Info Source Bulletin 39A - Federal Court Decision Summaries

Index of Federal Court Decisions

In the case summaries, the term “judicial review” is used. This refers to the courts’ review of administrative decisions made by government officials, including positions taken by the Information and Privacy Commissioners of Canada.

Access to Information Act

Federal Court of Canada

1. Blank v. Canada (Environment)

Federal Court of Canada
Citation:

2015 FC 1251

Date of decision:

Section of the Access to Information Act (ATIA):

Section 41

  • Section 41 – Review by Federal Court
Summary

This case turns on section 41 of the Access to Information Act (ATIA). There are two conditions precedent to a judicial review by this Court. The first is a refusal of access and the second is a complaint to the Information Commissioner, resulting in a report.

It is a sound principle of administrative law that except in unusual circumstances, administrative recourses must be exhausted before coming to this Court. Factual findings and the record compiled by an administrative tribunal, as well as its informed and expert view of the various issues, will often be invaluable to a reviewing court.

The application with respect to redactions is dismissed as premature in the absence of a complaint to the Commissioner. The rest of the application is dismissed; the Commissioner’s finding that there is no record that cannot be challenged in Federal Court.

Issues
  • Whether the Federal Court can review the application of exemptions in the absence of a complaint to the Information Commissioner.
  • Whether the Federal Court can review a conclusion by the Information Commissioner and Environment Canada that certain records are not responsive to the request.
Facts

This is at least the 20th application by Mr. Blank for judicial review of alleged refusals by government officials to provide records requested under the ATIA.

The history of Mr. Blank’s saga has been summarized in a number of cases, including the decision of the Federal Court of Appeal in Blank v. Canada (Minister of Justice), 2004 FCA 287 and more recently in Blank v. Canada (Minister of Justice), 2015 FC 753.

This particular judicial review relates to a request on to Environment Canada for:

All records of Daniel Woo dealing with Gateway Industries Ltd. and/or Sheldon Blank on the subject of: section 82 Fisheries Act; Ministerial awareness; Amendment to the Charges; Limitation Period; and Minister’s Certificate.

This will include all communications on the above subjects to Mr. Woo from anyone else; and from Mr. Woo to anyone else; and copies that Mr. Woo was in receipt of. This request will include emails and notes of conversations dealing with the above subjects.

Mr. Woo was an employee in the Environmental Protection Branch, Prairie and Northern Region of Environment Canada. He searched his records and stated that he did not possess any record responsive to the request. An additional search was carried out by the Environmental Protection Branch of the Prairie and Northern Region. Again, no records responsive to the request were said to be found.

Mr. Blank was so informed and told that he was entitled to complain to the Office of the Information Commissioner of Canada (OIC), which he did. The OIC gave Environment Canada a Notice of Intention to Investigate and a Summary of the Complaint.

It was some four and a half years later, in connection with the investigation of another complaint by Mr. Blank, that documents which contained Mr. Woo’s name were sighted. These documents were not in Environment Canada’s offices in Winnipeg, but rather were at the law firm of Fillmore Riley, who were defending the civil action brought by Mr. Blank.

Some 1,350 pages were reviewed by the OIC. Although Environment Canada maintained the position that none of these documents were responsive to the request, the Commissioner suggested that 99 pages were responsive and recommended that they be produced. They were provided to Mr. Blank, although many pages were redacted on the grounds of solicitor-client privilege, personal information or Cabinet confidence.

The OIC wrote to Mr. Blank to report the above and to say that the OIC was now satisfied that thorough and proper searches were conducted and that all relevant records responsive to the request had been processed. Mr. Blank’s complaint was recorded as being well founded and resolved without the need to make formal recommendations to the head of the government institution in question.

Mr. Blank did not complain to the OIC that parts of the 99 pages were redacted. Rather, he applied to this Court for a judicial review. Although his application was filed out of time, the Court, in its discretion, extended the delays. Mr. Blank sought the production of the approximately 1,250 pages seen by the OIC but not produced, and a ruling on the redactions. He also submitted that there should be no order as to costs, irrespective of outcome.

Decision

This application for judicial review was dismissed with costs in favour of the Minister fixed at $11,270, all inclusive.

Reasons

There are two conditions precedent to a judicial review by this Court. The first is that Mr. Blank be refused access to a requested record. The second is that he must have complained to the Information Commissioner. In this case, he did not complain to the Commissioner that some pages had been redacted. Rather, he came directly to this Court.

The case law has been completely consistent. Mr. Blank did not fulfil one of the conditions precedent and so this portion of his application must be dismissed as being premature.

It is a sound principle of administrative law that except in unusual circumstances, administrative recourses must be exhausted before coming to this Court. Factual findings and the record compiled by an administrative tribunal, as well as its informed and expert view of the various issues, will often be invaluable to a reviewing court.

Furthermore, the Information Commissioner has persuasive power. She persuaded Environment Canada to release 99 pages even though the head of that institution was not satisfied that they were responsive to Mr. Blank’s request. She might likewise have brought about a change of heart with respect to the redactions.

With respect to Mr. Blank’s submission that it was unreasonable to conclude that the other 1,250 pages in issue were not responsive to the request, there is no recourse to the Court. The right of access must fall within the ATIA. The Court has no authority to challenge a finding by the Commissioner, after investigation, that there is no record. The Court has not been given jurisdiction to review the Commissioner’s findings and recommendations.

The decision is available on the Federal Court Decisions website at Blank v. Canada (Environment), 2015 FC 1251.

2. Blank v. Canada (Justice)

Federal Court of Canada
Citation:

2015 FC 460

Date of decision:

Sections of the Access to Information Act (ATIA):

Sections 23 and 25

  • Section 23 – Solicitor-client privilege
  • Section 25 – Severability
Summary

Disclosure of some information that is privileged does not amount to a waiver of privilege entirely. A waiver requires an express intention to relinquish the privilege.

The Department of Justice (DOJ) was entitled to raise solicitor-client privilege and sever off portions of some of the records sought.

DOJ fulfilled its obligation to disclose only those parts of the records that did not contain privileged information (section 25 of the Access to Information Act (ATIA)).

Issues
  • Whether Mr. Blank’s record contains materials that fall outside the Federal Courts Rules.
  • Whether DOJ improperly invoked solicitor-client privilege.
  • Whether documents were improperly severed.
Facts

Mr. Blank has continually sought disclosure of documents held by the Government of Canada relating to a regulatory prosecution against his company in the 1990s. Ultimately, in 2004 the prosecution was stayed. Mr. Blank has been seeking documentary evidence that would show prosecutorial misconduct in his case.

In this application, Mr. Blank requests disclosure of 17 pages of records from the DOJ. DOJ argues that the documents are subject to solicitor-client privilege (under section 23 of the ATIA). DOJ withheld some of the documents in their entirety, and severed off portions of others, under section 25 of the ATIA.

Mr. Blank argues that he was wrongly denied access to these documents because solicitor-client privilege does not apply to them, and because the power to sever portions of documents was improperly invoked. He sought an order compelling DOJ to disclose the records to him.

Decision

The application was dismissed with costs ($3,500.00).

Reasons
Whether Mr. Blank’s record contains materials that fall outside the Federal Courts Rules.

DOJ argues that Mr. Blank has improperly included in his record two affidavits that were prepared for purposes of an interlocutory proceeding, not this application. Therefore, they should not be considered. Further, DOJ maintains that Mr. Blank’s record contains numerous pages of unsworn materials that should not be before the Court.

The Court reviewed the documents included in Mr. Blank’s record and found them to be irrelevant to the issues of this application; therefore no formal ruling was made.

Whether DOJ improperly invoked solicitor-client privilege.

Mr. Blank does not dispute that the information he seeks is privileged. Rather, he maintains that DOJ waived its solicitor-client privilege, in particular, in situations where information was redacted out of some records disclosed to him, but was not redacted from others. He also contends that DOJ forfeited its privilege when it subjected him to an abuse of process.

The Court ruled that disclosure of some information that is privileged does not amount to a waiver of privilege entirely. A waiver requires an express intention to relinquish the privilege. Abuse of process, even if it had been proved here, is not an exception to solicitor-client privilege. In fact, there is no basis for concluding that there has been any wrongdoing that could justify lifting the privilege. DOJ correctly identified information that was privileged and reasonably exercised its discretion not to disclose it.

Whether documents were improperly severed.

DOJ fulfilled its obligation to disclose only those parts of the records that did not contain privileged information (section 25 of the ATIA). DOJ provided the portions of the requested documents that did not contain legal advice. Severance should be carried out only where there are parts of a document that can reasonably be severed from the rest. Therefore, the Court, having reviewed the unredacted documents, held that DOJ did not improperly sever the documents disclosed to Mr. Blank.

The decision is available on the Federal Court Decisions website at Blank v. Canada (Justice), 2015 FC 460.

3. Blank v. Canada (Justice)

Federal Court of Canada
Citation:

2015 FC 753

Date of decision:

Sections of the Access to Information Act (ATIA):

Subsection 19(1), section 23, paragraphs 21(1)(a) and (b), sections 25 and 41

  • Subsection 19(1) – Personal information
  • Section 23 – Solicitor-client privilege
  • Paragraph 21(1)(a) – Advice or recommendations
  • Paragraph 21(1)(b) – Account of consultations or deliberations
  • Section 25 – Severability
  • Section 41– Review by Federal Court
Summary

While the Court may allow the filing of supplementary affidavits on judicial review, such filing may only be done on specific request, on proper notice and with argument and material in support.

The Information Commissioner’s (the Commissioner) review is an essential element of the balanced statutory scheme enacted by Parliament. This is an important input given the Commissioner’s considerable expertise and knowledge about access to information issues, which the Court does not possess.

Without a complaint to and a review and report by the Commissioner regarding the Department of Justice (DOJ)’s disclosure, this Court lacks jurisdiction to engage in judicial review of the relevant records by virtue of section 41 of the Access to Information Act (ATIA).

The DOJ correctly applied the relevant exemptions, reasonably exercised its discretion not to disclose and properly discharged its severance obligations under section 25 of the ATIA.

Issues
  • Whether two affidavits filed by Mr. Blank in support of interlocutory motions before a prothonotary should be considered in support of his application for judicial review.
  • Whether the application for judicial review of the additional disclosure of 84 pages of documents by the DOJ is premature.
  • Whether the DOJ erred in its application of a discretionary exemption pursuant to the ATIA.
  • Whether the DOJ erred in severing the records pursuant to section 25 of the ATIA.
Facts

This is an application by Mr. Blank under section 41 of the ATIA for judicial review of the DOJ’s decision to deny access to portions of the records requested by access request and subsequent complaint dated .

Mr. Blank made an access request under the ATIA for:

All records and communications dealing with or referring to the civil litigation involving Sheldon Blank and Gateway Industries Ltd. (Manitoba Court of Queen’s Bench File CI 02-01-28295) from Rod Garson to anyone, or from anyone to Rod Garson. This request includes Rod Garson’s notes made on this subject.

On , the DOJ wrote to Mr. Blank and enclosed 194 pages which formed the deemed releasable documents relevant to his access request. In the same letter, the DOJ denied Mr. Blank access to portions of the requested records, claiming exemptions under subsection 19(1), paragraphs 21(1)(a) and 21(1)(b), as well as section 23 of the ATIA.

On , Mr. Blank complained to the Information Commissioner, alleging that the DOJ had improperly severed the records and improperly applied exemptions provided for by the ATIA.

On , the DOJ released additional documents (27 pages). In response to Mr. Blank’s complaint and after discussions with the Office of the Information Commissioner (OIC), the DOJ released an additional 15 pages on .

The OIC reported the result of its investigation to Mr. Blank on . The Commissioner was satisfied that the DOJ had properly applied exemptions, exercised its discretion and severed the applicable records. The Commissioner’s report dealt with the documents originally sent to Mr. Blank, plus the additional sets of 27 and 15 pages.

On , Mr. Blank applied to this Court for judicial review under section 41 of the ATIA of the DOJ’s decision to deny him access to portions of the requested records. In his application, Mr. Blank requested a review of records not released in whole or in part. His application also alleged that severability under section 25 of the ATIA was not properly applied, and that there are missing records, noting one attachment in particular.

On , the DOJ disclosed to Mr. Blank and this Court that certain documents (111 pages) were inadvertently omitted. The relevant documents were attachments to documents that had already been processed. On , the DOJ wrote to Mr. Blank and enclosed the 111 pages of documents. It claimed exemptions under subsection 19(1), paragraphs 21(1)(a) and 21(1)(b), as well as section 23 of the ATIA, but 27 of these pages were released in their entirety to Mr. Blank.

