Info Source Bulletin 44A - Federal Court Decision Summaries

Federal Court of Canada

Link: 3412229 Canada Inc. v. Canada (Revenue Agency)

Citation: 2020 FC 1156

Date of decision: December 16, 2020

Provisions of the Access to Information Act: Paragraph 13(1)(a), subsection 13(2), paragraphs 16(1)(b) and (c), subsections 19(1) and (2), paragraphs 21(1)(a) and (b), section 23, subsection 24(1), and sections 41, 49 and 53

• Paragraph 13(1)(a) - Information obtained in confidence from a foreign state
• Subsection 13(2) - Information obtained in confidence, where disclosure authorized
• Paragraph 16(1)(b) - Investigative techniques or plans
• Paragraph 16(1)(c) - Law enforcement or lawful investigations
• Subsection 19(1) - Personal information
• Subsection 19(2) - Personal information, where disclosure authorized
• Paragraph 21(1)(a) - Operations of government, advice or recommendations
• Paragraph 21(1)(b) - Operations of government, account of consultations or deliberations
• Section 23 - Solicitor-client privilege
• Subsection 24(1) - Statutory prohibitions against disclosure
• Section 41 - Review by Federal Court
• Section 49 - Order of Court where no authorization to refuse disclosure found
• Section 53 – Costs, proceeding in the Court

Summary

Six different companies sought judicial review of a decision made by the Canada Revenue Agency to exempt certain documents from disclosure following a request for access to information. Throughout this summary, these companies will be referred to as “the applicants.”

The Court concluded that the Canada Revenue Agency correctly interpreted and reasonably exercised its discretion not to disclose records pursuant to sections 13(1)(a), 13(2), 16(1)(b) and (c), 19(1) and (2), 21(1)(a) and (b), 23 and 24(2) of the Access to Information Act (ATIA).

The applicants had received many of the documents they were seeking pursuant to the access to information requests through the court-compelled processes of discovery during the Quebec Proceedings and the Tax Court Proceedings. The Court stated it had no jurisdiction to deal with information already disclosed under the ATIA.

The Court was of the view that the ATIA and the Tax Information Exchange Agreement (TIEA) purposely used broad language when referring to information obtained from a foreign government. Any information obtained by the Canada Revenue Agency pursuant to the TIEA was to be treated as confidential. The Court concluded that the Canada Revenue Agency correctly identified the exemption set out in paragraph 13(1)(a) of the ATIA and reasonably exercised its discretion pursuant to subsection 13(2).

Most of the information exempted under paragraph 16(1)(b) consisted of audit techniques, including a risk assessment tool, used by the Canada Revenue Agency to identify taxpayers or guide its auditors in applying section 94.1 of the Income Tax Act (ITA). The Court agreed with the Canada Revenue Agency that the term “investigation”, in these circumstances, included tax audits. The Court stated that such audits pertain to the administration and enforcement of the ITA.

The Court disagreed with the Canada Revenue Agency’s assertion that evidence of the exercise of discretion concludes the debate with respect to the solicitor-client exemption, but was satisfied the Canada Revenue Agency reasonably exercised that discretion in the circumstances.

The Court stated that despite the many difficulties in this matter, the system worked. The Office of the Information Commissioner (OIC), as the arbiter, was able to perform its role, in large measure due to the tenacity of the applicants’ counsel and the co-operation of the Canada Revenue Agency. The Court concluded that there was no basis to award solicitor-client costs to the applicants.

Issues

• Does the Court have jurisdiction over proceedings as they relate to Court file T-1105-12?
• Is the issue of disclosure of documents provided to the applicants in the litigation matters in   the Quebec Superior Court and the Tax Court of Canada moot?
• Did the Canada Revenue Agency correctly interpret the exemptions and, where it exercised its discretion, did it do so reasonably?
• Should the Court order the Canada Revenue Agency to conduct further searches for records?
• Should the Court order solicitor-client costs?

Facts

Between 2006 and 2012 the Canada Revenue Agency conducted an audit, pursuant to the ITA, of the applicants’ investments in St. Lawrence Trading Inc. (SLT), an offshore investment company.

The applicants filed access to information requests on August 19, 2009, February 18, 2011, June 23, 2011, July 31, 2012, November 29, 2012, and December 11, 2012. The applicants sought information concerning the ongoing audit by the Canada Revenue Agency of their investments in SLT.

On November 16, 2011, the applicants filed complaints with the OIC regarding a collection of documents known as the master file, which concerned the ongoing audit of the applicants as well as several other investors in SLT. The documents were exempted pursuant to paragraph 16(1)(c) of the ATIA due to the ongoing audit. Other exemptions were also applied to those records.

As the audit of the SLT investors came to an end in May 2012, further records were disclosed. The documents from the master file were released, subject to exemptions applied pursuant to sections 16(1)(b), 19(1), 20(1)(b), 21(1)(a), 21(1)(b), 23 and 24(1) of the ATIA. Since the audit had then concluded, the Canada Revenue Agency no longer relied upon the exemption claimed pursuant to paragraph 16(1)(c) of the ATIA.

On May 1, 2012, following its investigation, the OIC issued a report finding that the complaint in relation to the request dated August 19, 2009 was well founded because the Canada Revenue Agency had failed to provide the applicants with all responsive records. However, the OIC found that in view of the supplementary disclosures, the complaint was now resolved and all remaining exemptions had been properly applied.

On July 3, 2013, following its investigation of another complaint, the OIC issued a report finding that the applicants’ complaint in relation to the request dated December 11, 2012 had been well-founded, but that the requestors “have now received all of the information to which [they] are entitled under the Act.” Thus, the complaint was “resolved without the need to make recommendations to the head of the institution”.

Decision

The Court dismissed the applications for judicial review, declined the invitation to direct the Canada Revenue Agency to conduct further investigation of its records and, consequentially, refused to award costs to the applicants.

Reasons

Does the Court have jurisdiction over proceedings as they relate to Court file T-1105-12?

The Court agreed it had no jurisdiction to consider the matters raised in Court file T-1105-12 because the applicants discontinued this file in relation to those access requests on July 31, 2012.

Is the issue of disclosure of documents provided to the applicants in the litigation matters in the Quebec Superior Court and the Tax Court of Canada moot?

The Court indicated that it was unnecessary for it to decide whether records disclosed in the discovery process must also be the subject of a separate disclosure under the ATIA. The Court was satisfied the Canada Revenue Agency addressed its mind to the documents at issue, claimed exemptions under the ATIA and specifically waived those exemptions. The Court concluded it had no jurisdiction to deal with information already disclosed under the ATIA.

Did the Canada Revenue Agency correctly interpret the exemptions and, where it exercised its discretion, did it do so reasonably?

Paragraph 13(1)(a) of the ATIA – Information obtained in confidence from the government of a foreign state

The applicants submitted that the Canada Revenue Agency applied an overly broad reading of the TIEA, which led to a broad application of the exemption. The Canada Revenue Agency argued that the information exempted under paragraph 13(1)(a) of the ATIA consists of records obtained pursuant to the TIEA. Therefore, this was obtained “in confidence” and falls within the exemption at paragraph 13(1)(a) of the ATIA.

