

Whether an employer is required to provide an employee's personal contact information to a union.

Facts

In 1992, the employee was successful in a legal effort to prevent her employer from providing her home contact information to her union. However, the employee subsequently changed positions within the federal government and fell under the jurisdiction of a different bargaining unit.

When the employee found out that her new employer was providing her home contact information to her union, she filed a request for judicial review of a consent order from the Public Sector Labour Relations Board (Board). The Federal Court of Appeal subsequently concluded that the Board had erred by simply adopting the order without considering the employee's privacy rights.

The case was sent back to the Board for another hearing. The Board inserted new privacy safeguards to address the employee's concerns. However, the employee was still not satisfied and again filed for judicial review. The Federal Court of Appeal found the Board's decision to be reasonable. The employee then appealed the decision to the Supreme Court of Canada.

Decision

The Supreme Court of Canada dismissed the employee's appeal without costs.

Reasons

In its ruling, the Supreme Court emphasized that unions need effective ways to contact their employees outside of work so that labour organizations can discharge their representational duties. The Supreme Court stressed the historical labour relations justifications that require such disclosure to occur. It also stated Rand Formula Employees can chose not to join a union, but cannot opt out of a bargaining unit's representational duties.

The Supreme Court also addressed the individual's arguments that personal information cannot be disclosed due to the PA's provisions. Regarding paragraph 8(2)(a) of the PA, it held that the Board made a “reasonable determination” in concluding that the union's proposed use was consistent with contacting employees, and that the union needs employees' home contact information to carry out its representational obligations quickly and effectively.

The decision also provides specific guidance from the Supreme Court of Canada regarding the interpretation of the consistent use provision in paragraph 8(2)(a) of the PA. The court held that the proposed use does not need to be identical to the purpose for which the information was obtained for that section to apply, but it only needs to be consistent with that purpose.

The decision is available on the Supreme Court of Canada Decisions website at Bernard v. Canada (Attorney General), 2014 SCC 13