Despite being advised by the DOJ that the Court would lack jurisdiction to review these additional pages in the absence of a complaint to and report from the Commissioner, Mr. Blank elected not to make a complaint to the Commissioner regarding the additional documents. Instead, Mr. Blank unilaterally included in his Application Record the 111 pages of documents previously referred to, including the 27 pages that had been released to him in their entirety.

Decision

The application was dismissed with costs payable forthwith by Mr. Blank in the amount of $7,000.

Reasons
Whether two affidavits filed by Mr. Blank in support of interlocutory motions before a prothonotary should be considered in support of his application for judicial review.

The Court ruled that these affidavits should not be considered in support of this application for judicial review.

The affidavits filed by Mr. Blank in support of interlocutory motions became spent when those motions were decided. Further, they do not form part of his record on this application for judicial review for several reasons. First, Mr. Blank did not file them for that purpose and secondly, while the Court may allow the filing of supplementary affidavits on judicial review, such filing may only be done on specific request, on proper notice and with argument and material in support. The Court found that no such proper request had ever been made.

The DOJ was entitled to know the case he had to respond to and to allow the filing of these documents at this time would constitute a serious unfairness and injustice to the DOJ.

Whether the application for judicial review of the additional disclosure of 84 pages of documents by the DOJ is premature.

The Court agreed with the DOJ that without a complaint to and a review and report by the Commissioner regarding the DOJ’s disclosure, this Court lacks jurisdiction to engage in judicial review of the relevant records by virtue of section 41 of the ATIA.

The Commissioner’s review is an essential element of the balanced statutory scheme enacted by Parliament. The scheme of the ATIA entitles the Court to the views of the Commissioner on the adequacy of disclosure. This is an important input given the Commissioner’s considerable expertise and knowledge about access to information issues, which the Court does not possess.

Whether the DOJ erred in its application of a discretionary exemption pursuant to the ATIA.

The Court found no basis on which to order disclosure of material exempted on the basis of subsection 19(1) of the ATIA and agreed that the DOJ’s determination that the record fell within the exemption claimed was correct and its decision not to disclose that material was reasonable.

After reviewing the confidential non-redacted record filed under seal by the DOJ, the Court found that the exemptions under section 23 of the ATIA were correctly claimed and that the DOJ reasonably exercised its discretion to decline to disclose.

With regards to Mr. Blank’s complaint that documents may be missing, the Court stated that it has no jurisdiction to order “a more thorough search and disclosure”. In the present case, the Court found no grounds to believe that the integrity of the records had been tampered with.

Further, the Court did not find any evidence of abuse of process or similar blameworthy conduct that might set aside or pierce solicitor-client privilege. Its review of the documents did not disclose any evidence that “prima facie” shows actionable misconduct by the Crown in relation to the civil proceedings, or for that matter, evidence that “prima facie” shows actionable misconduct in relation to the now completed criminal proceedings. The Court found no evidence of wrongdoing.

The Court agreed with the Commissioner’s assessment that since section 23 of the ATIA had been properly applied by the DOJ, it was not necessary to consider the application of paragraphs 21(1)(a) or 21(1)(b) of the ATIA.

Whether the Department of Justice erred in severing the records pursuant to section 25 of the ATIA.

Given the limited exceptions to solicitor-client privilege, the Court concluded that severance was in accordance with the ATIA and was properly applied. Additional material could not be severed without revealing the nature of the litigation privileged material or impairing the solicitor-client privilege by providing clues to the content of the exempted portions or resulting in the release of meaningless out of context words and phrases.

The decision is available on the Federal Court Decisions website at Blank v. Canada (Justice), 2015 FC 753.

4. Blank v. Canada (Justice)

Federal Court of Canada
Citation:

2015 FC 956

Date of decision:

Sections of the Access to Information Act (ATIA):

Subsections 4(2.1) and 21(1), sections 23, 25 and 41

  • Subsection 4(2.1) – Responsibility of government institutions, duty to assist
  • Subsection 21(1) – Advice and recommendations
  • Section 23 – Solicitor-client privilege
  • Section 25 – Severability
  • Section 41 – Review by Federal Court
Summary

Solicitor-client legal advice privilege is absolute in scope and permanent in duration unless communications are criminal in themselves or intended to further criminal purposes.

When assessing the scope of the exception to solicitor-client privilege, the fact that the Supreme Court of Canada has said that solicitor-client privilege is nearly absolute has to be the guiding principle. It is hard to believe that there is an exception for communications which perpetuate a tort in light of the Supreme Court of Canada’s clear language.

The right to seek review in this Court under section 41 of the Access to Information Act (ATIA) is narrowly circumscribed. The Court’s reviewing authority only comes into play where access to a specific record has been refused and the only relief the Court can provide is to order access to the record at issue if the refusal was contrary to the ATIA. The Court cannot consider Mr. Blank’s complaints that the response to his request was tardy and was not rendered in accordance with the duty to assist (section 4(2.1) of the ATIA).

Issues
  • Whether affidavits affirmed and filed in a previous interlocutory motion are properly before the Court.
  • Whether the exemptions relied upon were vitiated as a result of abuse of process or other prosecutorial misconduct.
  • Whether the sections 21 and 23 exemptions and severance were properly applied.
  • Whether the duty to assist under subsection 4(2.1) of the ATIA was discharged.
  • Whether any deference should be accorded to the Information Commissioner’s report.
Facts

This is the latest in a long line of applications by Mr. Blank under section 41 of the ATIA seeking access to information that was not disclosed to him when he made a request for disclosure.

Mr. Blank was a Director of Gateway Industries Ltd. (Gateway) which operated a paper mill in the city of Winnipeg. Thirteen (13) charges were laid against him and Gateway in : five counts alleged pollution of the Red River and eight pertained to breaches of the reporting requirements of the Fisheries Act. Eight charges relating to the reporting requirements were quashed in by the Manitoba Provincial Court and the five remaining charged relating to offences of pollution were quashed by the Manitoba Queen’s Bench in . In , the Crown laid new charges by way of indictment, but the proceedings were stayed in .

Mr. Blank and Gateway sued the Federal Government in damages for alleged fraud, conspiracy, perjury and abuse of its prosecutorial powers. It is both in the context of the penal prosecution and the civil lawsuit that Mr. Blank sought to access Government records pursuant to the ATIA.

The access request behind the present section 41 application reads in relevant part as follows: “All records dealing with the continuation of the prosecution by indictment and all records dealing with the eventual decision to stay the proceedings (In the Fisheries Act prosecution against me and my company Gateway Industries Ltd.)”.

The request was processed and some seven hundred and ninety-eight (798) pages were released to Mr. Blank. Portions of the materials captured by the request were not released by virtue of paragraph 19(1) of the ATIA (personal information), paragraph 21(1) (government advice, recommendations, consultation or deliberation), and section 23 (solicitor-client privilege). These portions were redacted. Some documents were withheld in their entirety in reliance on the same exemptions.

Mr. Blank made a complaint to the Office of the Information Commissioner of Canada (OIC) on the basis of “improper severing and improper exemptions.” This resulted in the release of some of the information that had initially been redacted.

In , the OIC investigation into Mr. Blank’s complaint concluded that portions of Mr. Blank’s complaint were well founded: the Department of Justice (DOJ) had failed to meet statutory deadlines, and some of the information disclosed following the complaint had not properly been exempted. The OIC determined that personal information had been properly withheld under section 19, and that sections 21(1), 23 and 25 of the ATIA had been properly applied.

Mr. Blank brought a section 41 application to have the Court review the undisclosed records. He challenges the DOJ’s use of the sections 21(1) and 23 exemptions; its exercise of discretion not to disclose the records; and, the DOJ’s application of section 25 of the ATIA (severability).

Decision

The application for judicial review was dismissed with costs to the Minister of Justice in the amount of $5,000.00.

Reasons
Whether affidavits affirmed and filed in a previous interlocutory motion are properly before the Court.

In his recent decision of April 15, 2015 dealing with another section 41 application by Mr. Blank, the Court was asked to exclude two affidavits that had been proposed for purposes of a previous interlocutory proceeding but did not need to make a formal ruling because, after reviewing the documentation at issue, the Court found it irrelevant to the issues before him (see Blank v. Canada (Justice), 2015 FC 460).

The Court also noted the recent decision in Blank v. Canada (Minister of Justice), 2015 FC 753, in which Mr. Blank was denied the right to file affidavits in similar circumstances. Much of what the Court had to say in that case is applicable to the present case.

The Court noted that “Mr. Blank is a very experienced litigant before this Court and the issue of filing affidavits affirmed in other proceedings has been brought to his attention before. He really has not provided a justification for his failure to follow proper Federal Court practice.” The Court concluded that it cannot “turn a blind eye to his flouting of the rules” and that to accept these affidavits as being properly before the Court does not serve the interests of justice.

Whether the exemptions relied upon were vitiated as a result of abuse of process or other prosecutorial misconduct.

At the heart of this application is Mr. Blank’s assertion that the prosecutorial misconduct he was subject to in the past was so egregious that, as a matter of law, it vitiates the sections 21 and 23 exemptions relied upon to deny him some of the documentation he requested.

The Supreme Court of Canada has made it clear that solicitor-client privilege generally must be maintained as close to absolute as possible to ensure public confidence and retain relevance. Litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege. Solicitor-client legal advice privilege is absolute in scope and permanent in duration unless the communications in question are criminal in themselves or intended to further criminal purposes.

With respect to what kind of illegal act would terminate legal advice privilege under the ATIA, the Federal Court noted that various jurisdictions and levels of courts and commentators have suggested that the exceptions should be expanded to include certain or all tortious conduct.

The Court further noted that the Supreme Court of Canada has yet to provide a clear answer on what exactly is not protected by solicitor-client privilege and concludes it must be guided by Supreme Court of Canada jurisprudence and treat legal advice privilege as absolute in scope and permanent in duration unless Mr. Blank can establish that the communications in issue were “criminal in themselves or intended to further a criminal purpose”.

Whether the sections 21 and 23 exemptions and severance were properly applied.

The Court examined each document in turn and determined that the exemption was correctly claimed and the discretion was reasonably exercised. It also determined that severance was properly applied and that the exemptions are not vitiated by any kind of wrongdoing, including tort.

Whether the duty to assist under subsection 4(2.1) was discharged.

Given the narrow range of review which the jurisprudence says is available to Mr. Blank under section 41 of the ATIA, the Court cannot consider Mr. Blank’s complaints that the response to his request was tardy and was not rendered in accordance with subsection 4(2.1) of the ATIA.

The Court’s reviewing authority only comes into play where access to a specific record has been refused and the only relief the Court can provide is to order access to the record at issue if the refusal was contrary to the ATIA.

Whether any deference should be accorded to the Information Commissioner’s report.

Although Mr. Blank alleges bias against the OIC, there is no real evidence to support this allegation. Therefore, the OIC’s decision in this case is entitled to the usual deference.

The decision is available on the Federal Court Decisions website at Blank v. Canada (Justice), 2015 FC 956.

5. Calian Ltd. v. Canada (Attorney General)

Federal Court of Canada (*Appeal to the Federal Court of Appeal pending)
Citation:

2015 FC 1392

Date of decision:

Sections of the Access to Information Act (ATIA):

Paragraphs 18(b), 18(d), 20(1)(b), 20(1)(c), 20(1)(d) and subsection 20(5)

  • Paragraph 18(b) – Economic interests of Canada, prejudice to the competitive position of a government institution
  • Paragraph 18(d) – Economic interests of Canada, disclosure to be materially injurious to the financial interests of a government institution
  • Paragraph 20(1)(b) – Third party information, financial, commercial, scientific or technical information
  • Paragraph 20(1)(c) ̶̶ Third party information, disclosure be expected to result in material financial loss or gain, or the competitive position of a third party
  • Paragraph 20(1)(d) – Third-party information, interfere with contractual or other negotiations of a third party
  • Subsection 20(5) – Third-party information, disclosure if a supplier consents
Summary

A limited disclosure clause, allowing for disclosure of confidential personnel billing rates among government departments, does not preclude reliance on paragraphs 20(1)(c) or (d) of the Access to Information Act (ATIA) to exempt third-party information from disclosure.

Paragraphs 20(1)(c) and (d) of the ATIA apply, respectively, to personnel billing rates (Personnel Rates) that are the product of confidential and proprietary information and business analyses, that were previously treated as exempt from disclosure under the ATIA and that (i) would allow Calian Ltd.’s competitors to gain access to the totality of Calian Ltd.’s pricing and bid strategies or (ii) result in interference with contractual or other negotiations.

Agreeing to the limited disclosure of Personnel Rates to other departments of government has the effect of putting these Personnel Rates outside the second (confidential in its nature) and fourth (treated consistently in a confidential manner) parts of the Air Atonabee test governing the application of paragraph 20(1)(b) of the ATIA.