The Court agreed that any information the Canada Revenue Agency obtained pursuant to the TIEA is to be treated as confidential. Thus, the Court concluded that the Canada Revenue Agency correctly applied the exemption in paragraph 13(1)(a) of the ATIA, and reasonably exercised its discretion thereunder.

Paragraph 16(1)(b) – Information regarding investigative techniques

Relying upon R v. Jarvis, 2002 SCC 73, the applicants contended there is a stark distinction between an audit and an investigation. An audit’s purpose is to determine tax liability, whereas an investigation’s purpose is to determine penal liability. The Canada Revenue Agency argued that the term “investigation” includes tax audits since they pertain to the administration and enforcement of the ITA. The Canada Revenue Agency submitted those records contained information relating to audit and investigative techniques and the specific ongoing tax audit, both of which fall within the exemption at paragraph 16(1)(b) of the ATIA.

The Court agreed that the term “investigation”, in these circumstances, includes tax audits, and that such audits pertain to the administration and enforcement of the ITA. Furthermore, in this case the exempt information consists of either audit techniques used by the Canada Revenue Agency to identify or guide its auditors in applying section 94.1 of the ITA or a risk assessment tool used to evaluate and manage the risks of an ongoing audit. Such information falls within the two categories identified at paragraph 16(1)(b) of the ATIA. Finally, the Court concluded that the Canada Revenue Agency reasonably exercised its discretion not to disclose the information.

Paragraph 16(1)(c) - Law enforcement or lawful investigations

The Court agreed with Canada Revenue Agency’s argument that any findings regarding the merits of the paragraph 16(1)(c) exemptions are outside the scope of this application for judicial review, since none of the records received by the applicants is now the subject of this exemption.

Subsection 19(1) – Personal Information

The Court found that the Canada Revenue Agency correctly applied the exemption not to disclose the personal information under subsection 19(1) of the ATIA and was reasonable in choosing not to disclose the information under subsection 19(2) of the ATIA.

Paragraphs 21(1)(a) and (b) – Advice and recommendations; consultations and deliberations

The applicants contended that the Canada Revenue Agency used the paragraph 21(1)(b) exemption to withhold information helpful to the applicants and disclose information which bolstered its own reassessment position.

The Court stated that in Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 FC 245 at para. 30, the Court had acknowledged the “importance of governmental openness as a safeguard against the abuse of power, and a necessary condition for democratic accountability”. However, it noted that it is “equally clear that governments must be allowed a measure of confidentiality in the policy-making process”. Finally, the Court concluded that the Canada Revenue Agency reasonably exercised its discretion not to disclose the records.

Section 23 - Solicitor-client privilege

While the Court disagreed with the Canada Revenue Agency’s assertion that evidence of the exercise of discretion concludes the debate with respect to the solicitor-client exemption, the Court was satisfied the Canada Revenue Agency reasonably exercised that discretion in the circumstances.

Subsection 24(1) – Statutory prohibitions against disclosure

The Court stated that subsection 24(1) of the ATIA is a mandatory exemption and noted that the Supreme Court of Canada in Slattery (Trustee of) v. Slattery, [1993] 3 S.C.R. 430 at para. 22, sets out when this information can be disclosed. Finally, the Court agreed with the Canada Revenue Agency stating that there was no basis upon which to interfere with Canada Revenue Agency’s decision regarding this exemption.

Should the Court order the Canada Revenue Agency to conduct further searches for records?

The applicants submitted that the Court should have ordered the Canada Revenue Agency to conduct full and complete searches of all available government records, including archived ones, in order to satisfy the ATIP Requests. The Canada Revenue Agency, relying on Blank v. Canada (Justice), 2016 FCA 189, at para. 36, said that it was not for the Court to order and supervise the gathering of records in the possession of the head of a government institution or review the manner in which government institutions respond to access requests, “except perhaps in the most egregious circumstances of bad faith”.

The Court was satisfied the Canada Revenue Agency had already conducted a thorough search of all records requested. The Court rejected the applicants’ request that the Court ordered further searches by the Canada Revenue Agency.

Should the Court order solicitor-client costs?

The Court stated that the Canada Revenue Agency undoubtedly committed errors in the process of responding to the applicants’ access to information requests. This was evidenced by the decision in the Quebec Superior Court proceedings reported at 2018 QCCS 3381 and by the numerous “additional” disclosures wrought from the Canada Revenue Agency by the OIC. Nevertheless, the system worked. The OIC, as the arbiter, was able to perform its role, in large measure due to the tenacity of the applicants’ counsel and the co-operation of the Canada Revenue Agency. The Court concluded that there was no basis to award solicitor-client costs to the applicants.

Federal Court of Canada

Citation: 2020 FC 1166

Link: Concord Premium Meats Ltd. v. Canada (Food Inspection Agency)

Date of decision: January 22, 2021 (confidential judgment and reasons issued on December 18, 2020)

Provisions of the Access to Information Act: Section 2, 44 and 44.1, Paragraphs 20 (1)(b), 20(1)(c) and 20(1)(d)

• Section 2 – Purpose of Act
• Paragraph 20 (1)(b) – Third party information, financial, commercial, scientific or technical information
• Paragraph 20 (1)(c) – Third party information, disclosure to result in material financial loss or gain
• Paragraph 20 (1)(d) – Third party information, disclosure to interfere with contractual or other negotiations
• Section 44 – Disclosure of third party information, application for review
• Section 44.1 – De novo review

Summary

The Vavilov case has not changed the standard of review for proceedings under section 44 of the Access to Information Act (ATIA); the courts will continue to apply the correctness standard through a de novo consideration of the decision to disclose third party records in the context of a section 44 application.

Concord Premium Meats Ltd. (Concord) did not demonstrate a reasonable expectation of probable harm flowing from the release of the records and therefore the records were not exempted pursuant to paragraph 20(1)(c) of the ATIA.

Concord also did not demonstrate that the information fell within the exemption for confidential information set out in paragraph 20(1)(b) of the ATIA or that it would obstruct or prejudice contractual or other negotiations as set out in paragraph 20(1)(d) of the ATIA.

Issues

• What is the appropriate standard of review?
• Are the records exempt from disclosure pursuant to any of the provisions of subsection 20(1) of the ATIA?

Facts

In 2016, the Canadian Food Inspection Agency (CFIA) conducted a study to examine whether any other meat products were included beyond what was stated on the label. For this study, samplers hired by CFIA collected a total of 100 sausages labeled as containing a single ingredient (e.g. pork, beef, chicken, or turkey) from various retail stores in Montreal, Toronto, and Calgary. Following the conduct of the study, an overall mislabeling rate of 20% was detected. The publication of the findings from the study generated media coverage and, subsequently, the CFIA received an ATIA request for the records relating to the study.

