Info Source Bulletin 37A - Federal Court Decision Summaries

Summary

Section 26 of the PA does not allow the applicant to have access to other individuals' personal information.

Issues

• Did the respondent correctly invoke section 26 of the PA?

Facts

The applicant submitted a request for access to her employer, the Canada Revenue Agency (CRA), for, among other things, a copy of documents and information relating to her tax file and investigation reports. The CRA disclosed to the applicant documents it had identified and applied the exceptions set out in sections 25 and 26 of the PA by redacting part of those documents.

The applicant filed a complaint to the Office of the Privacy Commissioner of Canada (OPC). Following its investigation, the OPC concluded that the complaint was not well founded. The applicant applied for a judicial review of the CRA's refusal to disclose the redacted information, under section 41 of the PA.

Prothonotary Morneau granted the respondent permission to file a confidential affidavit and a memorandum of fact and law, also confidential, by applying section 46 of the PA.

Decision

• The application for judicial review under section 41 of the PA was dismissed, without costs.

Reasons

• In this application for judicial review, the respondent no longer relied on section 25 of the PA. Furthermore, on the morning of the hearing, the respondent removed the redactions on four of the requested pages where section 26 had previously been invoked because the information contained therein was now in the public domain.
• The Court noted that the prothonotary's order allows it to review the unredacted documents without the applicant present and that the applicant does not have access to the redactions or to the respondent's specific arguments presented in support of the redactions.
• The Court reminded the applicant that the PA specifically provides that the right to be given access on request applies only to personal information about the applicant.
• After having examined the pages identified by the CRA, the Court found that the redactions were authorized under section 26 of the PA and that the information that was not disclosed in no way concerns the applicant. The Court noted that the exceptions in section 8 of the PA do not apply in this case.

The decision is available on the Federal Court Decisions website at: Grant v. Canada (Attorney General), 2013 FC 1234.

Summary

• Refusal to release intercepted telephone communications by wife, stepson and others correctly exempted under section 26 of the PA.
• Ensuring compliance with Court ordered interceptions as condition of release constitute an investigation under paragraph 22(1)(b) of the PA.
• Exercise of discretion inferred from surrounding circumstances.
• Interception of the solicitor-client communications constituted a prima facie actionable misconduct and the wrongdoing cannot be exempted under section 26 and paragraph 22(1)(b) of the PA.

Issues

• Were the intercepted communications validly exempted under section 26 of the PA?
• Were the intercepted communications validly exempted under paragraph 22(1)(b) of the PA?
• Was the discretion to exempt the information properly exercised?
• Do the new grounds for refusal, namely, sections 21 and subparagraph 22(1)(a)(iii)of the PA constitute a valid basis for the refusal to disclose the intercepted conversations?

Facts

The application was for judicial review under section 41 of the PA of a decision of the Canada Border Services Agency (CBSA), denying the applicant’s request for the release and communication of telephone conversations intercepted following his release from detention based on the exemptions in paragraph 22(1)(b) and section 26 of the PA.

On February 15, 2007, the applicant was subject to a security certificate under the Immigration and Refugee Protection Act. He was released from detention provided that he and other users of the house telephone, namely his wife and stepson, gave consent to the interception of all of their telephone and written communications. The applicant as well as the other adult members of his household consented to these interceptions.

The applicant requested under the PA that CBSA give him access to the following records, from April 11, 2007 to May 12, 2008: all intercepted conversations; intercepted mail; and all recordings including medical records, surveillance reports, incidents, memos of CBSA.

The CBSA disclosed most of the personal information requested but denied the applicant’s request for the release and communication of intercepted conversations from April 11, 2007 to May 12, 2008 based on section 26 and paragraph 22(1)(b) of the PA. Five solicitor-client intercepted communications were also at issue, two of which had no audio, while the remaining three had audio that lasted less than two minutes each.

The applicant filed a complaint with the Office of the Privacy Commissioner of Canada (OPC) contesting the CBSA’s refusal to provide the intercepted communications. The OPC found that the complaint was not well founded and that the exemptions were properly applied.

The applicant applied for a judicial review of the CBSA’s refusal to disclose the intercepted communications. The action was subject to several motions but, in particular, CBSA filed a motion before the hearing to add section 21 and subparagraph 22(1)(a)(iii) of the PA as new grounds for refusal to disclose the personal information for reasons of national security. The Court allowed the new grounds on condition that they could not be relied upon unless the initial grounds for exemptions, namely section 26 and paragraph 22(1)(b), were found to have been incorrectly applied.