Issues
  • What is the appropriate standard of review?
  • Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(c) of the ATIA, and whether this is affected by the Disclosure Clause.
  • Whether the Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(d) of the ATIA, and whether this is affected by the Disclosure Clause.
  • Whether the head of the institution was required to consider the discretion to redact the Personnel Rates by subsection 20(5) of the ATIA, and if so, whether he or she did so.
  • Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(b) of the ATIA, and whether this is affected by the disclosure clause.
  • Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to section 18 of the ATIA.
Facts

This is an application by Calian Ltd. under section 44 of the ATIA for judicial review of two materially identical decisions of the Minister of Public Works and Government Services Canada (PWGSC) refusing to redact portions of Calian Ltd.’s confidential business records under the Act.

On September 4, 2009, PWGSC launched a request for standing offer (RFSO) to provide research assistants to the Royal Military College (RMC) in Kingston, Ontario. The RFSO required the bidding parties to include Personnel Rates or unit prices for each labour category or type of specialist provided by the bidder. The RFSO also required the bidder to adhere to various clauses.

Calian Ltd. submitted an offer in response to the RFSO. On November 30, 2009, Calian Ltd. won the bid and was awarded the Standing Offer for the “Provision of Research Assistants”.

The RFSO and resulting contract contained the following Disclosure Clause: “The Offeror agrees to the disclosure of its standing offer unit prices or rates by Canada, and further agrees that it will have no right to claim against Canada, the Identified User, their employees, agents or servants, or any of them, in relation to such disclosure.”

The access request at issue now is dated October 29, 2013 and asked for the following records: “Please provide a copy of all contracts, contract amendments, correspondence, and emails related to contract number W0046-08001/001/TOR (Military R&D) for the period of 2009/11/30 to 2013/03/01.”

In a letter dated December 18, 2013, Calian Ltd. opposed the disclosure by PWGSC, requesting redaction of its Personnel Rates including the redactions similar to those requested and granted in 2009.

On January 3, 2014, PWGSC issued a decision under section 28 of the ATIA. It found certain portions of the requested records were partially exempt from disclosure. However, in a break from past practice going back to 1997, the head of the institution declined to redact Calian Ltd.’s Personnel Rates, stating simply: “as the disclosure of information clause has already been incorporated in the [2010-2014] Standing Offer, the unit prices and rates cannot be considered to be confidential third party information that would prejudice your competitive position and we must therefore release them.”

Calian Ltd.’s evidence concerning the meaning of this clause is contained in the affidavit of Mr. Jerry Johnston, Calian Ltd.’s Vice President of Operations. Some of Mr. Johnston’s evidence included the following: that in all his years with Calian Ltd., he could not recall a single occasion on which detailed billing rates in contracts were disclosed by the government over the objections of Calian. Further, that such information had always been protected by the government pursuant to the provisions of section 20 of the ATIA, despite being the subject of a number of requests for access under it. Also, over the years, a number of access requests had been made seeking the release of information similar to the Personnel Rates now in issue. In each case however, while the contracts themselves were released, the heads of institution redacted what are now called Personnel Rates.

Decision

The application for judicial review was granted with costs in the amount of $5,000 to be paid to the successful party.

Reasons
What is the appropriate standard of review?

The Supreme Court of Canada’s decision in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 (Merck) determined that in relation to the application of paragraph 20(1)(c) of the ATIA, the decision to disclose or not to disclose is judicially reviewed on a standard of correctness. The Court applied the same test to paragraphs 20(1)(b) and (d) of the ATIA.

Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(c) of the ATIA, and whether this is affected by the Disclosure Clause.

Merck at para. 212 sets out the legal principles governing the application of paragraph 20(1)(c).

The Nature of the Personnel Rates

The Personnel Rates are the micro-level prices Calian Ltd. will receive for each individual specialist within the very great number of different labour categories. The uncontested evidence is that the ground-up development of Personnel Rates was the product of confidential and proprietary salary and other information that Calian Ltd. itself obtained from, or negotiated with, the many individual potential providers of required specialist labour services. To each of those amounts Calian Ltd. added its acquired business analyses in addition to what it needed as overhead, other costs and profit. These Personnel Rates are much more business sensitive than the old fully burdened rates in previous standing offers.

History of Dealings: Both Parties Consider and Treat Personnel Rates as Exempt

The general history of dealings between the parties is another relevant factor in considering the nature of the Personnel Rates and the issue of reasonable expectations of harm. Both parties treated the Personnel Rates, and the previous analogous ‘fully burdened’ unit rates, as exempt from disclosure under the ATIA going back at least to 1997.

Prejudice or Harm to Calian Ltd.’s “Competitive Position” Under Paragraph 20(1)(c)

If Calian Ltd.’s Personnel Rates are not redacted, both Calian Ltd.’s confidential pricing and bid strategies will be revealed to its competitors. Releasing Calian Ltd.’s detailed Personnel Rates will give its competitors a “free ride” on the complete range of Personnel Rates generated by Calian Ltd. through the use of is business skills and experience.

By disclosing the contract price, there is a real, objective risk that this information will give competitors a head start or “spring board” in developing competitive bids against Calian Ltd. for future contracts for data protection services. Calian Ltd.’s evidence also outlined a risk of potential harm from what it called “bid shopping”, the practice of divulging a contractor’s bid to other prospective contractors before the award of a contract in order to secure a lower bid.

Impact of the Disclosure Clause

The Respondents urged the Court to find the Disclosure Clause a complete bar to the exemptions in section 20(1) of the ATIA. The Respondent’s argument does not lead to the dismissal of this application. The ATIA, in asking what 'could reasonably be expected’, requires the Court to engage in a comprehensive analysis of relevant circumstances. While the Court must consider the Disclosure Clause, it must also assess the history of dealings between the parties and Calian Ltd.’s understanding of how and why that clause would be applied. Calian Ltd. reasonably understood that provisions like the 2003-09 and 2010-14 Disclosure Clauses were only included to allow rates to be shared between various government entities. The Disclosure Clause should therefore be interpreted in accordance with the reasonable understanding of Calian Ltd.

Having regard to the above, taken as a whole, and on a standard considerably above a mere possibility, the Court was satisfied disclosure of the Personnel Rates creates a reasonable expectation of probable harm to Calian Ltd.: disclosure could reasonably be expected to result in financial loss to Calian Ltd. and could reasonably be expected to result in prejudice to Calian Ltd.’s competitive position.

Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(d) of the ATIA, and whether this is affected by the Disclosure Clause.

The law in this regard establishes that the obstruction or interference with contractual or other negotiations of the third party must be probable and not merely speculative and may not merely consist of the heightening of competition. Calian Ltd.’s uncontradicted evidence is that if Personnel Rates are disclosed, Calian Ltd.’s other customers currently paying more will seek to pay less; if Calian Ltd.’s specialized consultants discover or find out the rates at which they are charged out, which includes salary plus all associated overhead, other costs and profit margin, they too will probably put pressure on Calian Ltd. to be paid at higher rates; it is also probable that these pressures will negatively impact Calian Ltd.’s negotiations with both its employees and potential suppliers. In this particular case, it was probable and not merely speculative that such harm could reasonably be expected to interfere with contractual or other negotiations between Calian Ltd. and third parties.

For essentially the same reasons as set out above regarding paragraph 20(1)(c) of the ATIA, the Court rejected the Respondents’ assertion that the Disclosure Clause is fatal to the claim for redaction. Considering the Disclosure Clause along with the history of past dealings, and the understanding of the limited nature of the clause itself, it cannot be said that the Disclosure Clause bars Calian Ltd. from obtaining the benefit of this statutory exemption. Therefore, an exemption is warranted under paragraph 20(1)(d) of the ATIA.

Whether the head of the institution was required to consider the discretion to redact the Personnel Rates by subsection 20(5) of the ATIA, and if so, whether he or she did so.

Given the finding that the disclosure clause did not constitute a consent to disclosure of the confidential Personnel Rates except to other government departments, strictly speaking, it may not be necessary to consider subsection 20(5).

However, for completeness, the head of the institution also failed to discharge his or her legal duty to consider the discretion he or she had to refuse to disclose created by use of the word “may” in subsection 20(5). In the case at bar, nothing on the record indicated that PWGSC considered the exercise of discretion under subsection 20(5). Therefore, PWGSC failed in its legal duty as set out by the Federal Court of Appeal.

Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to paragraph 20(1)(b) of the ATIA, and whether this is affected by the disclosure clause.

Paragraph 20(1)(b) did not apply in this case. In short, having agreed to disclosure as set out in its understanding of the disclosure clause, Calian Ltd. is unable to meet the requirement that the information be communicated with a reasonable expectation of confidentiality. Calian Ltd. admits it agreed to allow the disclosure of Personnel Rates to other departments of government.

To claim the exemption under paragraph 20(1)(b), Calian Ltd. must meet the four-part test outlined in Air Atonabee Ltd v Canada (Minister of Transport), [1989] FCJ no 453:

  • Financial, commercial, scientific or technical information as those terms are commonly understood;
  • Confidential in its nature, according to an objective standard which takes into account the content of the information, its purposes and the conditions under which it was prepared and communicated;
  • Supplied to a government institution by a third party; and
  • Treated consistently in a confidential manner by the third party.

While the first and third parts are met, neither the second nor the fourth were met in the present case because Calian Ltd. agreed to disclosure. While the Personnel Rates are certainly confidential in nature, they were both prepared and communicated under an understanding of the disclosure clause, which allowed disclosure to other government departments. This disclosure, limited as it was, had the effect of putting these Personnel Rates outside the second part of the test. For the same reason, it cannot be said that information was “treated consistently in a confidential manner”. Therefore, the claim for protection under paragraph 20(1)(b) must fail.

Whether Calian Ltd.’s Personnel Rates are entitled to redaction pursuant to section 18 of the ATIA.

Neither subsections 18(b) nor (d) may be relied on for redaction.

Section 18 is headed by the words “Economic interests of Canada”. Calian Ltd.’s claim did not appear to relate to the “economic interests of the nation”. If it did, no doubt a great many other government contracts would be subject to section 18 which is not reflective of the legislative intent. Further, there was no evidence on which to conclude that the requested disclosure could reasonably be expected to either a) prejudice the competitive position of a government institution; or b) interfere with contractual or other negotiations of a government institution. Therefore, the claim under subsection 18(b) must fail.

Subsection 18(d) must be read in harmony with the rest of section 18. There was no evidence to substantiate Calian Ltd.’s claim to redaction under subsection 18(d). Therefore, the claim under subsection 18(d) must also fail.

The decision is available on the Federal Court Decisions website at Calian Ltd. v. Canada (Attorney General), 2015 FC 1392.

6. Canada (Office of the Information Commissioner) v. Canada (Attorney General)

Federal Court of Canada
Citation:

2015 FC 405

Date of decision:

Sections of the Access to Information Act (ATIA):

Section 3, subsection 4(3) and section 11

  • Section 3 – Definition of record
  • Subsection 4(3) – Records produced from machine readable records
  • Section 11 – Fees
Other legislation:

Access to Information Regulations, section 7

Federal Courts Act, subsection 18.3(1)

Summary

Electronic records are not “non-computerized records” for the purpose of the search and preparation fees authorized by subsection 11(2) of the Access to Information Act (ATIA) and subsection 7(2) of the Access to Information Regulations (Regulations). Therefore, no fees may be charged in respect of their search and preparation in response to an access request.

Issue
  • Whether electronic records are non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the ATIA and subsection 7(2) of the Regulations.
Facts

The Information Commissioner referred the foregoing question to the Federal Court under subsection 18.3(1) of the Federal Courts Act, which provides that a federal board, commission or other tribunal may refer any question of law to the Federal Court for determination.

This reference addresses the issue of whether government institutions which are subject to the ATIA are at liberty to charge the public a fee to search for, and prepare for disclosure, information found in governmental electronic records.

Fees are provided for in section 11 of the ATIA and in section 7 of the Regulations. Section 11 of the ATIA contemplates that a person requesting access to a record may be required to pay a fee for every hour in excess of five hours that is reasonably required to search for the record or prepare any part of it for disclosure, be it prepared from a machine readable record or not, all as may be prescribed by regulation.

Section 77 of the ATIA provides that the Governor-in-Council may make regulations, among other things, for: prescribing a fee for the purpose of paragraph 11(1)(a); and the manner of calculating fees or amounts payable for the purposes of paragraphs 11(1)(b) and (c) and subsections 11(2) and (3).

Section 7 of the Regulations covers the four types of fees which Parliament authorized the Governor-in-Council to enact by way of regulations. Under subsection 7(2) a search and preparation fee may be charged if the record is a “non-computerized record”. Subsection 7(3) authorizes to charge fees where the record is produced from “a machine readable record” for the cost of the central processor and all locally attached devices as well as for time spent on programming a computer.

The Information Commissioner submitted that “non-computerized records” mean records which are not stored in or on a computer or in electronic format.