In responding to the request, the CFIA identified 177 pages of records relating to Concord and sent a letter to notify Concord of the request and to seek its input on the preliminary decision to disclose the records. This initial letter was misplaced within Concord and, therefore, no response was provided to the CFIA. The CFIA sent a subsequent letter to Concord indicating that it was going to disclose the records to the requester since no reply was provided to the first letter. The second letter noted that Concord could apply to the Federal Court for judicial review within 20 days of the notice. Upon receipt of the second letter, Concord contacted the CFIA to explain that it had not seen the earlier correspondence, and both parties agreed that Concord would have a further period of time to provide its response.

Concord provided its response to the CFIA and indicated the basis for its concerns about disclosure of some of the records and proposed further redactions to protect certain commercially sensitive information, as well as personal information relating to Concord employees. The CFIA agreed not to disclose some of the information but not all. Concord applied to the Federal Court, under section 44 of the ATIA, for judicial review of the CFIA’s decision to release certain records. Following the hearing, the CFIA undertook to include an explanatory note to the request to explain and clarify aspects of the records in order to mitigate certain harm feared by Concord.

Decision

The Federal Court dismissed Concord’s application for judicial review.

Reasons

What is the appropriate standard of review?

In determining the standard of review, the Federal Court looked at the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. In Vavilov, the Supreme Court held that the starting point is a general presumption that reasonableness is the standard of review that applies in all cases, subject to two exceptions: (1) where the legislature has indicated that it intends a different standard or set of standards to apply; and (2) where the rule of law requires that the standard of correctness be applied. In Vavilov, the Supreme Court’s discussion of when the presumption will be rebutted by a clear expression of legislative intent focused on two situations: (1) when a legislature includes a specific appeal provision in the legislation governing an administrative decision-maker; or (2) when the legislature has prescribed the applicable standard of review (e.g. in British Columbia).

The Federal Court looked at the purposes clause of the ATIA in section 2, which expresses three core principles. One of these principles is that decisions on the disclosure of government information should be reviewed independently of government. The Court also looked at the new amendment to the Act adding section 44.1 of the ATIA, which stated that section 44 is a de novo review. The Federal Court held that the only conclusion that is consistent with the legislative intent, as expressed by the new section 44.1, and that continues to give effect to the purpose of the legislation set out in section 2, is to continue to apply the correctness standard through a de novo consideration of the decision to disclose third party records in the context of a section 44 application.

Therefore, the third party can file new evidence on the issues before the court and little or no deference is due to the decision to disclose made by the head of the government institution. The Federal Court concluded that Vavilov has not changed the approach to section 44 proceedings established by prior jurisprudence and the framework established by the Supreme Court in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3, continues to apply.

Are the records exempt from disclosure pursuant to any of the provisions of subsection 20(1) of the ATIA?

Concord’s primary argument was that the records should be exempt pursuant to paragraph 20(1)(c) of the ATIA because their disclosure could reasonably be expected to cause it financial harm. In the alternative, Concord also put forward an argument that the records should be exempt from disclosure pursuant to paragraphs 20(1)(b) and (d) of the ATIA.

The Federal Court noted that the party opposing the disclosure pursuant to paragraph 20(1)(c) of the ATIA has the onus to demonstrate a “reasonable expectation of probable harm.” The Court described the standard adopted by the Supreme court in Merck Frosst: “while the third party need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the third party must nonetheless do more than show that such harm is simply possible.” Therefore, a third party claiming an exemption under paragraph 20(1)(c) of the ATIA must show that the risk of harm is considerably above a mere possibility, although not having to establish on the balance of probabilities that the harm will in fact occur.

Concord submitted that one of the co-authors of the article published about the study was a CFIA official and that this article contains several incorrect statements. It also argued that the media coverage following this publication of the study in the article had been negative and sensationalist. For example, it pointed to examples where the news stories referred to the mislabeling incident in the context of “food fraud” where producers deliberately substituted a cheaper product to increase their profits. Concord argued that this media coverage following publication of the article about the study provides tangible proof of the likely impact of the release of the disputed records.

The CFIA argued that Concord’s evidence was speculative and it was rooted in a fear of a possible misunderstanding of the records. It argued that the case law is unanimous in finding that this type of evidence does not support non-disclosure. The CFIA pointed to prior case law that has cautioned against applying the financial harm exemption based on the potential for public misunderstanding. The Federal Court held that, while Concord’s evidence in this case went beyond the type of affirmation or speculation that has been found insufficient in previous cases, it had not demonstrated that a reasonable expectation of probable harm flowing from disclosure of the records in dispute. In coming to this conclusion, the Court relied on several factors.

The CFIA had agreed to redact references to Concord’s customers as well as to a highly confidential internal document that is essentially Concord’s blueprint for plant safety. The Federal Court also placed emphasis on the explanatory note that the CFIA had agreed to provide as a clarification to the requester, which made clear that Concord had no association with the identified meat contamination, that the situation was resolved and that the mislabeling incident was not related to food fraud.

The Court also looked at the passage of time since the original study, which was made public in July 2017. The Court noted that the original study was now quite dated, and the media coverage was stale. There is no evidence of ongoing public controversy about production and sale of tainted meat in Canada. Further, the Court noted that several of the media stories that mention the error stated that the problem that caused it has since been corrected. Finally, the Court also noted that the records themselves show that the mistake happened in part because of the way in which Concord’s suppliers packaged and labelled the meat and that this problem has been fixed. The records also showed that Concord developed and implemented a Corrective Action Plan, which was approved by the CFIA, and the problems have now been resolved.

Therefore, considering all these factors in this case, the Court was not persuaded that Concord has demonstrated a real risk of probable harm to either its financial or competitive position in accordance with the test set out in the jurisprudence for paragraph 20(1)(c) of the ATIA.

The Federal Court then looked at Concord’s alternative arguments under paragraphs 20(1)(b) and (d) of the ATIA. The Court concluded that, since the CFIA has already agreed to further redactions and to provide an explanatory note to the requester, most of the information Concord sought to exempt under paragraph 20(1)(b) are no longer an issue. The only remaining issue under paragraphs 20(1)(b) was whether the Corrective Action Plan and the data that shows the deviation between the amount of meat received at its facility and the amount actually produced (“deviation data”) should be exempted. The Court concluded that Concord had not shown, based on the evidence, that records relating to the Corrective Action Plan or deviation data fall within the exemption for confidential information set out in paragraph 20(1)(b). Regarding paragraph 20(1)(d), the Court briefly concluded that Concord’s evidence fell short because it did not demonstrate a real risk of obstruction of actual negotiations arising from the disclosure of the records as they will be redacted and in light of the explanatory note that the CFIA will provide to the requester.

Federal Court of Canada

Citation: 2020 FC 1146

Link: Criminal Trial Lawyers' Association v. Canada (Justice)

Date of decision: December 11, 2020  

Provision of the Access to Information Act: Section 14

• Section 14 - Federal-provincial affairs

Summary

Consensus among the provincial and territorial governments is not a prerequisite to disclosure under section 14 of the Access to Information Act (ATIA). In relying upon the lack of consensus ground, Justice Canada failed to consider the fact that the majority of the provincial and territorial agencies actually agreed to the disclosure of the records.

