Info Source Bulletin 41A - Federal Court Decision Summaries
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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
In this section
- Federal Court of Canada
- Federal Court of Appeal
- Supreme Court of Canada
Federal Court of Canada
1. Air Transat A.T. Inc. v. Canada (Transport)
Federal Court of Canada
Citation: 2017 FC 910
Date of decision:
Provisions of the Access to Information Act: Paragraphs 20(1)(a), (b), (c) and (d); section 32; subsection 35(1) and section 37
- 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) – Third party information, disclosure to result in material financial loss or gain
- Paragraph 20(1)(d) – Third party information, disclosure to interfere with contractual or other negotiations of a third party
- Section 32 – Notice of intention to investigate
- Subsection 35(1) – Investigation in private
- Section 37– Findings and recommendations of Information Commissioner
The Court held that 21 pages of the report entitled “Transport Canada Regulatory Inspection of Air Transat AT Inc., November 12–14, 2003” are protected under paragraphs 20(1)(a) and 20(1)(b) of the Access to Information Act (ATIA).
In the alternative, the Court held that disclosure is nonetheless prevented by a stay of proceedings on the grounds of abuse of process and a lack of procedural fairness due to: (1) the failure by Transport Canada to give Air Transat an opportunity to be heard before changing its position regarding the disclosure of the documents regarding it; (2) the delays caused by the Information Commissioner; and (3) the significant prejudice suffered by Air Transat as a result of the delays.
The motion to strike was dismissed.
- Should the Court grant Air Transat’s motion to strike certain paragraphs and certain exhibits in support of the respondent Information Commissioner’s , and , affidavits?
- What is the applicable standard of review?
- Are pages 84 to 104 of the report exempt from disclosure under paragraphs 20(1)(a), (b), (c) and (d) of the ATIA?
- Did Transport Canada have an obligation to give Air Transat the opportunity to be heard before changing its position regarding the disclosure of the documents following Transport Canada’s receipt of the Information Commissioner’s recommendations?
- Should the Information Commissioner’s report be set aside due to (1) a breach of natural justice; (2) a lack of procedural fairness; (3) a lack of jurisdiction on the part of the Information Commissioner; (4) errors in the reasons supporting the Information Commissioner’s decision?
On , Transport Canada received an access to information request for records relating to their 2003 audit of Air Transat’s quality safety management system. Transport Canada refused to disclose the vast majority of the documents requested, including a report entitled “Transport Canada Regulatory Inspection of Air Transat AT Inc., November 12–14, 2003” (report).
Not having obtained disclosure of the desired documents, including the report, the requester filed a complaint with the Information Commissioner on . On , the Information Commissioner notified Transport Canada that a complaint had been filed and that an investigation would be conducted of its refusal to disclose the documents referred to in the access request.
The Information Commissioner’s investigation took over 10 years. During this time, the Information Commissioner sought representations from both Transport Canada and Air Transat. As well, the requester agreed to limit their request to the report, more specifically to pages 84 to 104 of the report. The Information Commissioner submitted her investigation report to Transport Canada on . In it, the Information Commissioner confirmed the merits of the access request and recommended that Transport Canada disclose the 21 pages of the report. In particular, the Information Commissioner determined that paragraphs 20(1)(a), (b), (c) and (d) did not apply to those pages.
Following receipt of the Information Commissioner’s investigation report, Transport Canada advised Air Transat that it had decided to follow the Commissioner’s recommendation to disclose the 21 pages of the report.
Air Transat sought judicial review under subsection 44(1) of the ATIA of Transport Canada’s decision to authorize the disclosure of 21 pages of the report, a decision that was based on the Information Commissioner’s recommendations following her investigation. Air Transat also sought, under sections 18 and 18.1 of the Federal Courts Act, to have the Information Commissioner’s investigation report set aside. Finally, Air Transat filed a motion to strike certain paragraphs and exhibits in support of two affidavits of the respondent Information Commissioner.
The appeal was allowed. The motion to strike was dismissed.
Should the Court grant Air Transat's motion to strike certain paragraphs and certain exhibits in support of the respondent Information Commissioner's , and affidavits?