Decision

The application for judicial review was granted in part. Most of the intercepted conversations were validly withheld from disclosure pursuant to section 26 and paragraph 22(1)(b) of the PA and the exercise of discretion was done reasonably.  As for the five intercepted conversations remaining involving the applicant and his counsel, they are not subject to any exemptions because they are communications which are protected by the solicitor-client privilege and no exemptions can justify their non-disclosure. Therefore, there was no need to address the fourth issue.

Reasons

Were the intercepted communications validly exempted under section 26 of the PA?

The Court noted that there were three types of intercepted communications at issue:

• Telephone conversations involving the wife of the applicant and her son with unknown persons. The wife and her son did not consent to the release of the information.
• Telephone conversations involving the applicant with unknown persons who did not consent to the release of their conversations with the applicant.
• Five telephone conversations involving the applicant with his lawyers, conversations which were found to be for the time period in question protected by the solicitor-client privilege by the certificate judge.

The Court held that the wife’s and stepson’s conversations with others constituted personal information and are subject to the exemption in section 26 of the PA (information about another individual).

The interceptions involving the applicant with third parties were held to be the personal information of the applicant and, in some respects, of the third parties. The Court considered whether the information could be provided to the applicant by removing the names and phone numbers of the third parties but the Court decided against this approach because it could not guarantee that the third parties could not be indirectly identified depending on the use made by the applicant.

Previous Court decisions had found that the intercepted calls involving counsel with the applicant are protected by the solicitor-client privilege and that listening to them, even partially, constitute prima facie an actionable misconduct. The Court therefore decided that the release of these conversations could not be exempt from disclosure under section 26 of the PA.

Were the intercepted communications validly exempted under section 22(1)(b) of the PA?

The Court held that section 22(3) of the PA defines “investigation” broadly and would include ongoing investigations by the Security Intelligence Review Committee (SIRC) and the CBSA to ensure the terms and conditions of release, which included the Court ordered intercepts issued by the certificate judge, were complied with. The intercepted calls are part of an investigation covered by the exception of the law enforcement and investigation provision contained in paragraph 22(1)(b) of the PA.

However, the Court found that interceptions involving communications which are protected by the solicitor-client privilege cannot be exempted under section 22(1)(b) of the PAbecause they should not have been intercepted and listened to in the first place.

Was the discretion properly exercised?

The Court noted that section 26 and paragraph 22(1)(b) exemptions are discretionary. He relied on Leahy v Canada (Minister of Citizenship and Immigration), 2012 FCA 227 which indicated that the exercise of discretion must at a minimum show that the decision-maker was aware of the discretion to be exercised.  

The CBSA did not provide specific evidence that the discretion was exercised where section 26 of the PA was applied. However, the record showed that the CBSA had disclosed a substantial amount of personal information to the applicant and, in those cases, had assessed the injury or damage that would result if some information was disclosed. In the Court’s view, this was evidence CBSA was aware of the discretion to be exercised and determined that the disclosure was not in the public interest under para 8(2)(m)of the PA.

The decision is available on the Federal Court Decisions website at: Mahjoub v. Canada (Public Safety and Emergency Preparedness), 2013 FC 1282.

Summary

Evidence regarding the commercial, scientific or technical value of information should be provided by a disinterested person who may have expertise in such matters.

Issue

• Whether information provided by a corporation falls within the exemptions provided in paras. 20(1)(b) and (c) of the ATIA?

Facts

Novartis develops health products for a range of medical conditions and is therefore subject to certain requirements set out in the Food and Drug Regulations, including the requirement to prepare an annual summary report of all information relating to adverse drug reactions over the previous 12 months. The portion written by a trained representative on adverse drug reactions is called the “Narrative”.

Health Canada notified Novartis that a request for the disclosure of information concerning adverse reactions had been made by a third party and that it intended to release the Narrative. Novartis objected to such release and made an application under section 44 of the ATIA for a review of the decision by the Federal Court, asking the Court to order Health Canada not to disclose the Narrative.

Decision

The application was dismissed.

Reasons

Summary

• The case concerns a request to strike Mr. Oleinik’s Notice of Application which sought two remedies:
  • an order quashing the Report of Findings issued by the Office of the Privacy Commissioner (the OPC) regarding his complaint against the Social Sciences and Humanities Council of Canada (SSHRC);
  • an order directing the OPC to give Mr. Oleinik access to his personal information under the control of the OPC, further to his two requests for access to his personal information.
• The Court found that both parts of the Application were bereft of any chance of success and had to be stricken.

Issue

• Does section 41 of the Privacy Act provide the Court with jurisdiction to conduct a judicial review of the Privacy Commissioner’s findings and recommendations? 
• Administrative law jurisprudence requires that an applicant pursue all available administrative remedies before seeking judicial review. Does this mean that a person who is dissatisfied with the OPC’s decision, refusing access to personal information, must file a complaint with a Privacy Commissioner ad hoc before turning to the Federal Court?