While it may be presumed that there are, at times “confidential” federal-provincial-territorial (FPT) discussions, in that case, there should be clear evidence in support of this presumption. Here, the majority of the participants, when specifically queried about the disclosure of the records, agreed to have the records disclosed and did not raise the issue of confidentiality.

It was not enough for Justice Canada to state that disclosure would be injurious to FTP relations, without specific evidence in support. That evidence was not in the record.

Issues

• Did Justice Canada reasonably exercise the discretion granted by section 14 of the Act?

Facts

The Criminal Trial Lawyers’ Association (Association) filed a request under the ATIA for access to the records on consultations between the provincial, territorial and federal governments on the topic of credit for time spent in remand. Justice Canada refused to disclose any records by virtue of sections 14 federal-provincial affairs, 14(a) federal-provincial consultations or deliberations of the ATIA.

In the course of considering the Association’s request, two records were identified as being responsive. The first was a 110-page report from 2005 titled: “The Remand Crisis in Adult Corrections in Canada,” which was co-authored by the federal-provincial-territorial (FPT) Remand Working Group. The second was a 46-page report consisting of analysis and recommendations for presentation to the federal, provincial and territorial Justice Ministers in November 2007.

The Association filed a complaint with the Office of the Information Commissioner (OIC) in July 2009. In December 2010, on the recommendation of the OIC, Justice Canada sent letters to the provincial and territorial agencies advising them of the access to information request. In this letter, Justice Canada asked the relevant provincial and territorial agencies if they consented to the disclosure of the records. In these letters, Justice Canada referenced section 13 of the ATIA.

In response, all of the provinces and territories consented to the disclosure of the records with the exception of Manitoba and Saskatchewan. Alberta objected to the disclosure of only one portion of the records.

In February 2015, Justice Canada confirmed to the OIC its position that the release of the records could be injurious to the conduct of FPT affairs and that in the absence of consent from all of the provinces and territories, releasing the records would seriously affect relations.

On April 25, 2018, the OIC again wrote to the ATIP Director asking for further information, stating: “we are not yet convinced that all the remaining information qualifies for exemption pursuant to section 14, and especially paragraph 14(a).”

The ATIP Director maintained the position that the remaining records were exempt from release.

On September 14, 2018, the OIC issued its final report pursuant to subsection 37(2) of the ATIA. The OIC advised the Association that Justice Canada had reasonably exercised their discretion.

Decision

The judicial review was granted and the matter was remitted to Justice Canada for redetermination. The Federal Court found that Justice Canada had failed to reasonably exercise the discretion conferred by section 14 of the Act. The Association was entitled to costs.

Reasons

Did Justice Canada reasonably exercise the discretion granted by section 14 of the Act?

In carrying out the statutory duty, Justice Canada was to determine if “disclosure could reasonably be expected to be injurious to the conduct of” FPT affairs. If so, they must then “decide whether having regard to the significance of the risk and other relevant factors, disclosure should be made or refused” (Attaran v Canada (Minister of Foreign Affairs), 2011 FCA 182 at paragraph 14). Based upon the evidence, the Court was satisfied that Justice Canada understood that they had discretion on whether or not to disclose the records. In 2016, they exercised their discretion and disclosed some of the records. The real issue was if Justice Canada reasonably exercised the discretion afforded by the ATIA. This determination required a consideration of the evidence of the alleged harm.

The Court stated that upon review of the evidence, it was evident that there were two main grounds for Justice Canada’s refusal to disclose the records. The first ground was the lack of a consensus among the provinces and territories regarding the disclosure of the records. The second ground for refusal was the claim that the FPT consultations and deliberations were confidential and therefore disclosure would harm these relations.

On this, Justice Canada had not provided any jurisprudence to support its position that a consensus among the provincial and territorial governments is a prerequisite to disclosure under section 14. Likewise, there is no language in section 14 of the ATIA to support such an interpretation.

To support the lack of consensus as an appropriate ground of refusal, Justice Canada relied upon Do-Ky v. Canada (Minister of Foreign Affairs and International Trade), [1997] 2 FC 907 (Do-Ky) at paragraphs 6-7 where the Court held that it was reasonable to refuse disclosure as being injurious to the conduct of international affairs pursuant to section 15 of the Act in light of the “expressed wishes of a foreign government” against disclosure. The Court declared that unlike in Do-Ky, here there was no “expressed wish” not to disclose the records considering the majority of the provincial and territorial agencies consented to the disclosure.

In relying upon the lack of consensus ground, Justice Canada failed to consider the fact that the majority of the provincial and territorial agencies actually agreed to the disclosure of the records. It appeared that in relying upon this ground, Justice Canada conflated the section 14 refusal with the section 13 criteria without explanation. The Court found that this was not a reasonable approach as it does not bear the hallmarks of a logical and coherent decision-making process.

The second ground of refusal relied upon by Justice Canada was confidentiality. The claim was that FPT consultations in relation to these records were and remained confidential. However, this claim appeared to be primarily asserted by Justice Canada officials. There was no direct evidence from any of the member agencies that stated this as an outright fact or understanding. The strongest evidence in support of this ground came from paragraph 8 of Ms. Angers’ Affidavit where she stated: “… members of CCSO suggested that the release of information which could reveal a particular government’s position on an issue could call into question their continued participation in this sensitive form.”

The Court concluded that the use of the phrase “suggested” was not direct evidence sufficient to support the confidentiality claim. In this case, the majority of the participants, when specifically queried about the disclosure of the records, agreed to have the records disclosed and did not raise the issue of confidentiality. Accordingly, the claim that confidentiality is foundational to FPT relations was not borne out by the evidence in relation to these records.

While one might presume that there are, at times “confidential” FPT discussions, in that case, there should be clear evidence in support of this presumption. The Court in Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427, cautions against drawing inferences except in the clearest of cases. This was not the “clearest of cases”. In any event, even if it is presumed that some of the discussions were confidential, this presumption implies that some of the discussions were not confidential. Justice Canada should have turned its mind to the possibility of severance of the records between “confidential” and “non confidential” information. There was no evidence that severance was seriously considered.

On the issue of harm, Justice Canada had to reconcile how disclosure could “reasonably be expected to be injurious” to FPT relations. In this case, there is a lack of specific evidence to support the harm alleged. It is not enough to state that disclosure would be injurious to FPT relations, without specific evidence in support. The Court concluded that there was no evidence in the record to that effect. The Court stated that it was also unclear from the record whether Justice Canada turned its mind to the question of the potential harm. The decision did not provide sufficient linkage between disclosure sought and the harm alleged.

Finally, the Court noted that the record did not disclose that there was due consideration given to the public’s interest in obtaining the records. Considering the importance of this topic as well as the purpose of the ATIA, the evidence did not disclose a reasonable consideration of these interests. Justice Canada was obligated to balance the alleged “injury” against the purpose of the ATIA. The evidence did not demonstrate that this exercise was undertaken. On the contrary, the evidence pointed to a desire to protect the records from disclosure because of a possible legal challenge.