The Court stated that it is the rule that an administrative tribunal whose decision is challenged in a judicial review may submit explanations and submissions regarding jurisdiction. As such, the Court held that the Information Commissioner was entitled to submit affidavits to explain to the Court the steps that she took in her investigation and the causes of the delays in her investigation, even if the information in some paragraphs and some supporting exhibits were not shared during the investigation. The Court also held that since the applicant was entitled to cross-examine the affiants regarding the information contained in the affidavits, dismissing the motion to strike does not result in a denial of justice or a breach of the rule of audi alteram partem.
What is the applicable standard of review?
The Court held that the standard of review applicable to an application for judicial review filed under subsection 44(1) of the ATIA is that of correctness and the Court must conduct a de novo review to determine if the institutional head correctly decided based on the law as it is set forth in the ATIA.
Regarding the issue of whether there was a breach of natural justice or the principles of procedural fairness, the Court held the standard to be that of correctness.
Regarding the issues of whether (1) the delays that occurred during the investigation were unreasonable to the extent of depriving the Information Commissioner of jurisdiction; and (2) there were errors in the reasons supporting the Information Commissioner’s decision, the Court held that these are questions of mixed fact and law and the applicable standard of review is therefore that of reasonableness.
Are the pages 84 to 104 of the report exempt from disclosure under paragraphs 20(1)(a), (b), (c) and (d) of the ATIA?
Paragraph 20(1)(a): trade secrets
The Court explained that the exception in paragraph 20(1)(a) is categorical and once the information contained in a document is classified as trade secrets, the exception applies, and the information cannot be disclosed. The Court applied the definition of trade secret set forth in Merck Frosst Canada Ltd. v. Canada (Health),  1 SCR 23, 2012 SCC 3 (CanLII). It explained that in that decision, the Supreme Court defined a trade secret as follows:
These elements are the same as in the Guidelines in evidence before us, which read:
- 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. and economic interest) worthy of legal protection.
These include that it is a plan or process, tool, mechanism or compound known only to its owner and his employees to whom it is necessary to confide it and that it usually is understood to mean a secret formula or process not patented but known only to certain individuals using it in compounding some article of trade having a commercial value.
Regarding the first criterion, the Court accepted that the report was only known to a limited number of people. It referred to the fact that the paper version was sent to the President and Director General of Air Transat and the electronic version is in a limited-access computer directory. The Court found the criterion met.
Regarding the second criterion, the Court stated that Air Transat had to show that it acted with the intention of treating the information as though it were secret. It referred to Air Transat’s claim that it only agreed to take part in the implementation of the safety management system with Transport Canada on condition that the confidentiality of the data and the report would be respected by Transport Canada. The Court found that the evidence shows an intent in that regard on the part of Air Transat and that the second criterion is also met.
As for the third and fourth criteria, the Court referred to Air Transat’s claim that the information was technical in nature, concrete application processes in the airline industry regarding the implementation of air safety systems and that the processes were processes developed by Air Transat and that could give its competitors a significant financial advantage. The Court stated that Air Transat invested a lot of time, money and expertise in creating and implementing an air safety system. It agreed with Air Transat’s claims that the information regarding this system has a practical application, and that its competitors would have a financial benefit over it if the information were disclosed. It found that the techniques and methods, and the identity of the personnel involved, would be available to them if the report were disclosed. The Court found that the third and fourth criteria are therefore met.
The Court also cited Pricewaterhousecoopers LLP v. Canada (Minister of Canadian Heritage), 2001 FCT 1040 (CanLII), 211 FTR 206 (FC), upheld by the Federal Court of Appeal in 2002, where it was concluded that the confidential methodology employed by the applicant to carry out certain parts of a government contract constituted a trade secret, even though the results were anticipated and not confidential. The Court found that the same is true in this case.
The Court held that in light of the confidential nature of the pilot project, the exchange of confidential information between Air Transat and Transport Canada for the purposes of the pilot project, the fact that each airline must nonetheless develop its own air safety system, and the fact that the expertise of the people involved and the methodology adopted (information available in the report) were used by Air Transat to create an effective and optimal air safety system for itself, the information in question is a trade secret and thus cannot be disclosed under paragraph 20(1)(a).