Facts

Decision

The Application is bereft of any chance of success and therefore must be stricken. The Respondent is entitled to costs. 

Reasons

Summary

• Information obtained as part of a routine tax audit does not automatically become subject to the exception of paragraph 22(1)(a) of the PA as soon as it is placed into a fraud investigation file.
• The evidence before the Court must demonstrate that the exception applies to the document requested. 

Issues

• Could the Canada Revenue Agency’s (CRA) decision to refuse access to the documents requested be based on the wording of paragraphs 22(1)(a) and 22(1)(b) of the PA?
• If yes, did the CRA make a mistake in exercising its discretion under subsection 22(1) of the PA to refuse the disclosure of the personal information requested by the applicant?

Facts

The applicant, who was the subject of tax audits and a tax fraud investigation, requested that the CRA provide her with copies of her personal information (internal and external correspondence, internal reports, personal agendas, denunciations, etc.).  Some of the requested documents in the fraud investigation file may have been obtained or prepared by the CRA for tax audits prior to the commencement of the tax fraud investigation.

The CRA refused to disclose the information to her on the ground that such information was prepared and obtained in the course of an investigation. The CRA relied on the exceptions provided for in paragraphs 16(1)(a) and 16(1)(c) of the Access to Information Act when it should have relied on the equivalent exceptions in the PA, namely paragraphs 22(1)(a) and 22(1)(b), as this was a request for access to personal information.

The applicant filed a complaint with the Office of the Privacy Commissioner (OPC), which was determined by the OPC as being without merit. She then brought an application for judicial review before the Federal Court.

Decision

The application for judicial review was allowed, without costs.

The Court ordered the CRA to deliver to the applicant, within 120 days of the judgment, copies of certain documents in its possession and placed in the investigation file.

Reasons

Summary

Any aspect of a decision by a head of a government institution to disclose third party information pursuant to the ATIA, including the validity of the decision itself may be reviewed by the Court as a part of a section 44 review.

An institution may make only one decision with respect to an information request. Once the decision is made, the institution cannot change it, except upon the recommendation of the Information Commissioner of Canada (Commissioner) or pursuant to a review.

Issues

• Is the Third Decision by Transport Canada void and of no effect?
• In the alternative, is the disputed information exempt from disclosure pursuant to subsection 20(1) of the ATIA?

Facts

Under the certificate issued to Porter Airlines (Porter), Transport Canada requires that it implement a safety management system. In May 2010, Transport Canada conducted an assessment of Porter’s safety management system and submitted its findings in a report entitled “SMS Audit Report of Porter Airlines 2010”.

In September 2010, Transport Canada informed Porter in a letter that it had received a request for access to information concerning the “Safety Management System (SMS) Audit Report of Porter Airlines 2010.” The letter stated that Transport Canada was required pursuant to subsection 20(1) of the ATIA to provide Porter with notice to allow it to challenge disclosure of this document. Porter submitted to Transport Canada that the Assessment Report was wholly exempt from disclosure under section 20 of the ATIA and, given the nature of the document, it was not reasonably severable pursuant to section 25 of the ATIA. 

In December 2010, a meeting took place to discuss the possibility of severing the document. In February 2011, the requestor filed a complaint concerning the delay in obtaining the requested information with the Commissioner.

First Decision: In May 2011, Transport Canada advised Porter that it was going to release a severed version of the document to the requestor.  In June 2011, Porter filed a Notice of Application seeking judicial review of the First Decision (the “First Application”). 

Second Decision: In August 2011, Transport Canada informed Porter that it had re-examined the requested information, following the First Application, and concluded that further disclosure would be required.  A copy of the revised severed copy of the Assessment Report was forwarded to Porter.

In September 2011, the Commissioner concluded its investigation and found that Transport Canada had failed to abide by the ATIA’s timelines and had failed to keep the requestor informed of the steps being taken to process its request.

Porter objected to Transport Canada revising its First Decision, and in September 2011, Transport Canada voluntarily retracted its Second Decision. Porter therefore discontinued its First Application.

Third Decision: In October 2011, Transport Canada decided that the records requested were partially exempt pursuant to subsection 20(1)(b) of the ATIA and severed the information in it accordingly. Transport Canada sent Porter a copy of the severed Assessment Report that it intended to disclose to the requestor. The disputed information is the information that was redacted from the First Decision, but was not redacted from the Third Decision.