Federal Court of Canada

Link: The decision has not been made publicly available online.

Citation: None available

Docket: T-1170-19

Date of decision: June 30, 2020 (Interlocutory Decision)

Provisions of the Access to Information Act: Paragraphs 13(1)(a), 13(1)(b), 20(1)(b), 20(1)(c), 20(1)(d), 21(1)(a) and 21(1)(b), sub-section 15(1), sections 41, 47 and 52

• Paragraph 13(1)(a) - Information obtained in confidence from a foreign state
• Paragraph 13(1)(b) - Information obtained in confidence from an international organization
• Subsection 15(1) - International affairs and defence
• Paragraph 20(1)(b) - Third party information, financial, commercial, scientific or technical information
• Paragraph 20(1)(c) - Third party information, disclosure to result in material financial loss or gain
• Paragraph 20(1)(d) - Third party information, disclosure to interfere with contractual or other negotiations
• Paragraph 21(1)(a) – Operations of government, advice or recommendations
• Paragraph 21(1)(b) – Operations of government, account of consultations or deliberations
• Section 41 - Review by Federal Court
• Section 47 - Court to take precautions against disclosing, application for review
• Section 52 - Applications relating to international affairs or defence

Summary

Global Affairs Canada brought a motion for an order of confidentiality. The Prothonotary held that a confidentiality order shall be issued to permit Global Affairs Canada to file a confidential responding record (which would include a Confidential Affidavit) in the underlying section 41 application. Notwithstanding the language in Rule 152(2) of the Federal Courts Rules, the Prothonatory held that Mr. Imai’s counsel shall not have access to the confidential information. In addition, the Prothonotary did not require Global Affairs Canada to provide summaries of the confidential information. However, she ordered Global Affairs Canada to provide Mr. Imai with an annotated version of the final release package indicating the specific exemptions applied to each redaction.

Issues

• Should Global Affairs Canada’s request for a confidentiality order allowing for the Confidential Affidavit and a confidential responding application record to be filed with the Court be granted?
• Should the counsel for Mr. Imai be granted access to the Confidential Affidavit, in whole or in part, upon execution of a written undertaking, or granted access to a summary of the confidential information?

Facts

Mr. Imai made a request for records under the Access to Information Act (ATIA) relating to Canada’s support of Goldcorp Inc.’s operations in Guatemala. He received disclosure packages from Global Affairs Canada to which redactions were made pursuant to various provisions of the ATIA. Mr. Imai then filed complaints with the Office of the Information Commissioner (OIC). The OIC investigated and in its final report concluded that Global Affairs Canada had applied the exemptions under subsections 15(1) and 19(1) and paragraphs 20(1)(b), 20(1)(c), 21(1)(a) and 21(1)(b) in accordance with the ATIA and, where discretionary, Global Affairs Canada had reasonably exercised its discretion. Further, as concurrent exemptions were applied under paragraphs 13(1)(a), 13(1)(b) and 20(1)(d) to some of the same information, the OIC did not find it necessary to determine whether the refusal to disclose the same information could also be justified under these additional sections of the ATIA.

Mr. Imai filed an application under section 41 of the ATIA, seeking a review of the decision by Global Affairs Canada to refuse disclosure of the records requested and an order pursuant to sections 49 and 50 of the ATIA requiring Global Affairs Canada to disclose an unredacted copy of the records. Global Affairs Canada filed a motion for an order of confidentiality, providing the Court with the Confidential Affidavit and Mr. Imai with a public version of the Confidential Affidavit. Mr. Imai did not oppose the issuance of a confidentiality order but argued that his counsel should be granted access to certain information in the Confidential Affidavit or receive summaries of the confidential information.

Decision

A confidentiality order was issued to permit Global Affairs Canada to file a confidential responding record (which would include the Confidential Affidavit) in the underlying application.

Counsel for Mr. Imai should not be granted access to the Confidential Affidavit, in whole or in part, upon execution of a written undertaking, or granted access to a summary of the confidential information.

Reasons

Should Global Affairs Canada’s request for a confidentiality order allowing for the Confidential Affidavit and a confidential responding application record to be filed with the Court be granted?

Subsection 151(1) of the Federal Courts Rules provides that the Court, on motion, may order that material to be filed shall be treated as confidential. Although the parties agreed that a confidentiality order should be issued in order for the Confidential Affidavit to be placed before the Court, as well as to permit Global Affairs Canada to file a confidential responding record that includes a memorandum of fact and law that refers to the content of the Confidential Affidavit, the Prothonotary explained that consent of the parties is not a sufficient basis upon which the Court will grant such relief. Rather, pursuant to subsection 151(2) of the Federal Courts Rules, the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings (see Bah v. Canada (Minister of Citizenship and Immigration), 2014 FC 693).

It is a common practice in applications brought under the ATIA, in which the confidentiality of a document or portions of a document is the very issue before the Court, for confidentiality orders to be issued to protect the integrity of the information pending the final determination of the underlying application (see A v. Canada (Attorney General), 2008 FC 1115 at para 16 and section 47 of the ATIA).

Should the counsel for Mr. Imai be granted access to the Confidential Affidavit, in whole or in part, upon execution of a written undertaking, or granted access to a summary of the confidential information?

Where a confidentiality order is issued, Rule 152 of the Federal Courts Rules is available to the Court to ensure that the proper balance is struck between openness and confidentiality and that one of the mechanisms aimed at ensuring that the proper balance is struck is to permit counsel for the applicant to have access to the information protected by the confidentiality order. Section 47 of the ATIA addresses the precautions to be taken by the Court in handling confidential information on an application under the ATIA.

Relying on the Federal Court of Appeal’s interpretation of section 47 in Hunter v. Canada (Consumer and Corporate Affairs), [1991] 3 FC 186 (Hunter), the Prothonotary explained that in determining whether an applicant’s counsel should be permitted access to the confidential information at issue in a section 41 application, the general question to ask is what information is needed by counsel for the applicant to permit an intelligent debate on the question of its disclosure. Specifically, does counsel for the applicant need the unredacted records themselves or would a summary or general description of the nature of the confidential information be sufficient? The burden lies on the applicant to provide an explanation as to why his counsel needs the confidential information to make informed submissions, see Steinhoff v. Canada (Minister of Communications), [1996] FCJ No 756 (FC) (Steinhoff) at para 8.

In Hunter the Court held that the ATIA does not go so far as to grant systematic access to counsel and that disclosure to counsel, even on an undertaking of confidentiality, is not permitted in every case. Counsel should be denied access where the application deals with international affairs, defence and subversive activities where the head of the government institution can invoke section 52 of the ATIA. Moreover, in Steinhoff, this Court held that the necessary implication of section 52 is that the information for which an exemption is claimed pursuant to section 13 or 15 of the ATIA is not to be disclosed to counsel for an applicant for the purpose of argument.