Paragraph 20(1)(b): confidential technical information
The Court described the four-part test for the applicability of paragraph 20(1)(b): (1) the information must be financial, commercial, scientific or technical in nature; (2) the information must be confidential; (3) the information must be supplied to a federal institution by a third party; and (4) the information must be treated consistently in a confidential manner by the third party (see Porter Airlines v. Canada (Attorney General), 2014 FC 392 (CanLII), at para 30, and Air Atonabee Ltd. v. Canada (Minister of Transport),  F.C.J. No. 453, 27 F.T.R. 194, at para 34).
The Court stated that Air Transat and Transport Canada agree that the report deals with technical and commercial information, and that it was always treated by Air Transat as being confidential in nature and that it agreed with this.
Regarding the criterion of the confidential nature of the information, the Court explained that there are three necessary criteria for information to be considered confidential: (1) it has not been previously disclosed to the public; (2) it was transmitted with a reasonable expectation that it would not be disclosed; and (3) the confidentiality is not contrary to the public interest (see Porter at para 44 and Air Atonabee at para 20).
The Court accepted Air Transat’s assertion that the information in the report was never publicly disclosed and that it remained between the President and CEO and certain employees in the corporate quality assurance department. Other employees of the company did not have access to it.
The Court also accepted Air Transat’s assertion that it had a reasonable expectation that the safety management system and the information in the report would remain confidential and that it would not have taken part in the program to implement the safety management system without an assurance that the information would remain confidential. The Court found that the facts show that Air Transat and Transport Canada had agreed that the information would remain confidential and cites the fact that Air Transat was voluntarily taking part in the pilot project and that many emails between Air Transat and Transport Canada show that they agreed to keep the information confidential. The Court also cites an excerpt from correspondence by the Information Commissioner as further evidence of this.
The Court put emphasis on the fact that the information was gathered during the pilot project in which Air Transat voluntarily participated and that this was not a regulatory inspection.
With respect to the criterion of the information being supplied by a third party, the Court noted that there was no regulatory inspection and that all observations by the inspectors in the report were based on information provided by Air Transat in a setting of confidentiality. It thus found that the inspectors’ observations were based on information provided by Air Transat, that these observations cannot be separated from the information provided and that regardless of the form in which it was eventually presented in the report by Transport Canada, the information came from Air Transat. The Court distinguished this from the situation in Porter where the inspectors were carrying out a regulatory inspection and made regulatory conclusions.
The Court concluded that the information contained in the report meets the four conditions for being considered confidential technical information and thus cannot be disclosed under paragraph 20(1)(b) of the ATIA.
Paragraphs 20(1)(c) and 20(1)(d) of the ATIA
Given its conclusions regarding paragraphs 20(1)(a) and (b), the Court did not address the applicability of paragraphs 20(1)(c) and 20(1)(d) of the ATIA.
Did Transport Canada have an obligation to give Air Transat the opportunity to be heard before changing its position regarding the disclosure of the documents following Transport Canada’s receipt of the Information Commissioner’s recommendations?
The Court held that if it was wrong in holding that the information contained in the report is protected under paragraphs 20(1)(a) and 20(1)(b) of the ATIA, disclosure should nonetheless be stopped by a stay of proceedings on the grounds of an abuse of process and a lack of procedural fairness due to Transport Canada’s failure to give Air Transat an opportunity to be heard before changing its position regarding the disclosure of the documents regarding it.
The Court described the steps that Transport Canada took to consult Air Transat on the disclosure of the records, concluding by mentioning that Transport Canada did not give Air Transat the opportunity to make any submissions before changing its position following its receipt of the Information Commissioner’s recommendations.