The Attorney General of Canada submitted that applying a contextual analysis, records that are subject to search and preparation fees in subsection 7(2) of the Regulations include records in electronic format (such as Word documents or emails) that can be produced without the need to program a computer to create the record. The Attorney General of Canada’s submission is that a “computerized record” is a record which did not exist at the time the request was made but was thereafter created from a machine readable record. Therefore, a “non-computerized” record within the meaning of subsection 7(2) of the Regulations is any electronic record which is not in itself created from a machine readable record. Put another way, existing emails, Word documents and the like are non-computerized records.

Decision

The Federal Court answered the question referred to it in the negative, holding that electronic records are not non-computerized records for the purposes of the search and preparation fee provisions.

Reasons
Deference

The Court determined that no deference was owed to judges of the Federal Court who had looked at relevant portions of the ATIA and Regulations in the past; to the Information Commissioner whose home statute it is and to the opinion of Ministers of the Crown, particularly the President of the Treasury Board, whose predecessors fixed the search and preparation fees.

In neither Blank v. Canada (Minister of the Environment), [2000] F.C.J. No. 1620 nor Yeager v. Canada (Correctional Services), 2003 FCA 30 was the issue fully canvassed or decided. This is a reference to the Court by the Information Commissioner in which the Court is called upon to form its own opinion, not to decide whether or not the opinion of the Information Commissioner is reasonable as might well be the case were this a matter of judicial review. There is no decision of the Information Commissioner under review. Also, the Federal Court of Appeal held in Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40 that the correctness standard applies to a minister’s interpretation of an enabling statute.

Rules of statutory interpretation

The parties all agree on Driedger’s “modern” approach to statutory interpretation: “[a] statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute, and the intention of the legislature” (Glykis v Hydro-Québec, 2004 SCC 60). This contextual approach to statutory interpretation as opposed to a more literal approach is not particularly new.

Analysis

There is a rebuttable presumption that Parliament and the Governor-in-Council intended to give words their ordinary meaning. Therefore, the Court first interpreted the ATIA and the Regulations in this light and then considered whether context gives the words used another meaning.

Parliament left fees to the Governor-in-Council. Parliament enabled the Governor-in-Council to regulate search and preparation fees irrespective of the form of the record, electronic or hard copy, and if in electronic form whether it already existed or had to be created from a machine readable record.

The difficulty lies in interpreting the Regulations. The Court was at a loss to understand why subsection 7(2) of the Regulations refers to a “non-computerized record” instead of simply referring to a record, as is the case in the ATIA itself.

In ordinary parlance, emails, Word documents and other records in electronic format are computerized records. There is a gap in the search and preparation fees in that they do not cover electronic documents which were not themselves created from a machine readable record.

There is no ambiguity between the English and French versions of the ATIA and Regulations and nothing which would give the term “non-computerized record” the restricted meaning urged upon the Court by the Attorney General and the interveners that a “non-computerized record” includes any electronic record which did not in itself exist but was created from other records in order to satisfy a demand under subsection 4(3) of the ATIA.

While “non-computerized record” is not found anywhere else in the federal statutes or regulations, it does not follow that the term means something other than what it says. Whether stored in an internal hard drive, external hard drive or the now obsolete punch cards and floppy disks, such records are machine readable and therefore computerized.

Legislation is promulgated to the public, addressed to all Canadians. The language cannot be so obscure that one must glean through hundreds of statutes and thousands of regulations in order to arrive at its true meaning.

The Governor-in-Council was very precise in setting out copying charges. Likewise, the regulation with respect to search and preparation is very precise. There is a gap. However, Parliament made it very clear: no regulation – no fee.

At this stage, context must be considered to ascertain whether the language used must be given an interpretation other than its plain and ordinary meaning.

It is submitted that it is illogical that no fee is payable for search and preparation of electronic records as most records in the federal depository are now in that form. That, indeed, may be so. However, it is not the role of the Court to read a regulation as it ought to be, rather than as it is.

Some of the interveners are ill-equipped to deal with requests, and have budgetary restraints. Search and preparation fees would help their financial situation. However, it is Parliament that placed these institutions under the ATIA. If they are underfunded, they should not be looking to the courts for redress.

The Court agreed with the Information Commissioner’s submission that a court should not, under the guise of contextual analysis or liberal and purposive interpretation, attribute a meaning to statutory language that goes beyond what the words of the statute or regulation can reasonably bear.

The decision is available on the Federal Court Decisions website at Canada (Information Commissioner v. Canada (Attorney General) 2015 FC 405.

7. Canada (Office of the Information Commissioner) v. Canada (Health)

Federal Court of Canada
Citation:

2015 FC 789

Date of decision:

June 24, 2015

Sections of the Access to Information Act (ATIA):

Sections 23 and 42

  • Section 23 – Solicitor-client privilege
  • Section 42 – Information Commissioner may apply or appear
Summary

Solicitor-client privilege should be analysed in a continuum of communication and documents should not be examined in isolation. The protection of communication under the solicitor-client privilege is not limited to only those exchanged between the solicitor and client, but also those made in the context of that relationship and for the purpose of obtaining legal advice.

The question of whether the Minister properly applied the exemption of solicitor-client privilege under section 23 of the Access to Information Act (ATIA) is reviewable on the standard of correctness. The Minister’s discretionary decision to refuse disclosure is reviewable on the standard of reasonableness.

The Minister’s discretion to refuse disclosure should be afforded deference.

Issues
  • What is the standard of review?
  • Whether any of the records contain information that is subject to solicitor-client privilege.
  • Whether the Minister reasonably exercised its discretion in refusing disclosure of portions of the records.
  • Whether the severance of information was reasonable under section 25 of the ATIA.
Facts

This is an application by the Office of the Information Commissioner of Canada (OIC) for judicial review pursuant to paragraph 42(1)(a) of the ATIA in respect of the Minister of Health’s decision to refuse to disclose information responsive to Apotex’s request under the ATIA for records related to the processing of an Abbreviated New Drug Submission (ANDS) and issuance of a notice of compliance with respect to Apo-Pantoprazole.

Health Canada received an access to information request for copies of all documents related to the processing of ANDS and issuance of a March 5, 2008 Notice of Compliance. Health Canada provided 47 pages in their entirety and a redacted version of eight pages for a total of 55 pages of documents. Portions of the eight pages at issue were withheld from disclosure on the basis of solicitor-client privilege pursuant to section 23 of the ATIA.

The OIC received a complaint from the requester concerning Health Canada’s application of section 23 of the ATIA as a basis for refusal to disclose. During the course of the OIC’s investigation, it sought and obtained an unredacted copy of the documents at issue, as well as Health Canada’s file relating to the processing of the requester’s access file.

The eight pages of redacted record contain the following information: 1) five out of eight pages contain email strings bearing the subject line [redacted]; 2) one page of search results for Pantoloc in the Patent Register [redacted]; and 3) the last two out of eight pages contain email strings bearing the subject line [redacted] involving a counsel at the civil litigation section at the Department of Justice (DOJ) and a senior counsel at Health Canada Legal Services.

The OIC wrote a letter acknowledging that the communications between Health Canada and the DOJ were between the client institution and the solicitor. It recommended the release of the eight pages of record at issue. Further, the OIC investigator asked Health Canada to provide answers to the following questions: i) What was the legal advice sought? ii) What was the legal advice given? and iii) What is the harm or injury if the information was released and provide rationale for the continued exemptions on the records?

On March 5, 2012, Health Canada provided its answer to the OIC stating that: 1) [redacted]; 2) section 23 of the ATIA does not require an injury test. A class test applies where a government institution is satisfied that information falls within the class specified. It is a sufficient basis to refuse disclosure. Health Canada concluded that it maintains its original assessment that these records are communications between counsel and client to obtain or provide legal advice.

On July 31, 2012, the OIC wrote to Health Canada pursuant to paragraph 35(2)(b) of the ATIA asking for all evidence and arguments Health Canada relied on to reach its conclusion. On September 4, 2012, Health Canada responded with the same rationales as its March 5, 2012 letter.

On April 23, 2013, the OIC wrote to Health Canada stating that Health Canada had not established that the withheld information qualifies as being subject to solicitor-client privilege and that even if the privilege could apply, the evidence did not establish that discretion had been properly exercised. On May 24, 2013, Health Canada informed the OIC that it maintains its position that the solicitor-client privilege exemption applies.

The OIC reported the result of its investigation to the requester. With the requester’s consent, it initiated this application for review pursuant to paragraph 42(1)(a) of the ATIA.

Decision

The application for judicial review was dismissed except with respect to one sentence, with costs to Health Canada.

Reasons
What is the standard of review?

The OIC and Health Canada both agreed on the applicable standards of review: the question of whether the Minister properly applied the exemption of solicitor-client privilege under section 23 of the ATIA is reviewable on the standard of correctness and the Minister’s discretionary decision to refuse disclosure is reviewable on the standard of reasonableness.

Whether any of the records contain information that is subject to solicitor-client privilege.

Insofar as the legal advice privilege is concerned, the Supreme Court of Canada stated in Solosky that it can be claimed document by document with each document being required to meet three criteria: i) a communication between solicitor and client; ii) which entails the seeking or giving of legal advice; and iii) which is intended by the parties to be confidential. It was determined by the Court that all except for one part of the documents at issue met these criteria.

For the first prong of the Solosky test, the Court agreed with Health Canada that all the documents at issue contain communication between solicitor and client. The Court further stated that the protection of communication under the solicitor-client privilege is not limited to only those exchanged between the solicitor and client, but also those made in the context of that relationship and for the purpose of obtaining legal advice. Here, the communication was conducted within the usual and ordinary scope of the professional solicitor-client relationship and met the first prong of the test.

For the second prong of the Solosky test, with respect to all except for one part of the documents, the Court agreed with Health Canada that when the documents are examined in context, they qualify as legal advice. Information should be examined not in isolation, but in a continuum of communication to consider the proper context.

The Court determined that all except for one part of the documents relate to legal advice. The information not found to be privileged was a reference to OPML, which the OIC argued was related to staffing. As Health Canada did not provide a response as to what OPML is about, the Court determined that if the OIC was right about what OPML meant, this particular part of the document would not meet the second prong of the Solosky test and hence, was not subject to the exemption under solicitor-client privilege.

For the third prong of the Solosky test, the Court agreed with Health Canada that the documents at issue contained confidential subject matter. He referred to the Federal Court of Appeal decision in Gateway at paragraph 29 that stated, “[i]n the case of most solicitor-client communications . . . the element of confidentiality is inferred on the basis of the subject of the communication and the surrounding circumstances.” Since all except for one part of the documents meet each of the three prongs of the Solosky test, the Court found all the documents at issue except for the part relating to OPML are subject to the protection of the solicitor-client privilege and hence, exempted from disclosure.

Whether the Minister reasonably exercised its discretion in refusing disclosure of portions of the records.

The Court agreed with the Respondent that the Minister’s discretion should be afforded deference. In this case, as demonstrated by the correspondence between Health Canada and the OIC, Health Canada did provide reasons on why it refused to accept the OIC’s recommendation to disclose the documents at issue. Also, there is no evidence of any abuse of discretion. Therefore, the Court was satisfied that the Minister reasonably exercised its discretion.

Whether the severance of information was reasonable under section 25 of the ATIA.

The Court determined that the only part of the documents that would be subject to disclosure is the sentence relating to OPML. Severance was properly exercised, except that the above noted sentence should also be severed.

The decision is available on the Federal Court Decisions website at Canada (Office of the Information Commissioner) v. Canada (Health), 2015 FC 789.

8. Lukács v. Natural Sciences and Engineering Research Council of Canada

Federal Court of Canada
Citation:

2015 FC 267

Date of decision:

Sections of the Access to Information Act (ATIA):

Paragraph 10(1)(b), subsection 10(2), sections 34 and 41

  • Paragraph 10(1)(b) – Where access is refused, specific provision of the Act
  • Subsection 10(2) – Existence of a record not required to be disclosed
  • Section 34 – Regulation of procedure
  • Section 41– Review by Federal Court
Summary

Section 34 of the Access to Information Act (ATIA) makes it clear that the Office of the Information Commissioner (OIC) is master of its own procedure insofar as the conduct of investigations is concerned. There is nothing in the legislative structure that would preclude the OIC from investigating and reporting on a complaint in stages.

Where the OIC limits its investigation to certain issues (in this case the applicability of subsection 10(2) of the ATIA), the third prerequisite for engaging the Federal Court’s jurisdiction under section 41 of the ATIA, identified by the Federal Court of Appeal in Statham v. Canadian Broadcasting Corp., 2010 FCA 315 – namely, that the applicant must have received a report of the OIC under subsection 37(2) of the ATIA – will not be met in relation to issues the OIC specifically declines to address in its report.