In October 2011, Porter issued another section 44 Notice of Application seeking judicial review of the Third Decision, which is the decision at issue in this proceeding. In January 2012, the Commissioner was added as a party to the case. In September 2012, Madam Prothonary Aronovitch issued a Confidentiality Order identifying confidential information contained in the records filed by the parties and specified how that information was to be dealt with up to the hearing of the application.

Decison

The Third Decision by Transport Canada, which is the matter at issue in this application for judicial review, is void and of no effect and is quashed. The Confidentiality Order remains in effect. Porter was awarded its costs.

Reasons

Issues

The case raised four issues but only one discussed the PA:

• Did the Board breach its obligation under subsection 144(2) of the Corrections and Conditional Release Act,or did it violate Mr. Subbiah’s privacy rights by communicating his parole decision?

Facts

Mr. Subbiah was an inmate at Kingston Penitentiary for 20 years, having been sentenced to 24 years, 9 months and one day for multiple sexual assaults and other violent offences. In 2008, the Board decided that he was not an appropriate candidate for conditional release.

In 2009, a reporter asked the Board to send him its decision regarding Mr. Subbiah, in accordance with subsection 144(2) of the Corrections and Conditional Release Act under which “a person who demonstrates an interest in a case” may request the communication of a decision regarding the release of an individual. The Board sent a copy of the decision to the reporter on February 12, 2009, after having redacted some personal information relating to Mr. Subbiah. The reporter posted the decision on the Internet.

On May 14, 2009, Mr. Subbiah was assaulted by two inmates. He was taken to the hospital to receive treatment and was released the next day. He then brought an action for breach of privacy and negligence against the Board and the Correctional Service of Canada. He alleged that they had irregularly communicated his parole decision, considering that under paragraph 144 (2)(a) of the Correction sand Conditional Release Act, information contained in a parole decision should not be communicated if the disclosure ”could reasonably be expected to jeopardize the safety of any person”. He stated that the disclosure of this decision allowed other inmates at the penitentiary to obtain information about his criminal record, which led to his assault.

Decision

The action for breach of privacy and negligence was dismissed with costs.

Reasons

• The prothonotary found that the Board did not breach Mr. Subbiah's privacy by communicating his parole decision to a reporter, in particular because the communication was authorized under paragraph 8(2)(b) of the PA.
• Indeed, subsection 144(2) of the Corrections and Conditional Release Act authorizes the communication of conditional release decisions when certain conditions are met and paragraph 8(2)(b) of the PA allows the communication of personal information for purposes authorized by federal law.
• The prothonotary also made note that even if the parole decision was circulating within the prison it still would not have constituted a violation of Mr. Subbiah’s privacy rights because the information in the decision was already on public record (subsection 69(2) of the PA states that section 8 does not apply to information that is “publicly available”).

The decision is available on the Federal Court Decisions website at: Subbiah v. Canada, 2013 FC 1194.

Summary

The Royal Canadian Mounted Police (RCMP) and the Department of Justice (Justice Canada) could not use the exemption under section 23 of the Access to Information Act (ATIA) to refuse to disclose a large portion of an inter-departmental protocol. However, three paragraphs were exempt from disclosure as privileged solicitor-client communications.

Issues

• Whether solicitor-client privilege under section 23 of the ATIA was properly interpreted and applied to a departmental protocol? 

Facts

This was an appeal of a Federal Court decision by the Ministers of Justice and Public Safety and Emergency Preparedness. 

The subject matter of this appeal was the refusal to disclose a protocol entered into by Justice Canada and the RCMP entitled “Principles to Implement Legal Advice on the Listing and Inspection of RCMP Documents in Civil Litigation” (“the Protocol”).

Following the refusal, the requester made a complaint to the Information Commissioner of Canada (Commissioner) under section 30 of the ATIA. The Commissioner conducted an investigation and issued two reports in August 2010 (one against the RCMP and the other against Justice Canada). The Commissioner determined that the requester’s complaints were well founded, and that the RCMP/Justice Canada ought to have disclosed the Protocol. The Commissioner applied to the Federal Court for judicial review of the respondent’s refusal to disclose.

The Federal Court found that none of the Protocol was solicitor-client privileged under section 23 of the ATIA, and did not contain advice or recommendations as per paragraph 21(1)(a) of the ATIA, both arguments advanced by the Crown. The Ministers of Public Safety and Justice appealed the decision. 

Decision

The appeal was allowed in part. 

Reasons

• The Federal Court of Appeal (FCA) found, as a preliminary matter, that the Protocol could be severed and that if part of the Protocol was subject to solicitor-client privilege, the remainder could still be disclosed. The FCA found that solicitor-client privilege attached to the first three paragraphs of the Protocol but not the last 14 paragraphs.