The Prothonotary rejected Global Affairs Canada’s argument that Steinhoff precludes the Court from ordering that counsel for Mr. Imai be provided with a summary or general description of the nature of the confidential information. She notes that although the Court in Steinhoff did not order an overview to be provided in relation to the section 13 and 15 exemptions, it did not provide reasons for this, nor did it expressly state that the necessary implication of section 52 of the ATIA includes not only a bar on the disclosure of the records, but also a bar on the disclosure of an overview of the records. She also noted that in this instance, the public version of the Confidential Affidavit includes a general description of the records for which section 13 and 15 exemptions were claimed.

The Prothonotary then examined the issue in relation to the various exemptions.

Section 13(1) – Information obtained in confidence

Mr. Imai had been advised that the protected information was obtained by the Canadian Embassy from the Government of Guatemala and the Inter-American Commission on Human Rights. Moreover, based on the unredacted information in the section 13 documents, the Prothonotary was satisfied that it was possible to ascertain the context in which the information was obtained. Accordingly, she found that Mr. Imai had already been provided with a sufficient summary of these records to allow for effective representations at the hearing.

Section 15 - International affairs and defence

With respect to the section 15 records, as set out in Steinhoff, section 52 of the ATIA precludes their disclosure to counsel for Mr. Imai at this stage of the proceeding. While Mr. Imai asserted that Global Affairs Canada did not properly raise section 52 in its notice of motion and initial written representations, the Court is nonetheless obligated to comply with the existing legislative regime and applicable case law. Moreover, the Prothonotary rejected Mr. Imai’s argument that Kitson v. Canada (Minister of National Defence), 2009 FC 1000 alters the Court’s finding in Steinhoff regarding the statutory bar on disclosure of the unredacted records at this stage of the proceeding as found in section 52 of the ATIA. Accordingly, Mr. Imai’s request that his counsel be provided with a copy of the unredacted section 15 records was denied.

The Prothonotary then considered whether, in the alternative, counsel for Mr. Imai should be provided with a summary of the section 15 records. She found that the information disclosed in the public version of the Confidential Affidavit, taken together with the contextual information already available to Mr. Imai in the redacted section 15 records, was sufficient to enable meaningful representations at the hearing of the application.

Paragraph 20(1)(c) - Third party information, disclosure to result in material financial loss or gain

With respect to Mr. Imai’s request that his counsel be provided with the unredacted paragraph 20(1)(c) records, the Prothonotary was not satisfied that he had demonstrated that access to the requested records was needed in order for his counsel to make meaningful submissions at the hearing of the application. Mr. Imai had already been provided, by way of the public version of the Confidential Affidavit, with a sufficient summary of the records. He had not demonstrated how this information, taken together with the contextual information provided in the redacted records, was insufficient for his counsel to make effective representations at the hearing on the merits. The Protonotary declined to order production of the confidential information to his counsel. With respect to the Mr. Imai’s alternative request for a summary, she noted that he had not provided the Court with any particulars of what additional information could be provided to his counsel. In light of the information already disclosed, Mr. Imai had already been provided with a sufficient summary of these records.

Section 21 - Operations of government

With respect to Mr. Imai’s request that his counsel be provided with the unredacted section 21 records, no specific reason had been given by him in his written representations as to why his counsel needed access to the unredacted records in order to challenge the exemptions made and to challenge whether Global Affairs Canada properly exercised its discretion, nor was a rationale provided for such a need at the hearing. The Prothonotary was not satisfied that Mr. Imai had demonstrated, taking into account the information disclosed in the public version of the Confidential Affidavit, together with the contextual information set out in the redacted records themselves, that the information that he had already received regarding the section 21 exemptions was insufficient for him to make effective representations at the hearing of the application.

With respect to Mr. Imai’s alternative request for a summary, the Prothonotary found that he had not provided the Court with any particulars of what additional information could be provided to his counsel. She held that, in light of the information already disclosed, he had already been provided with a sufficient summary of these records.

Unredacted Reasons for Redactions

Mr. Imai also requested an unredacted version of the reasons set out in the Confidential Affidavit for redactions made in relation to the sections 13, 15, 20 and 21 exemptions based on the rationale that his counsel needs to see the reasons in order to make informed submissions about whether the exemptions apply. The Prothonotary determined that disclosure of the unredacted reasons for redaction would disclose portions of the protected information at issue on this application or the basis for Global Affairs Canada’s confidentiality claim. She declined to order production of the unredacted reasons for redaction.

Annotated version of the final release package

The Prothonotary agreed with a concern raised by Mr. Imai about multiple exemptions applied on various pages of the release package. While it is not uncommon in section 41 applications for protected information to be subject to more than one exemption, an applicant should be provided with clarity as to the exemptions claimed in relation to each redaction made, as such clarity may assist in arguing the application. In any event, the Court will require such clarity from a respondent in order to assess whether the exemptions claimed by the respondent were properly applied and any discretion reasonably exercised. As such, the Prothonotary ordered that Global Affairs Canada provide to Mr. Imai an annotated version of the final release package indicating the specific exemptions applied to each redaction.

Federal Court of Canada

Citation: 2020 FC 911

Link: Azubuike v. Canada (Attorney General)

Date of decision: September 21, 2020

Provisions of the Privacy Act: Sections 3 and 7 and paragraph 8(2)(a)

• Section 3 – Definition – Personal Information
• Section 7 – Use of personal information
• Paragraph 8(2)(a) – Disclosure of personal information for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose

Summary

The Office of the Privacy Commissioner (OPC) was right to determine in its Findings Report that Mr. Azubuike’s Privacy Act complaint was not well-founded.

Mr. Azubuike had not established that the investigation was conducted in a procedurally unfair manner or that it was based on errors of fact or law. The Court stated that the OPC’s conclusion in its Findings Report was transparent, intelligible and was justified in relation to the relevant factual and legal constraints that bear on that decision. Accordingly, it was reasonable.

A judicial review of an OPC Findings Report is limited in scope. It cannot be used as a collateral attack on prior immigration decisions or as a platform to launch a constitutional challenge of the refugee and immigration regime.

Issues

• Was the OPC investigation conducted in a procedurally fair manner and, based on that investigation, was the determination that the complaint was not well founded reasonable?

Facts

In 2012, Mr. Azubuike filed a complaint with the Office of the Privacy Commissioner (OPC), alleging that the Canada Border Services Agency (CBSA) disclosed his personal information without his authorization or consent. He submitted that CBSA had contravened the Privacy Act when it contacted the International Criminal Police Organization (Interpol), without Azubuike’s consent or authorization, to seek verification of the authenticity of a court judgement that Mr. Azubuike had submitted in support of his application for refugee status.

The OPC investigated the complaint and, in its Findings Report, found that Mr. Azubuike’s complaint was not well-founded.

Mr. Azubuike sought judicial review of the OPC Findings Report.

Decision

The Court found that the determination of the OPC Findings Report was transparent, intelligible and justified in relation to the relevant factual and legal constraints that bear on that decision. Accordingly, it was reasonable.