In this case, because the OIC specifically limited its report to the issue of the applicability of subsection 10(2) of the ATIA and expressly deferred its investigation and report on the application of the specific exemptions Natural Sciences and Engineering Research Council of Canada (NSERC) claimed, the Federal Court found the Mr. Lukács’ application for a de novo review of the applicability of these exemptions to be premature.

Since NSERC was no longer relying on subsection 10(2) of the ATIA, which was the matter addressed in the OIC report, this aspect of the application was identified as moot. The Court declined to exercise its discretion to review a moot issue since the application of subsection 10(2) of the ATIA is largely a fact-specific exercise and does not involve an issue of public importance that would transcend the interests of these parties nor is it an issue that is capable of repetition, but otherwise elusive of review.

Issues
  • Whether the application for judicial review is moot insofar as it related to subsection 10(2) of the ATIA.
  • Whether the application for judicial review is premature to the extent that it relates to NSERC’s other asserted exemptions.
Facts

Dr. Lukács made a request to the Natural Sciences and Engineering Research Council (NSERC) for “copies of any reports or correspondence regarding the nature and outcomes of investigations regarding research misconduct, as reported to NSERC by McGill University between January 2010 and April 2012, with nominative information concerning individuals excised as required by the ATIA.” He further requested “copies of any decisions or correspondence related to actions subsequently taken by NSERC in response to the reports or communications from item (1)…with nominative information concerning individuals excised as required by the Act.”

NSERC informed the Applicant that it could “neither confirm nor deny the existence of such records in accordance with section 10(2) of the ATIA (the first refusal).”

Dr. Lukács then filed a complaint with the Office of the Information Commissioner of Canada (OIC). He submitted that NSERC had failed to comply with paragraph 10(1)(b) of the ATIA. This provision states that where the head of a government institution refuses to grant access to information, notice should be provided as to “the specific provision of this Act on which the refusal was based or, where the head of the institution does not indicate whether a record exists, the provision on which a refusal could reasonably be expected to be based if the record existed.”

NSERC sent Dr. Lukács a further response to his initial access request, reiterating its position that, in accordance with subsection 10(2) of the ATIA, it could neither confirm nor deny the existence of the information sought. However, NSERC further stated that if such a record existed “it can reasonably be expected that it would have been withheld pursuant to subsection 19(1) of the ATIA for personal information” (the second refusal).

Dr. Lukács then provided the OIC with further submissions regarding the second refusal, and in July of 2014, he received a third response from NSERC (the third refusal). This time NSERC stated that after their discussions with the investigator, the documents would now be withheld, in their entirety, under section 19(1) of the ATIA. NSERC also stated that some of the requested documents should also be withheld under section 23 of the ATIA, which protects documents that are subject to solicitor-client privilege, and under paragraph 21(1)(b) of the ATIA, which protects accounts of deliberations and consultations involving the directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister.

On July 30, 2014, Dr. Lukács provided the OIC with submissions in relation to the third refusal.

The OIC outlined the results of its investigation into Dr. Lukács’ complaint in a report dated September 2, 2014. The report noted that the OIC had disagreed with NSERC’s reliance on subsection 10(2) of the ATIA in its first and second responses, and that the OIC had asked NSERC to reconsider its position. The report further indicated that the OIC’s investigation had been limited to the applicability of subsection 10(2) and that the OIC would consider Dr. Lukács’ letter of July 30, 2014 as a new complaint concerning the exemptions of sections 19(1), 21(1)(b) and 23 of the ATIA applied by NSERC to which an investigator had been assigned.

On October 17, 2014, Dr. Lukács filed his application for judicial review with respect to NSERC’s continuing refusal to grant him access to the requested documents.

NSERC responded with its motion to strike Dr. Lukács’ application. NSERC argued that the application is moot as it had withdrawn its reliance on the provision under subsection 10(2) of the ATIA prior to the release of the OIC’s report.

NSERC also submitted that the OIC has yet to consider the exemptions that it now asserts under sections 19(1), 21(1)(b) and 23 of the ATIA. Absent a report from the OIC addressing NSERC’s reliance on these provisions, NSERC asserted that Dr. Lukács’ application for judicial review is premature.

Decision

NSERC’s motion to strike was granted, and the application for judicial review was struck out. Costs were not sought or awarded.

Reasons
Whether the application is moot insofar as it related to subsection 10(2) of the ATIA.

The Court found that this aspect of the application was clearly moot. By the time that the OIC delivered its report, NSERC was no longer relying on subsection 10(2) of the ATIA to refuse to confirm or deny the existence of records to which access was being denied.

While the Court has discretion to decide a case that has become moot, Dr. Lukács failed to identify any principled basis that would justify the expenditure of scarce judicial resources to decide the propriety of an exemption that NSERC is no longer claiming. Moreover, the application of subsection 10(2) of the ATIA is largely a fact-specific exercise and does not involve an issue of public importance that would transcend the interests of these parties nor is it an issue that is capable of repetition, but otherwise elusive of review.

Whether the application is premature to the extent that it relates to NSERC’s other asserted exemptions.

Relying on Statham v. Canadian Broadcasting Corp., 2010 FCA 315 at para. 64, [2012] 2 F.C.R. 421, the Court identified three prerequisites that an individual seeking access to information must satisfy before applying to the Federal Court under section 41 of the ATIA. These are:

  • The applicant must have been “refused access” to a requested record;
  • The applicant must have complained to the OIC about the refusal; and
  • The applicant must have received a report of the OIC under subsection 37(2) of the ATIA.

The parties agree that the first two Statham criteria have been met in this case. Where they disagree is in relation to the third criterion.

NSERC assets that the OIC has yet to report on the availability of exemptions under sections 19(1), 21(1)(b) and 23 of the ATIA, and that the application for judicial review is premature in the absence of such a report.

Dr. Lukács submits that the third Statham criterion only requires that an applicant receive “a report” from the OIC. He submits that he has received “a report”, together with notice from the OIC of his right to seek judicial review with respect to NSERC’s refusal to provide him with access to the requested documents.

According to Dr. Lukács, section 41 of the ATIA does not specify what an OIC report must address. Dr. Lukács also submits that the OIC cannot bifurcate its investigations and reports and that once the OIC has delivered “a report” in relation to an access complaint, it is “functus officio” and loses jurisdiction over the matter.

The Court noted that in order to engage the doctrine of “functus officio”, the decision in issue must be final. It noted that the OIC’s report was not a final one, as it clearly deferred consideration of the substantive grounds for refusal of access to a future investigation. It was, moreover, arguably not even a decision, as it did not finally determine any rights. In contrast to investigative bodies such as the Canadian Human Rights Commission, the OIC does not make binding decisions, and only has the power to issue recommendations.

Although he did not raise this argument before the OIC, Dr. Lukács cited Davidson v. Canada (Solicitor General) [1989] 2 F.C. 341, 61 D.L.R. (4th) 342 and submitted that a government institution cannot amend its grounds for refusing access to documents once a complaint has been filed with the OIC. The Court found the Davidson case to be readily distinguishable from the present case, as the amended grounds relied upon in Davidson were only asserted by the government institution after the delivery of the Privacy Commissioner’s report, and not before.

The Court found that a government institution can indeed amend the grounds asserted for denying access if it does so before the OIC has reported in relation to an access complaint as in Tolmie v. Canada (Attorney General), [1997] 3 F.C. 893, 137 F.T.R. 309.

Ultimately, the Court found that the OIC had yet to investigate or report on the availability of the exemptions claimed by NSERC under sections 19(1), 21(1)(b) and 23 of the ATIA. As a result, the Court ruled that Dr. Lukács’ application for judicial review is premature and stated that it should be struck on this basis.

The decision is available on the Federal Court Decisions website at Lukács v. Natural Sciences and Engineering Research Council of Canada, 2015 FC 267.

9. Recall Total Information Management Inc. v. Canada (National Revenue)

Federal Court of Canada
Citation:

2015 FC 848

Date of decision:

Sections of the Access to Information Act (ATIA):

Sections 27, 28 and 44

  • Section 27 – Notice to third parties
  • Section 28 – Representations of third party and decision
  • Section 44 – Third party may apply for a review
Summary

Issuing a new decision during active section 44 proceedings is not a valid legal option, whether a government institution intends to disclose more or less information.

Issues
  • Whether the head of a government institution can issue a new or second decision on an access request where the head reverses herself and now decides to exempt from disclosure records which she had already decided were not exempt from disclosure.
Facts

Following an access request for records including “contracts and tender information between Canada Revenue Agency (CRA) and Recall Total Information Management Inc. (Recall) regarding the storage of CRA tax files”, the Minister notified Recall pursuant to subsection 27(1) of the Access to Information Act (ATIA) that it had 20 days to make representations as to why the records should not be disclosed. Recall did not file any representations.

On May 2, 2014, the Minister notified Recall that she had decided to refuse to disclose a portion of the records but intended to disclose other parts. This notice constitutes the Minister’s decision for purposes of legal proceedings under the ATIA. Recall commenced section 44 proceedings to prevent disclosure of some portions of the responsive records and the Information Commissioner filed to be added as a party.

On May 6, 2015, in the course of preliminary matters on the section 44 application, the Minister informed the Court that based on new evidence, she was about to issue a new or amended decision altering the position taken in her initial decision. On May 7, 2015, the Minister purported to issue a second decision.

Recall filed a notice of discontinuance on the basis that the Minister’s initial decision was no longer operative and had been superseded by the May 7, 2015 second decision.

The Information Commissioner took the position that the Minister had no legal authority to issue a new or amended decision and sought a ruling on the legal significance of the second decision.

Decision

The Court held that the Minister’s letter of May 7, 2015 is not a valid written notice of decision which the Minister is authorized to issue; that the proceeding is to continue; and that the Minister is to advise the requester within ten days of the order of the position she will now be taking.

Reasons

The ATIA is intended to provide a right to information in the hands of government in a timely manner and provides for the independent “de novo” oversight by the Court of any exemption claimed to be applicable.

According to the Court, prior decisions by the Federal Court establish that a government institution can only make one decision in respect of an access request. These cases note that the scheme of the ATIA sets out a very precise timetable and detailed procedures for processing an access request that authorize only one decision with respect to a third party’s objection to the disclosure of the requested record.

While affirming this general conclusion, AstraZeneca and Porter Airlines recognized two triggering events that confer a valid legal authority to change the original decision. First, pursuant to section 29 of the ATIA, the Minister may, upon recommendation of the Information Commissioner, decide to disclose information which the Minister had originally decided was exempt from disclosure. Second, the section 44 court review process, which is a “de novo” review on a standard of correctness, presents a valid opportunity for a government institution to change its position.

The Court concluded that the weight of the jurisprudence in the Federal Court is that the second decision has no force and effect.

Once a proceeding is initiated, it is the obligation of the Court to determine whether the exemptions to disclosure are applicable; it is not the Minister’s decision that determines the exemptions.

Access to information is an important right and that access must be timely, otherwise the force and effect of the legislation is undermined. While Recall could still exercise rights of redress under the ATIA to challenge a second decision that led to the discontinuance of section 44 proceedings, the delay in finally resolving whether exemptions applied would be extensive on the facts of this case.

Moreover, since the Information Commissioner was a party adverse in interest to the third party that had initiated the section 44 proceedings, the Minister’s second decision did not fully eliminate the “lis” in issue.

Recall has not been involved in these proceedings to date. In fairness, the Minister should advise Recall that she will be taking a different and adverse position in this litigation.

The decision is not available on the Federal Court Decisions website. Copies may be obtained from the Federal Court Registry.

10. Recall Total Information Management Inc. v. Canada (National Revenue)

Federal Court of Canada
Citation:

2015 FC 1128

Date of decision:

Sections of the Access to Information Act(ATIA):

Paragraphs 20(1)(a), (b) and (c) and section 44

  • Paragraph 20(1)(a) – Third party information, trade secrets
  • Paragraph 20(1)(b) – Third party information, financial, commercial, scientific or technical information
  • Paragraph 20(1)(c) – Disclosure of information resulting in material financial loss or gain
  • Section 44 – Third party may apply for a review
Summary

Where a Contract Amendment price inclusive of HST is publicly available, it is relatively simple mathematics to arrive at what is substantially the Contract Amendment price exclusive of HST. Therefore, the price exclusive of HST is sufficiently publicly disclosed to preclude reliance on subsection 20(1) of the Access to information Act (ATIA).

Despite evidence indicating that the third party’s actions were inconsistent with the actions of a person who intended to treat, and did in fact treat, information as secret and requiring special treatment against disclosure, information detailing a step-by-step process for how a third party contractor will meet contractual obligations was found to be exempt from disclosure under paragraph 20(1)(c) of the ATIA.