The Court held that in its view this goes against the right to be heard that is part of natural justice. That right is an integral part of a duty to act fairly, an obligation that extends to all administrative bodies acting under statutory authority. The Court stated that an administrative authority must at least allow the interested party to present its case before making a decision and that this was not done in this case. It held that after having been presented with the Information Commissioner’s conclusions, Transport Canada did not allow Air Transat to present its case against those conclusions before making a decision that was prejudicial to Air Transat. The Court stated “[w]hen I consider that with the fact that TC only gave Air Transat a single opportunity of less than 60 days to present its case in a matter that went on for more than 10 years, I must conclude that TC breached its duty to act fairly regarding Air Transat’s right to be heard” (para. 59).
Should the Information Commissioner’s report be set aside due to (1) a breach of natural justice; (2) a lack of procedural fairness; (3) a lack of jurisdiction on the part of the Information Commissioner; (4) errors in the reasons supporting the Information Commissioner’s decision?
Denial of natural justice
The Court held that a delay of more than 10 years between the start and end of the Information Commissioner’s investigation is long. It referred to Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII),  2 S.C.R. 307, in which the Court affirmed that natural justice includes the right to be heard within a reasonable time. The Court explained that in accordance with Blencoe, Air Transat must show that it suffered significant prejudice because there was a delay in the administrative proceedings.
With respect to the issue of significant prejudice, the Court accepted Air Transat’s arguments in this regard, i.e., that documents that Air Transat may have wanted to use in its defence were no longer available when the Information Commissioner’s report was published, employees who had significant knowledge of the confidentiality agreement between Transport Canada and Air Transat, as well as other relevant facts, were no longer employed at Transport Canada or Air Transat, that the memories of employees had faded after 10 years and Air Transat had suffered significant financial prejudice because of the difficulties caused by the delay (document destruction, loss of key employees, loss of relevant memories) when it was asked to reopen its file in 2012 and 2016. The Court thus found that Air Transat suffered significant prejudice because of the Information Commissioner’s delay.
The Court recognized that section 37 of the ATIA does not impose any timeline on the Information Commissioner for completing her investigations and for communicating her recommendations. It explained that under the ATIA, the Information Commissioner is required to advise a federal institution of an investigation as soon as there is a complaint (section 32) and if she intends to recommend the disclosure of documents that affect a third party, she must offer the third party an opportunity to make written representations (subsection 35(1)) and agreed that the Information Commissioner properly followed the procedure in this regard. Despite this, the Court held that there was also a procedure to be followed in Blencoe. It stated that “[r]egardless of whether there are procedures that were followed, action must be taken to respect the standards of natural justice and procedural fairness” (para. 68). The Court found that the delay of 10 years in this case undermines the standards of natural justice and procedural fairness, that it was overly long, and significant prejudice was established by Air Transat as a result of that delay. It held that under the circumstances, a stay of proceedings is an appropriate remedy, as contemplated in Blencoe.
The Court did not comment on the other claims put forth by Air Transat given its conclusions regarding the issues addressed.
The decision is available on the Federal Court of Appeal Decisions website at Air Transat A.T. Inc. v. Canada (Transport), 2017 FC 910.
2. Friesen v. Canada (Health Canada)
Federal Court of Canada
Citation: 2017 FC1152
Date of decision:
Provisions of the Access to Information Act: Sections 41 and 49
- Section 41 – Review by Federal Court
- Section 49 – Order of Court where no authorization to refuse disclosure found
The Federal Court’s authority under sections 41 and 49 of the Access to Information Act (ATIA) does not include an order to compel a further search for unidentified documents or to explain the meaning or significance of records that have been disclosed. The Court also lacks the authority to consider the wisdom of government document retention policies. The Court’s jurisdiction to order relief arises only where the head of a government institution or department refuses, without lawful justification, to produce a known record.
- Whether the Federal Court may grant relief where there is mere speculation that other responsive records must exist.
Ms. Friesen made an access request for records related to the testimony of an employee of the Department in a Quebec court proceeding. Certain records were initially produced but Ms. Friesen was unsatisfied. She made a complaint to the Office of the Information Commissioner.
The Information Commissioner conducted an investigation and determined that although the Department’s efforts were initially deficient, it had rectified the lapses and “processed all responsive records”. The complaint was recorded as “well-founded and resolved”.
Ms. Friesen brought an application for judicial review under section 41 of the ATIA because she was certain that Health Canada must have other records relevant to her request for access to information than those that were disclosed to her.