The application for judicial review was dismissed. The Attorney General was entitled to its costs in the all-inclusive, lump sum amount of $1000.

Reasons

Scope of judicial review of OPC reports

The Court stated that the jurisprudence is clear that the validity of the Privacy Commissioner’s recommendations is not subject to the Court’s powers of review. 

However, an OPC investigation and report can be subject to judicial review if the investigation was procedurally unfair or if the report had “material omissions, reached unreasonable conclusions, contained unsustainable inferences, misconstrued the factual and legal context or evinced a bias or pre-disposition on the part of the investigator” (see Oleinik v. Canada (Privacy Commissioner), 2011 FC 1266).

Was the OPC investigation conducted in a procedurally fair manner and, based on that investigation, was the determination that the complaint was not well founded reasonable?

While Mr. Azubuike disagreed with the OPC’s Findings Report, his written submissions did not clearly or persuasively engage with the procedural fairness of the investigative process or why he was of the view that the Report’s determination that his complaint was not well-founded was unreasonable. Mr. Azubuike’s written submissions did not suggest that the OPC overlooked material evidence or made other reviewable errors.

Mr. Azubuike pointed to no evidence that would meet the test for bias, being whether an informed person, viewing the matter realistically, being fully informed of all of the facts and having thought the matter through, would conclude that the decision maker was biased. Mr. Azubuike had not established that the investigation process or the investigation was biased or otherwise conducted in a procedurally unfair manner.

Mr. Azubuike asserted that the OPC had failed to consider all of the evidence that he submitted and erred in its evaluation of the evidence. In this regard, the issue before the OPC was whether CBSA had breached section 8 of the Privacy Act by the disclosure of personal information, without consent, to the Ghana High Commission, which then disclosed it to Interpol, for the purpose of requesting assistance in verification of the authenticity of the Nigerian Judgement.

Because Mr. Azubuike had not established that the investigation was conducted in a procedurally unfair manner or that it was based on errors of fact or law, his application could not succeed. Moreover, the determination of the OPC Findings Report that Mr. Azubuike’s Privacy Act complaint was not well-founded was transparent, intelligible and was justified in relation to the relevant factual and legal constraints that bear on that decision. Accordingly, it was reasonable.

Mr. Azubuike could not seek judicial review of the OPC’s non-binding Findings Report to challenge his prior negative immigration decisions. The record established that Mr. Azubuike had employed every opportunity to challenge those decisions and had not been successful.

Therefore, this application for judicial review of the OPC Findings Report was of limited scope. It could not be utilized as a collateral attack on prior immigration decisions or as a platform to launch a constitutional challenge of the refugee and immigration regime.

Federal Court of Canada

Citation: 2020 FC 271

Link: Cumming v. Canada (Royal Mounted Police)

Date of decision: February 20, 2020

Provisions of the Privacy Act: Subsections 12(1) and 16(13) and sections 41, 48 and 49

• Subsection 12(1) – Right of access
• Subsection 16(3) – Deemed refusal to give access
• Section 41 – Review by Federal Court where access refused
• Section 48 – Order of Court where no authorization to refuse disclosure found
• Section 49 – Order of Court where reasonable grounds of injury not found

Summary

The application is dismissed because it was moot. When considering an application under section 41 of the Privacy Act (PA), the Court's authority is limited to the terms and context of the Privacy Commissioner’s recommendation. Here, the recommendation relates to a deemed refusal resulting from the RCMP’s failure to respond to Mr. Cumming’s request, which was already remedied.

The application was premature for Mr. Cumming to seek relief from the Court regarding inadequacy of information. He had not yet made a complaint with the Privacy Commissioner on that point and there had not been an investigation yet.

Issues

• Is the application moot?
• Is the relief sought and arising from the RCMP response premature?

Facts

On March 15, 2018, the applicant, Mr. Cumming, submitted a request to the RCMP seeking access to his personal information under subsection 12(1) of the PA. By letter dated March 16, 2018, the RCMP confirmed receipt of the request, advising Mr. Cumming that it was undertaking the necessary search of its records and that the RCMP would require an additional 30 days over and above the prescribed 30-day time period to respond to the request. Mr. Cumming received no further response. In July 2018, he initiated a complaint with the Privacy Commissioner.

In May 2019, more than a year after Mr. Cumming’s request, and well past the maximum 60-day time limit the PA prescribes for a response, the Privacy Commissioner wrote separately to Mr. Cumming and to the RCMP Commissioner. The Privacy Commissioner concluded that Mr. Cumming’s complaint was “well-founded” and that the RCMP’s failure to respond to Mr. Cumming’s request was a deemed refusal under subsection 16(3) of the PA. The Privacy Commissioner also informed Mr. Cumming of his right to apply to this Court for a review of the RCMP’s deemed refusal. Mr. Cumming filed a Notice of Application seeking an Order requiring the RCMP to release the requested personal information.

In July 2019, the RCMP responded to Mr. Cumming’s request for personal information advising him that a search of records had been conducted, that all of the documents to which Mr. Cumming was entitled were enclosed, and that some information was exempt from disclosure pursuant to various provisions of the PA. Despite having been provided with some information, Mr. Cumming pursued the application, arguing that the disclosure was incomplete.

Decision

The style of cause was amended striking the RCMP as the respondent and identifying the Attorney General of Canada as the respondent.

The application was moot and therefore, dismissed.

The relief sought was premature because the applicant had not submitted a complaint regarding the adequacy of the information provided and there has been no investigation by the Privacy Commissioner on this issue.

The applicant was awarded costs in the fixed amount of $200.

Reasons

Preliminary Matter – Amendment of the Style of Cause

The applicant named the Royal Canadian Mounted Police as the respondent. Here, the appropriate respondent is the Attorney General of Canada, thus the style of cause was amended to substitute the RCMP for the Attorney General of Canada as the respondent.

The application is moot

The jurisprudence shows that the Court’s authority when considering a section 41 application is limited to making a disclosure order. Justice Gleeson concluded that in this case, disclosure had occurred and the Court was not in a position to grant additional relief. Even if the additional relief were available to Mr. Cumming, his failure to seek that relief in his original application or by way of amendment presented an obstacle to it being granted.

Despite having obtained disclosure, Mr. Cumming took issue with the adequacy of that disclosure. Justice Gleeson found that the RCMP’s act of granting what Mr. Cumming viewed as inadequate disclosure rendered the matter moot. In Sheldon v. Canada (Health), 2015 FC 1385, it was held that it is not open to the Court in the context of an application under the Access to Information Act brought on the basis of a deemed refusal to review the nature and content of any subsequent response, however imperfect and incomplete that response may be. Justice Gleeson stated that the interpretation of a provision in the ATIA is instructive when considering a parallel provision in the PA. Following the decision in Sheldon, Justice Gleeson concluded that an application pursuant to section 41 of the PA requires that a complaint first be made and investigated by the Privacy Commissioner. It was concluded that the relief the Court may grant is limited by the terms and context of the Privacy Commissioner’s recommendation and to hold otherwise would usurp the Privacy Commissioner’s role in the complaint scheme and deny the Court the benefit of its expertise in such applications. As in Sheldon, the Privacy Commissioner’s recommendation related to a deemed refusal resulting from the RCMP’s failure to provide any response to Mr. Cumming’s request for personal information. That refusal to respond was remedied. Justice Gleeson held that the remedy this Court might have awarded has been provided to the applicant as it related to the deemed refusal, and there was nothing to indicate that the Court should have exercised its discretion to hear the matter in any event.