The third party retained its proprietary interest in the process and established through affidavit evidence that release of the records would cause harm because competitors could recreate the technology developed by the third party’s R&D work and potentially use this information in bidding on other government contracts to undermine the third party’s service or pricing (especially given that total pricing has been publicly disclosed).

Issues
  • Whether a step–by-step description outlining the process to scan 2D barcodes into a third party contractor’s computer base in order to satisfy a government institution’s contractual requirements is exempt from disclosure under paragraphs 20(1)(a), (b) or (c) of the ATIA.
  • Whether the public disclosure of a Contract Amendment price inclusive of HST effectively discloses the Contract Amendment price exclusive of HST.
Facts

On October 26, 2012, the Canada Revenue Agency (CRA) published a tender for records management services associated with the secure off-site storage and management of information records in paper-based, microform and electronic storage media forms, on an “as and where required basis”. As a consequence of the tender bids being non-compliant, a second tender was issued. Recall won the second tender on May 2, 2013.

As a result of discussions between CRA and Recall, it became apparent that CRA had other needs which were not addressed in the Initial Contract. The parties then agreed to a Contract Amendment, which is the subject of this litigation.

Recall received notice of an access to information request in accordance with section 27 of the ATIA. It ignored the notice and, in the absence of any evidence, the Minister through the CRA decided to release the information requested subject to the redaction of unit pricing.

CRA gave Recall notice that it intended to release the subject information in the absence of a request for court review under section 44 of the ATIA. Recall then filed the relevant section 44 application and produced evidence to support its position that the information to be released was subject to paragraph 20(1)(a), (b) and (c) exemptions from disclosure.

Upon review of Recall’s evidence, the Minister changed her opinion, formed the view that some of the information should not be disclosed and purported to make a second decision to release much less information than originally contemplated.

As the result of a request for a ruling by the Information Commissioner, this Court in Recall Total Information Management Inc. v. Canada (National Revenue), 2015 FC 848, held that the Minister could not issue a second decision but could change its position in the litigation. As a result, the parties filed amended Memoranda of Fact and Law and proceeded with the section 44 review.

The document proposed to be released includes both the new contract price and a description of a step-by-step process to scan barcodes into Recall’s computer base. Whereas the Initial Contract set forth what Recall was to do, the Contract Amendment described how Recall was to do it.

Recall says in part that insertion of the step-by-step process in the Contract Amendment was an “inadvertent error”; however, it took no steps to correct the error, nor did it demand of CRA any corrective steps to address the error.

Recall takes the position that the information on these pages, as well as the new price – a large part of the Contract Amendment – is exempt from disclosure pursuant to s 20(1)(a), (b) and/or (c) of the ATIA. Recall claims that pages 34-40 of the Records disclose trade secrets (“yellow lined”). It submits that the information has industrial application and was built into Recall’s proprietary tool known as Re Quest Web for purposes of the Contract Amendment and is proprietary to Recall. It further claims that it acted with intention to keep the information confidential and expected CRA to likewise keep the information confidential. Finally, it says that it has an economic interest in maintaining secrecy because of the competitive edge it has, both with government and a wider market, by virtue of the process it developed.

Decision

The application was allowed in part. The portions of the Contract Amendment marked in yellow are to be exempted from disclosure while the Contract Amendment price must be disclosed.

Submissions as to costs were made. In the circumstances, the most equitable result is that each party bears its own costs except that Recall shall pay costs to both the Minister and the Information Commissioner on Recall’s motion to file additional affidavits.

Reasons
Whether the step–by-step description outlining the process to scan 2D barcodes into a third party contractor’s computer base is exempt from disclosure under section 20 of the ATIA.

Section 20(1)(a) – Trade secrets

The Court noted that in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at paras. 112, 109, the Supreme Court of Canada defined “trade secret” as “being a plan or process, tool, mechanism or compound which possesses each of” the following four characteristics:

  • the information must be secret in an absolute or relative sense (i.e. known only by one or a relatively small number of persons);
  • the possessor of the information must demonstrate that he has acted with the intention to treat the information as secret;
  • the information must be capable of industrial or commercial application;
  • the possessor must have an interest (e.g. an economic interest) worthy of legal protection.

Upon review of the Records, the Court determined that the step-by-step process meets the first element of being “a plan, or process, tool mechanism or compound” and that Recall had made out that the information was secret. The process was internally designed and knowledge of it was limited to Recall employees. Importantly, only employees of Recall’s IT department had access to the script and code, neither of which was provided to CRA.

Where Recall failed was in its treatment of the information as secret. While Recall took some steps to treat the information as secret, its efforts were inadequate. Other than the standard, bottom-of-email disclaimer of confidentiality, Recall took no steps, even in the Contract Amendment, to mark the information as secret or confidential. It provided CRA with a Word version of the document upon request, an action inconsistent with an intention of secret treatment. Fatally, Recall took no steps to protect the information when it was “inadvertently” included in the Contract Amendment. Recall’s silence and inaction until the commencement of this litigation was inconsistent with the actions of a person who intended to treat, and did in fact treat, the information as secret and requiring special treatment against disclosure.

Section 20(1)(b) – Commercial/Technical – Confidential treatment

With respect to whether the information is “confidential information treated in a confidential manner” as described in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 FTR 194 at paragraph 42, 16 ACWS (3d) 45, and adopted in Merck Frosst at paragraph 133, the criteria for “confidential information” is:

  • that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own;
  • that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed;
  • that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication.

The test is an objective one, and merely repeating the words of statute or asserting confidentiality without concrete evidence of such treatment is not sufficient.

The Court concluded that there is no evidence to suggest that the Records were publicly available nor was there any question that the information was supplied to the government by the “third party”.

As to the issue of whether the information originated and was communicated in a reasonable expectation of confidence, Recall may have assumed as much, but it did not behave in a manner consistent with that assumption. Consistent with his findings in relation to the application of paragraph 20(1)(a) of the ATIA, the Court found that Recall’s actions were significantly deficient, on an objective view, with that of a party who considered the information confidential.

On the question of whether the relationship is “not contrary to the public interest and will be fostered for public benefit by confidential communication”, the Court determined that Recall’s submissions were bereft of any indication of how the relationship would be fostered for the public benefit. It was not for the Court to substitute arguments supporting the public benefit arising from confidential treatment. The Court held that Recall did not make out a case for exemption from disclosure under paragraph 20(1)(b) of the ATIA.

Section 20(1)(c) - Harm from disclosure

The thrust of Recall’s position is that the step-by-step process is Recall’s property and that competitors could use that information to commercially harm Recall’s position with CRA. This would arise most particularly in the bidding for contract renewal.

The burden imposed on Recall to establish harm is set out by this Court in AstraZeneca at paragraph 46 (adopted in principle in Merck Frosst at paragraph 204): “Recognizing the inherently speculative nature of proof of harm does not however relieve a party from putting forward something more than internally held beliefs and fears…”. There must be a clear and direct linkage between the disclosure of specific information and the harm alleged.

The Court determined that Recall made out its case on the issue of harm. The release of certain parts of the Records would undermine Recall’s position in future negotiations with CRA and others because of the advantage competitors would gain from disclosure of how Recall addressed CRA’s problems. Further, release of information on the process would allow competitors (of which there is a small number – 1 or 2) to recreate the technology developed by Recall’s R&D work. The evidence supporting this competitive loss is well described and does more than merely repeat the words of the statute. The evidence discloses how software engineers could replicate Recall’s technology and potentially use this knowledge in bidding on other government contracts.

Whether the Contract Amendment price is publicly available (as to the contract price).

The Court determined that Recall failed to make out its objection to disclosure of the contract Amendment price since that price (inclusive of HST) was published on CRA’s website on or about May 26, 2014. The information objected to at page 56 of the Records discloses the Contract Amendment price minus HST. Since it is relatively simple mathematics to arrive at what is substantially the price, the Court held that the price is sufficiently public to dispose with any objection from Recall.

The decision is available on the Federal Court Decisions website at Recall Total Information Management Inc. v. Canada (National Revenue), 2015 FC 1128.

11. Sheldon v. Canada (Health)

Federal Court of Canada
Citation:

2015 FC 1385

Date of decision:

Sections of the Access to Information Act (ATIA):

Sections 41 and 53

  • Section 41 – Review by Federal Court
  • Section 53 – Costs
Summary

The prerequisites to judicial review under section 41 of the Access to Information Act (ATIA) reflect the common law doctrine that, absent exceptional circumstances, all adequate and alternate remedies must be pursued before resorting to an application for judicial review. The complaint scheme to the Information Commissioner (the Commissioner) is one such adequate and alternative remedy.

Granting review proceedings, to the extent they concern a deemed refusal to respond to an access request, would have no practical effect on the rights of the parties where a deemed refusal to respond to an access request is the only issue that was investigated and reported on by the Commissioner and a response has since been provided.

The Court cannot rule upon the application of any exemption or exclusion claimed under the ATIA if the Commissioner has not investigated and reported on the claim to the exemption or exclusion.

Issues
  • Whether the release of the requested records in January 2015 has had the effect of rendering Ms. Sheldon’s review proceeding moot, even if the records were released in a redacted form.
  • Whether Ms. Sheldon’s review proceeding is premature.
  • Costs.
Facts

This is a review proceeding brought under section 41 of the ATIA in relation to health product inspection records under the control of the Department of Health Canada (Health Canada).

Ms. Sheldon had filed an access to information request under the ATIA seeking the release of “all correspondence…” over a period extending from July 2006 to January 2012.

The statutory deadline for Health Canada to respond to the access request was April 8, 2012. On April 4, 2012, Health Canada asked for a 120-day extension, extending the deadline to reply to the access request to August 7, 2012. However, this deadline could not be met. Health Canada claimed it needed more time to process the request as it required the processing and review of over 3,000 pages of documents as well as external consultations with three governmental entities. According to the record, these consultations were initiated in May 2013 and completed in March 2014. To that point, Ms. Sheldon’s file within Health Canada’s Access to Information and Privacy Office had changed hands five times.

On April 3, 2014, Ms. Sheldon filed a complaint with the Commissioner, claiming that Health Canada had failed to respond to the access request within the time frames set out in the ATIA and was therefore deemed to have refused access. Ultimately, the Commissioner concluded that as a result of her intervention, Health Canada had agreed to respond to the access request by October 31, 2014, which the Commissioner held to be a reasonable commitment in the circumstances of the case.

Due to alleged unexpected technical difficulties, the October 31, 2014 deadline could not be met. The commitment date was first changed to November 18, 2014 and then to mid-December 2014, and yet again to January 7, 2015.

On December 15, 2014, Ms. Sheldon filed the current proceedings, seeking an order from this Court enjoining Health Canada, in the context of the deemed refusal to process the request, to release the requested records. On January 29, 2015, Health Canada responded to the request by disclosing to Ms. Sheldon a redacted version of these records.

Ms. Sheldon filed her Memorandum of Fact and Law in June 2015 in support of this review proceeding where she asked the Court to order the release of an unredacted version of the requested records. Ms. Sheldon had previously filed a further complaint with the Commissioner regarding Health Canada’s redactions. However, there is no evidence on record as to the status of that complaint.

Decision

The judicial review application was dismissed, without costs.

Reasons
Whether the release of the requested records in January 2015 has had the effect of rendering Ms. Sheldon’s review proceeding moot, even if the records were released in a redacted form.

The three prerequisites that a person must satisfy before applying to the Court under section 41 reflect the common law doctrine that, absent exceptional circumstances, all adequate and alternative remedies must be pursued before resorting to an application for judicial review. The complaint scheme to the Information Commissioner is one such adequate and alternative remedy.

The Federal Court’s jurisdiction has been interpreted narrowly so that once the requested information has been provided, “there is no other remedy for the Court to provide” (Frezza v. Canada (National Defence), 2014 FCA 30). In the case at bar, the deemed refusal to respond to the access request is the only issue that was investigated and reported on by the Information Commissioner and the only issue that is – and can be at this stage – before the Court.

Whether Ms. Sheldon’s review proceeding is premature.

The Court held that Ms. Sheldon’s demand for an order enjoining Health Canada to disclose an unredacted version of the requested records is premature.  

In a review proceeding initiated under section 41 of the ATIA on the basis of a complaint of a deemed refusal, the Court cannot rule upon the application of any exemption or exclusion claimed under the ATIA if the Information Commissioner has not investigated and reported on the claim to the exemption or exclusion.

The prerequisite that Ms. Sheldon had to satisfy before applying to the Court under section 41 of the ATIA regarding the exemptions and exclusions applied by Health Canada to the requested records, that is the issuance of a report from the Information Commissioner, has not been met. Ms. Sheldon’s challenge to Health Canada’s decision not to disclose the “full” record is therefore premature. 

