Info Source Bulletin 39A - Federal Court Decision Summaries

1. Blank v. Canada (Environment)

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.

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 August 30, 2010 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.

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”.

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

Citation:

2015 FC 1392

Date of decision:

December 18, 2015

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

Federal Court of Canada

Citation:

2015 FC 405

Date of decision:

March 31, 2015

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

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

Federal Court of Canada

Citation:

2015 FC 267

Date of decision:

March 3, 2015

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

Federal Court of Canada

Citation:

2015 FC 848

Date of decision:

July 9, 2015

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.

Federal Court of Canada

Citation:

2015 FC 1128

Date of decision:

September 29, 2015

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

Federal Court of Canada

Citation:

2015 FC 1385

Date of decision:

December 15, 2015

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

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.

Federal Court of Canada

Citation:

2015 FC 1001

Date of decision:

August 24, 2015

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

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

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