Is the application premature?

Mr. Cumming had not initiated a complaint with the Privacy Commissioner in respect of his concerns with the partial disclosure he had received. Not having submitted a complaint regarding the adequacy of the information provided and in the absence of an investigation by the Privacy Commissioner, it was premature for Mr. Cumming to seek relief from the Court in respect of these issues.

Costs

The applicant was awarded costs in the fixed amount of $200. The RCMP’s handling of Mr. Cumming’s complaint was relevant when considering costs. In this regard, the Judge noted that the RCMP failed to provide Mr. Cumming with any update about or explanation for the delay prior to his complaint or following the conclusion of the investigation.

Federal Court of Canada

Citation: 2020 FC 1100

Link: McCarthy v. Canada (Attorney General)

Date of decision: November 30, 2020

Provisions of the Privacy Act: Section 3 and Paragraphs 8(2)(c) and 8(2)(d)

• Section 3 – Interpretation – Definition - Personal Information
• Paragraph 8(2)(c) – Disclosure of personal information to comply with a subpoena, a warrant, a court order or a production order
• Paragraph 8(2)(d) – Disclosure of personal information to the Attorney General of Canada for use in legal proceedings

Summary

The Court cannot simply rely on a general assumption that the disclosure of personal information presents some degree of harm or risk to the important right to privacy to grant a confidentiality order. The Sierra Club test requires that a confidentiality order be necessary to prevent a “serious risk” to the interest, and that the salutary effects of preventing such risk outweigh the deleterious effects on the open court principle. These conclusions must be grounded in the evidence.

No restriction on the open court principle should be taken lightly, given its fundamental role in the Canadian judicial system. Nor should the restriction on the right to freedom of expression that arises any time the sealing of Court records may impact the ability to report on a matter. The deleterious effects on the open court principle and freedom of expression that would result from either sealing or redacting the single exhibit at issue, which should not have been filed in the first place and which had no bearing on the Court’s decision to strike the application, are fairly modest.

The Attorney General had not demonstrated, through the evidence filed on the motion, that maintaining the open court principle, and thereby permitting the disclosure of the information in question through access to the Court file, would cause a “serious risk” to the relevant privacy rights, or that the salutary effects of preventing that risk would outweigh the deleterious effects of any restriction on the open Court principle.

Issue

• Whether the Court should issue a confidentiality order pursuant to Rule 151 of the Federal Courts Rules, sealing Exhibit Z so as to keep confidential the identity of the other CBSA employee.

Facts

This was an application for judicial review seeking to quash a Notice of Pre-Disciplinary Hearing [Notice] issued by the President of the Canada Border Services Agency (CBSA), in which the President accepted findings of an investigation into allegations of wrongdoing in the workplace. The investigation was triggered by disclosures made under the Public Servants Disclosure Protection Act, SC 2005, c 46 (PSDPA).

The applicant filed an affidavit that attached numerous documents. One of these documents, Exhibit Z to the affidavit, was an email the applicant sent to the President of the CBSA prior to the Notice, which purported to compare the applicant’s case to that of another CBSA employee, and sought an explanation for a perceived difference in handling. The other CBSA employee was named, and the file number and certain information regarding the allegations against the other employee were included.

The Court gave the parties an opportunity to file supplementary submissions on the Federal Court of Appeal’s recent decision in Desjardins v Canada (Attorney General), 2020 FCA 123, since the Attorney General had relied on the decision of the Federal Court in that case, which was overturned by the Court of Appeal. The parties each filed supplementary submissions on Desjardins and maintained their respective positions on the requested confidentiality order.

Decision

The Federal Court dismissed the AGC’s application for a confidentiality order to seal or redact Exhibit Z to the affidavit of Kenneth McCarthy sworn February 12, 2020.

There was no order as to costs.

Reasons

Should the Court issue a confidentiality order pursuant to Rule 151 of the Federal Courts Rules, sealing Exhibit Z so as to keep confidential the identity of the other CBSA employee?

The Court stated that in Desjardins, the Federal Court of Appeal had recently considered the principles applicable to confidentiality orders in a case that, like this one, was brought against the background of disclosures of alleged wrongdoing made under the PSDPA of alleged wrongdoing. The information at issue in that case was the names of witnesses and disclosing parties, and witness interviews and notes arising from the investigation.

In the Desjardins decision at paragraph 55, the Court cited and reaffirmed the test for a confidentiality order established by Justice Iacobucci in Sierra Club at paragraph 53:

A confidentiality order under Rule 151 should only be granted when:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

The Court stated it must consider the relevant facts and circumstances, the objectives and provisions of any relevant legislative scheme, and the public interest. It added that it must also consider the relevant constitutional rights, which in this case were the right to privacy, the right to freedom of expression, and the open court principle.

The Court was satisfied that the information relating to the CBSA employee, which identified them by name and included details relating to allegations of workplace wrongdoing made against them, fell within the definition of personal information in section 3 of the Privacy Act. The applicant argued that the Privacy Act had no application since he was not a “government institution”. The Court stated it had difficulty with this assertion given that the information in question came into the applicant’s possession while he was a federal government employee, and in his capacity as an employee. The Court added it did not believe the application of the Privacy Act could be avoided simply through the assertion that the applicant is not himself a government institution, or that he subsequently retired from the federal public service.

The Court affirmed that the issue was not whether the applicant had breached the Privacy Act, but rather, whether now that the email had been filed, a confidentiality order ought to be issued to seal that document. The Court stated that the Sierra Club test must be met, with consideration given to all relevant circumstances.

With respect to the first step of the Sierra Club, the Court was satisfied that the protection of privacy could constitute an “important interest” for the purposes of the Sierra Club test. The Court stated that one could reasonably assume that the disclosure of personal information presented at least some degree of harm or risk to the important right to privacy. However, the Court explained that Desjardins teaches that a confidentiality order is necessary to prevent a “serious risk” to the interest and that such conclusions must be grounded in the evidence.

Finally, the Court concluded that AGC had not demonstrated that maintaining the open court principle would cause a “serious risk” to the relevant privacy rights, or that the salutary effects of preventing that risk would have outweighed the deleterious effects of any restriction on the open Court principle.

The Court stated it was certainly sympathetic to the AGC’s concerns regarding the exposure of personal employment details of an individual with no direct relationship with this application through the filing of a document that need not and should have been filed. However, the Court added that the open court principle is a fundamental one, and while it recognizes exceptions, the grounds for those exceptions must be established on a convincing evidentiary record, which it considered it did not have before them on this motion. Therefore, the motion was dismissed.