Costs

According to subsection 53(1) of the ATIA, the costs of all proceedings in the Court under the ATIA shall be at the discretion of the Court and shall follow the event unless the Court orders otherwise. Subsection 53(2) of the ATIA provides that it is open to the Court to award costs to Ms. Sheldon if he/she has not been successful in the result, if it finds that the review proceeding “raised an important new principle in relation to [the] Act”.

The present case does not raise an important new principle in relation to the ATIA. That being said, in the particular circumstances of this case, each party shall bear its costs.

The decision is available on the Federal Court Decisions website at Sheldon v. Canada (Health), 2015 FC 1385.

12. UCANU Manufacturing Corp. v. Defence Construction Canada

Federal Court of Canada
Citation:

2015 FC 1001

Date of decision:

Sections of the Access to Information Act (ATIA):

Subsections 19(1) and (2), paragraph 20(1)(b), subsection 24(1), sections 25, 41, 48 and 49

  • Subsection 19(1) – Personal information
  • Subsection 19(2) – When disclosure authorized
  • Paragraph 20(1)(b) – Third party information, financial, commercial, scientific or technical information
  • Subsection 24(1) – Statutory prohibitions against disclosure
  • Section 25 – Severability
  • Section 41 – Review by the Federal Court
  • Section 48 – Burden of proof
  • Section 49 – Order of Court where no authorization to refuse disclosure found
Sections of the Privacy Act (PA): Section 3(k)
  • Section 3(k) – Information about an individual who is or was performing services under contract for a government institution
Other provisions:

Defence Production Act: Section 30

Summary

The general definition of “personal information” can include information associated with an individual in his or her professional, official or business capacity. The names and signatures of private sector employees on a Joint Venture Agreement (JVA) and as witnesses to a Tender Form fall within the general definition of “personal information”.

The paragraph 3(k) exclusion of information “that relates to the services performed” from the definition of “personal information” did not apply because neither the signing of the JVA nor the witnessing of the Tender Form can be characterized as related to the services performed under the construction contract in question.

The Court should be reluctant to review a discretionary decision under subsection 19(2) of the Access to Information Act (ATIA) on the basis of facts that were not before the decision-maker, as this would effectively require the Court to make the discretionary decision itself, rather than considering the reasonableness of the decision by the government institution.

When refusing disclosure under paragraph 20(1)(b) of the ATIA, “actual direct evidence” of the confidential nature of the information at issue is required. Unsworn evidence about the confidentiality of records during the tender process falls short of what is required to establish confidentiality after the tender process has run its course.

On the current state of the applicable jurisprudence, Defence Construction Canada is not entitled to rely on an additional (mandatory) exemption first raised in the week preceding the hearing.

Issues
  • What is the standard of review?
  • Whether the information withheld on the basis of subsection 19(1) of the ATIA, namely the signatures of the parties to the Joint Venture Agreement and the name and signature of the witness to the Tender Form, properly constitutes “personal information” as defined in section 3 of the Privacy Act.
  • Whether subsection 19(2) of the Privacy Act (sic, should be ATIA) applies to the signatures of the parties to the Joint Venture Agreement, on the basis that the information is publicly available and, if so, whether Defence Construction Canada reasonably exercised its discretion under subsection 19(2) of the ATIA to withhold this information.
  • Whether the information withheld under subsection 20(1)(b) of the ATIA, namely the redacted portions of the Joint Venture Agreement and covering letter, is confidential commercial information of a third party such that Defence Construction Canada was authorized to refuse to disclose it.
  • Whether the decision of Defence Construction Canada was reasonable in not severing and disclosing additional portions of the disputed records under section 25 of the ATIA.
  • Whether Defence Construction Canada should be permitted to rely on the additional statutory exemption (section 24) raised at the hearing stage in the proceeding.
Facts

This is an application brought pursuant to section 41 of the ATIA, concerning a request for access to certain records under the control of Defence Construction (1951) Limited, a.k.a. Defence Construction Canada. The context is a public procurement for construction of a maintenance hangar in Trenton, Ontario. Defence Construction Canada is a parent Crown corporation within the meaning of section 83 of the Financial Administration Act, and a government institution within the meaning of the ATIA.

UCANU Manufacturing Corp. (UCANU) is a corporation incorporated under the laws of the province of Alberta. On July 30, 2012, UCANU made an access to information request to “National Defence and the Canadian Forces” seeking information relating to a contract between Defence Construction Canada and “Graham Construction and Engineering a JV”. The Department of National Defence transferred the request to Defence Construction Canada.

Defence Construction Canada provided UCANU with a CD containing 3650 pages of records in response to the request and further advised UCANU that remaining documents would not be released until third party consultations were completed. Following consultation with The Graham Group (which appears to represent the counterparty to the relevant contract with Defence Construction Canada), Defence Construction Canada released to UCANU a package of 17 redacted pages of records. Defence Construction Canada’s correspondence advised UCANU that it had exempted some information pursuant to subsection 19(1) and paragraph 20(1)(b) of the ATIA. As further detailed below, these exemptions relate, respectively, to personal information as defined in the Privacy Act, and confidential commercial information of a third party.

On January 11, 2013, the Office of the Information Commissioner of Canada (OIC) registered a complaint from UCANU concerning Defence Construction Canada’s application of the exemptions. During the subsequent investigation by the OIC, Defence Construction Canada consulted with The Graham Group in relation to the request.

The OIC conducted its investigation and did not agree, in some cases, with Defence Construction Canada’s application of the exemptions in subsection 19(1) and paragraph 20(1)(b) of the ATIA. Defence Construction Canada agreed to reconsider its positions and, on December 3, 2013, it provided UCANU with a final release package in which some of the previously redacted records were disclosed. On February 11, 2014, the OIC issued its investigation report concluding that, with the benefit of the disclosure in the final release package, Defence Construction Canada had properly applied these exemptions.

On March 19, 2014, UCANU filed this application for review of this matter. The remaining redactions, which are challenged by UCANU in this application, are:

  • portions of a Joint Venture Agreement dated February 1, 2011 among Graham Construction and Engineering LP, Graham Construction and Engineering Inc. and Jardeg Construction Services Ltd.;
  • a covering letter dated March 25, 2011 from The Graham Group to Defence Construction Canada, which accompanied the Joint Venture Agreement;
  • the signatures of employees of Graham Construction and Engineering LP, Graham Construction and Engineering Inc. and Jardeg Construction Services, who signed the Joint Venture Agreement; and
  • the name and signature of a witness to the Tender Form signed by Graham Construction and Engineering, a JV and submitted to Defence Construction Canada in the course of Defence Construction Canada’s tender process for the contract for construction of the maintenance hangar.

Defence Construction Canada’s counsel requested an adjournment of the hearing, on the basis that she had recently taken carriage of this matter and identified an exemption under the ATIA and Defence Production Act (DPA) that had not previously been relied on by Defence Construction Canada. This exemption, subsection 24(1) of the ATIA in conjunction with section 30 of the DPA, applies to information with respect to an individual business that has been obtained under or by virtue of the DPA. Defence Construction Canada sought an adjournment to permit further materials including supplementary submissions by the parties on this new issue to be placed before the Court prior to the hearing.

The Court denied the request for an adjournment, on the basis that the request did not raise exceptional and unforeseen circumstances, including those that are outside the control of a party or its counsel. However, the Court advised that it would hear counsel at the hearing, including on the possibility of supplementary written submissions following the hearing, and on the following two issues raised by the parties’ correspondence with the Court: whether Defence Construction Canada should be permitted to rely on the additional statutory exemption at this stage in the proceeding; and, if so, the effect of such exemption on the merits of this application.

The parties argued these issues at the hearing and confirmed to the Court at the conclusion of the hearing that the issues had been sufficiently canvassed, such that no further written submissions were necessary.

Decision

The application was allowed in part. Defence Construction Canada was authorized to refuse to disclose the name and signatures at issue but was ordered to disclose the contents of the Joint Venture Agreement and covering letter. There was no order as to costs.

Reasons
What is the standard of review?

The Court agreed with the parties that the standard of review for the application of subsection 19(1) and paragraph 20(1)(b) of the ATIA is correctness.

The parties also agreed that the standard of review for a discretionary decision whether to disclose information under subsection 19(2) of the ATIA is reasonableness (Information Commissioner of Canada v. Canada (Natural Resources), 2014 FC 917 at para. 26).

Whether the information withheld on the basis of subsection 19(1) of the ATIA, namely the signatures of the parties to the Joint Venture Agreement and the name and signature of the witness to the Tender Form, properly constitutes “personal information” as defined in section 3 of the Privacy Act.

Noting that the authorities do not definitively establish whether signatures constitute “personal information”, the Court determined that the names and signatures at issue in the case at hand do fall within the general definition of “personal information”, as information about an identifiable individual. There is no general exclusion from the definition for information associated with an individual in his or her professional, official or business capacity.

The Court agreed with UCANU that Defence Construction Canada has the burden of establishing that the requested information does not fall within the exception to the definition of “personal information” in paragraph 3(k) of the Privacy Act. The Court found that Defence Construction Canada met this burden by virtue of the nature of the information at issue and a plain reading of the language of paragraph (k). Paragraph (k) exempts from the definition of “personal information” information about an individual who is or was performing services under contract for a government institution “that relates to the services performed”. The Court held that neither the signing of the JVA nor the witnessing of the Tender Form can be characterized as related to the services performed under the construction contract with Defence Construction Canada.

Defence Construction Canada was therefore correct in reaching the decision that it was authorized under subsection 19(1) of the ATIA to refuse to disclose the witness’s name and three signatures at issue.

Whether subsection 19(2) of the Privacy Act [sic, should be ATIA] applies to the signatures of the parties to the Joint Venture Agreement, on the basis that the information is publicly available and, if so, whether Defence Construction Canada reasonably exercised its discretion under subsection 19(2) of the ATIA to withhold this information.

In its affidavit filed in support of this application, UCANU adduced evidence that the signatures of the two signatories to the JVA are publicly available on the Internet. Defence Construction Canada argued that this evidence was only recently acquired and was not relevant to assessing whether Defence Construction Canada reasonably exercised its discretion under subsection 19(2) because there is no evidence this information was before or available to Defence Construction Canada when it responded to UCANU’s request.

The Court applied Information Commissioner of Canada v. Canada (Natural Resources), 2014 FC 917 at paras. 52-61 to decline to interfere with Defence Construction Canada’s decision under subsection 19(2), noting that the Court should be reluctant to review a discretionary decision on the basis of facts that were not before the decision-maker, as this would effectively require the Court to make the discretionary decision itself, rather than considering the reasonableness of the decision by the government institution.

Whether the information withheld under subsection 20(1)(b) of the ATIA, namely the redacted portions of the Joint Venture Agreement and covering letter, is confidential commercial information of a third party such that Defence Construction Canada was authorized to refuse to disclose it.

The Court determined that there was insufficient evidence for Defence Construction Canada to satisfy its burden of showing that the contents of the JVA were confidential in nature and were treated consistently in a confidential manner by the third party.

Defence Construction Canada relied on unsworn statements made to it by the third party after UCANU initiated its ATIA request. There was no evidence that the third party communicated to Defence Construction Canada, at the time the JVA was provided, that it had an expectation of confidentiality. While an express statement of an expectation of confidentiality is not determinative, there is little in the case at hand that can be characterized as actual direct evidence of the confidential nature of the information at issue. Evidence about the confidentiality of records during the tender process falls short of what is required to establish confidentiality after the tender process has run its course.

Whether the decision of Defence Construction Canada was reasonable in not severing and disclosing additional portions of the disputed records under section 25 of the ATIA.

Given the Court’s conclusion with respect to subsection 20(1)(b), there was no need to consider the possibility of severance under section 25 in relation to the content of the JVA Agreement and the covering letter.

The Court concluded that Defence Construction Canada was authorized to refuse to disclose the name and signatures that are at issue and that no possibility of severance applies within those records.

Whether Defence Construction Canada should be permitted to rely on the additional statutory exemption (section 24) raised at the hearing stage in the proceeding.

The Court held that based on the current state of the applicable jurisprudence, Defence Construction Canada is not entitled to rely on the additional exemption raised. The Court therefore did not consider the parties’ arguments on the substantive issue of the application of that exemption.

The decision is available on the Federal Court Decisions website at UCANU Manufacturing Corp. v. Defence Construction Canada, 2015 FC 1001.

Federal Court of Appeal

13. Canada (Office of the Information Commissioner) v. Canada (Minister of National Defence)

Federal Court of Appeal
Citation:

2015 FCA 56

Date of decision:

March 3, 2015

Section(s) of the Access to Information Act (ATIA):

Sections 7, 9, 10, 37, 41, and 42

  • Section 7 – Notice where access requested
  • Section 9 – Extension of time limits
  • Section 10 – Where access is refused
  • Section 37 – Findings and recommendations of Information Commissioner
  • Section 41 – Review by Federal Court
  • Section 42 – Information Commissioner may apply or appear
Summary

A deemed refusal arises whenever the initial 30-day time limit has expired without access being given, in circumstances where no legally valid extension has been taken. It follows that a right to judicially review the validity of an extension of time arises pursuant to sections 41 and/or 42 of the Access to Information Act (ATIA) upon the expiry of the 30-day time limit, subject to a complaint to the Information Commissioner being filed and an investigation report being completed.

A government institution confronted with a request involving a great number of documents and/or necessitating broad consultation must make a serious effort to assess the required duration of time necessary to respond to the request and the estimated calculation must be sufficiently rigorous, logical and supportable to pass muster under reasonableness review.

Issues
  • Whether the Federal Court has jurisdiction under section 41 or 42 of the ATIA to review a decision by a government institution under subsection 9(1) to extend the time limit set out in section 7.
  • If the first issue is answered in the affirmative, whether the extension taken by the Department of National Defence (DND) was valid.
Facts

This is an appeal brought by the Information Commissioner of Canada (the Commissioner) from a decision of the Federal Court (2014 FC 205) wherein the Federal Court judge dismissed her application for judicial review of a decision by DND to assert a time extension of 1,110 days.

On February 3, 2011, a lawyer acting for his clients (the requester) requested access from DND to records relating to the sale of certain military assets.

On March 4, 2011, DND notified the requester that, pursuant to subsection 9(1) of the ATIA, it was extending the 30-day time limit set out in section 7 by 1,110 days in order to deal with the request. In response, the requester communicated his intent to file a complaint with the Commissioner and proceeded to do so.

On March 29, 2011, the Commissioner provided notice of her intention to investigate pursuant to section 32 of the ATIA. During the course of the investigation, DND informed the Commissioner that 230 of the 1,110 days had been taken under paragraph 9(1)(a) to deal with the large number of records involved and that the remaining 880 days had been taken under paragraph 9(1)(b) to complete the necessary consultations with third parties.

In May 2012, DND informed the Commissioner that it had identified 2,400 pages requiring review and consultation. DND also provided several reasons for the length of the extension taken, citing among other things the need to review the documents for matters of solicitor-client and litigation privilege, the occurrence of a major and unprecedented software malfunction in the department’s access to information unit, and the need to consult with three government departments, being Public Works and Government Services Canada (PWGSC), the Department of Justice (DOJ), and the Department of Foreign Affairs and International Trade (DFAIT). DND advised that DFAIT might in turn be required to consult with foreign governments.

On July 9, 2012, DND sent the relevant records to the three consulting departments. While PWGSC and DOJ provided a response to DND by August 15, 2012, DFAIT responded only on August 31, 2012, and notified DND that it would need another 120 days to complete its consultations.

On October 18, 2012, the Commissioner reported the results of her investigation to DND. DND was found to have breached its duty under subsection 4(2.1) of the ATIA, as it failed to make every effort to process the request in a timely manner. DND’s asserted extension was also found to be invalid, as the criteria for an extension under paragraph 9(1)(a) were not all met, and the time taken under paragraph 9(1)(b) was unreasonably long.

Given the Commissioner’s finding of invalidity, she concluded that the applicable time limit for meeting the requester’s request remained March 4, 2011, 30 days past the point in time at which the original request had been made. Because no response had been received by that date, DND was found to have been in a state of deemed refusal pursuant to subsection 10(3) of the ATIA.

The Commissioner recommended that DND commit to respond by February 28, 2013. On November 6, 2012, DND informed the Commissioner that it could not so commit, as the consultations in question were external and beyond its control.

On January 11, 2013, acting under section 42 of the ATIA, the Commissioner filed an application for judicial review in Federal Court. The Commissioner sought a declaration that DND was in a state of deemed refusal for having failed to give access within the time limits set out in the ATIA and an order directing DND to respond to the request within a 30-day period.

The Federal Court determined that where a government institution takes an extension under subsection 9(1) of the ATIA, it will not enter a state of deemed refusal sufficient to engage the Court’s jurisdiction under sections 41 or 42 unless and until it fails to give access by the date on which the asserted extension expires.

Decision

The Court of Appeal found that the Federal Court had the jurisdiction to entertain the Commissioner’s application for judicial review of the extension taken by DND.

It further declared that the extension taken by DND was not valid, and that the request had entered into a state of deemed refusal pursuant to subsection 10(3) of the ATIA on March 5, 2011, upon the expiration of the 30-day time limit set out in section 7 of the ATIA.

Reasons
Whether the Federal Court has jurisdiction under section 41 or 42 of the ATIA to review a decision by a government institution under subsection 9(1) to extend the time limit set out in section 7.

Previous Federal Court decisions (PSAC v. Canada (Attorney General), 2011 FC 649; Canada (Attorney General) v. Canada (Information Commissioner), 2002 FCT 136; X v. Canada (Minister of National Defence), [1991] 1 F.C. 670, 41 F.T.R. 73) finding that the Court has no jurisdiction to review extensions of time ought not to be followed. The reasoning does not confront or take into account the requirement that a valid extension must comply with the statutory conditions set out in subsection 9(1) of the ATIA.

As a matter of statutory construction, the Federal Court has jurisdiction to entertain an application for judicial review when the initial 30-day time limit has expired without access being given, subject to a complaint being filed and an investigation report being completed.

Whether the extension taken by DND was valid.

Read together, what the English and French text of subsection 9(1)(a) and 9(1)(b) contemplate is that the extension be reasonable or justified in the circumstances and that a demonstration be made that unless the extension is taken, providing access will result in unreasonable or undue interference with the “operations of the government institution” in the case of paragraph 9(1)(a), and that it is not reasonable, or practically possible, to expect that the necessary consultations can be completed in the case of paragraph 9(1)(b).

An effort must be made to demonstrate the link between the justification advanced and the length of extension taken. In the case of paragraph 9(1)(a), this will mean not only demonstrating that a large number of documents are involved, but that the work required to provide access within any materially lesser period of time than the one asserted would interfere with operations. The same type of rational linkage must be made pursuant to paragraph 9(1)(b) with respect to necessary consultations.

A government institution confronted with a request involving a great number of documents and/or necessitating broad consultation must make a serious effort to assess the required duration, and that the estimated calculation be sufficiently rigorous, logical and supportable to pass muster under a reasonableness review.

Simply dividing the number of pages requested by the number of pages involved in the average DFAIT consultation, and applying the resulting quotient (8) as a multiplier has on the face of it a deficient logic and falls short of demonstrating that a genuine attempt was made to assess the required duration.

The Federal Court of Appeal determined that DND’s treatment of the matter fell short of establishing that a serious effort was made to assess the duration of the extension. As such, the Court found that the extension taken by DND did not meet the requirements of subsection 9(1) of the ATIA and was not valid.

The decision is available on the Federal Court of Appeal Decisions website at Canada (Office of the Information Commissioner) v. Canada (Minister of National Defence), 2015 FCA 56.

Privacy Act

Federal Court of Appeal

14. Lukács v. Canada (Transport, Infrastructure and Communities)

Federal Court of Appeal
Citation:

2015 FCA 140

Date of decision:

June 5, 2015

Sections of the Privacy Act:

Subsections 8(1) and 69 (2)

  • Subsection 8(1) – Disclosure of personal information
  • Subsection 69(2) – Section 7 and 8 of the Privacy Act do not apply to personal information that is publicly available.
Other legislation:

Canadian Charter of Rights and Freedoms: Section 2(b)

Summary

The Canadian Transportation Agency (the Agency) is subject to the open court principle and the Privacy Act (the Act). Once the Agency places documents on its public record pursuant to its rules of procedure, those documents become publicly available for the purposes of subsection 69(2) of the Act. The limitations on disclosure of personal information contained in subsection 8(1) of the Act are no longer applicable.

“Publicly available” means available to or accessible by the citizenry at large.

It is open to the parties to request a confidentiality order in relation to personal information but in this case, no such request was made.

Issues
  • Whether subsection 8(1) of the Act requires or permits the Agency to refuse to provide the Unredacted Material to Dr. Lukács (the Refusal Issue).
  • If the answer to the first issue is in the affirmative, whether subsection 8(1) of the Act infringes upon Dr. Lukács’ rights under paragraph 2(b) of the Charter (the Constitutional Issue).
Facts

Dr. Lukács, a Canadian air passenger rights advocate, brought this application for judicial review challenging the Agency’s refusal to provide him with an unredacted copy of the materials that the Agency had placed on its public record (the Unredacted Materials) in relation to a dispute resolution proceeding between Air Canada and a family whose flight from Vancouver to Cancun had been delayed (the Cancun Matter).

While acknowledging that it was subject to the open court principle, the Agency refused Dr. Lukács’ request for an unredacted copy of the materials on its Public Record, asserting that subsection 8(1) of the Privacy Act prevented it from disclosing personal information under its control. Importantly, none of the Unredacted Materials filed in the Cancun Matter were subject to a confidentiality order, which the Agency was empowered to make.

Dr. Lukács challenged the Agency’s refusal to provide the Unredacted Materials on a number of bases. Among his arguments, he asserted that because the requested materials had been placed on the Agency’s Public Record in accordance with subsection 23(1) of the Canadian Transportation Agency General Rules (the Old Rules), all of those materials, in an unredacted form, were publicly available within the meaning of subsection 69(2) of the Act and, as such, the prohibition on disclosure in subsection 8(1) of the Act does not apply to his request.

On November 21, 2014, Dr. Lukács filed a Notice of Constitutional Question in which he challenged the constitutional validity of certain provisions of the Act. Dr. Lukács contended that he has a constitutional right under the open court principle, protected by paragraph 2(b) of the Charter, to obtain the Unredacted Materials. He submitted that, if any provisions of the Act limit his right to obtain such documents, those provisions infringe paragraph 2(b) of the Charter. Further, Dr. Lukács argued that any infringement is not saved under section 1 of the Charter.

Decision

The Federal Court of Appeal, in a unanimous decision, allowed the application for judicial review and directed the Agency to provide the Unredacted Materials to Dr. Lukács. Dr. Lukács was awarded a moderate allowance in the amount of $750.00 plus reasonable disbursements payable by the Agency.

Reasons
Whether subsection 8(1) of the Act requires or permits the Agency to refuse to provide the Unredacted Materials to Dr. Lukács (the Refusal Issue).

All parties agreed that the open court principle applies to the Agency when it undertakes dispute resolution proceedings in its capacity as a quasi-judicial tribunal.

There is no doubt that the Agency falls within the definition of “government institution” in the Privacy Act. As such, the Agency is bound by the provisions of that legislation. This case raises interesting questions as to how the Agency’s adjudicative function – one part of its broad legislative mandate – is affected by the scope and application of the Act.

Both the Agency’s New Rules and the Old Rules empower the Agency to grant confidentiality protection in respect of documents that are filed by parties to the proceedings. It is undisputed that the documents that were requested by Dr. Lukács were placed by the Agency on its Public Record in the Cancun Matter and that the Agency made no confidentiality order in respect of any of those documents.

By virtue of subsection 69(2) of the Act, it is clear that the prohibition on disclosure of personal information in subsection 8(1) of the Act is inapplicable in respect of personal information that is publicly available. Thus, if the documents placed by the Agency on its Public Record in the Cancun Matter are publicly available, then the redactions made to them on behalf of the Agency were impermissible.

The term “publicly available” appears to be relatively precise and unequivocal. It was interpreted to mean available to or accessible by the citizenry at large. This interpretation is also consistent with the apparent context and purpose of subsection 69(2), which is to render the use and disclosure limitations that are contained in sections 7 and 8 of the Act inapplicable to personal information if and to the extent that the citizenry at large otherwise has the ability to access such information.

The meaning of “public record” is not precise and unequivocal. The Federal Court of Appeal adopted the meaning of “public record” in the judicial context, namely a documentary memorialization of the proceedings that have come before the Agency.

The act of placing documents on the Public Record is an act of disclosure on the part of the Agency. Thus, documents placed on the Agency’s Public Record are no longer “held” or “under the control” of the Agency acting as a “government institution”. From the time of their placement on the Public Record, such documents are held by the Agency acting as a quasi-judicial or court-like body, and from that time they become subject to the full application of the open court principle. It follows, in the Federal Court of Appeal’s view, that once on the Public Record, such documents necessarily become publicly available. As such, the limitation on their disclosure, contained in subsection 8(1) of the Act was no longer applicable by virtue of subsection 69(2) of the Act.

If the answer to the first issue is in the affirmative, whether subsection 8(1) of the Act infringes upon Dr. Lukács’ rights under paragraph 2(b) of the Charter (the Constitutional Issue).

The resolution of the Refusal Issue made it unnecessary for the Court to consider the Constitutional Issue.

The decision is available on the Federal Court of Appeal Decisions website at Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 140.

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