Ms. Friesen’s application sought relief in the form of “a full and thorough review of Health Canada’s decision to deny the Applicant access to the requested records” and her affidavit included demands for explanations for the content of some of the documents she received.
The application was dismissed.
The Federal Court can only provide relief to an applicant where there has been an unlawful refusal to disclose an identified record. A response that a record does not exist is not a refusal of access. Absent a refusal, the court does not have jurisdiction in judicial review.
The Federal Court’s authority under sections 41 and 49 of the ATIA does not include an order to compel a further search for unidentified documents or to explain the meaning or significance of records that have been disclosed. The court also lacks the authority to consider the wisdom of government document retention policies. The court’s jurisdiction to order relief arises only where the head of a government institution or department refuses, without lawful justification, to produce a known record.The decision is available on the Federal Court Decisions website at Friesen v. Canada (Health Canada), 2017 FC 1152.
3. Yeager v. Canada (Public Safety and Emergency Preparedness)
Federal Court of Canada
Citation: 2017 FC 330
Date of decision:
Provisions of the Access to Information Act: Section 3, subsection 4(2.1), sections 6, 7 and 8 and subsection 53(2)
- Section 3 ̶ Definition, government institution
- Subsection 4(2.1) ̶ Responsibility of government institutions, duty to assist
- Section 6 ̶ Request for access to record
- Section 7 ̶ Notice where access requested
- Section 8 ̶ Transfer of request
- Subsection 53(2) ̶ Costs, proceeding in the Court
The provisions of the Access to Information Act (ATIA) are specifically structured to establish separate government institutions and to require access requests to be made to the specific government institution with control over the records requested. A portfolio of ministries is not a “government institution” as it is defined under the ATIA.
Public Safety and Emergency Preparedness Canada (PSEPC), as one government institution within a portfolio of related ministries, did not automatically have control over records assumed to exist within another department within the same portfolio.
The two step control test, developed in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, was applied to find that PSEPC did not have control over records related to a Correctional Service of Canada independent review panel.
Where a government institution does not have control over records requested under the ATIA, neither the duty to assist under subsection 4(2.1) nor the discretionary authority under subsection 8(1) to transfer a request to another government institution with a greater interest in the records is triggered.
- What is the appropriate standard of review?
- Did PSEPC err in saying it held no relevant records?
- Were the provisions of section 8 of the ATIA met by PSEPC?
- Was PSEPC required to follow subsection 4(2.1) of the ATIA?
- Is either party entitled to costs and, if so, of what nature and amount?
Professor Yeager is a public criminologist. He made a access to information request to the Department of PSEPC for certain documents related to the then newly announced Correctional Service of Canada (CSC) Independent Review Panel. PSEPC replied on , indicating that a search had been conducted and that there were no relevant records in the department.
Professor Yeager filed a complaint with the Office of the Information Commissioner (OIC). The OIC found that PSEPC had conducted a complete and thorough search of departmental records and no responsive records were located. The applicant’s complaint was not substantiated. However, the OIC’s report went on to say that it became apparent during the investigation that CSC might have control of records responsive to the request and that although PSEPC should have considered transferring the request to CSC in accordance with section 8 of the ATIA, “this unfortunately was not done”. The OIC suggested that the applicant file a request with CSC.
Instead of requesting the documents from CSC, the applicant initiated judicial review proceedings, arguing that the Minister of Public Safety is the head of both PSEPC and CSC and, as such, the Minister has control over any document within his or her multi-department portfolio.
The application was dismissed.
Standard of review
The parties do not agree on the appropriate standard of review. Professor Yeager submits that when the issue is a denial of records, the standard of review is correctness as established in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (“National Defence”). The Attorney General relies on Dunsmuir v. New Brunswick, 2008 SCC 9 in submitting that the ATIP Coordinator was interpreting a statute connected to her function and that the absence of relevant records is a finding of fact so the standard of review is reasonableness for all issues.
The Supreme Court indirectly recognized in National Defence that assessing whether or not an institution controls a record under the ATIA is the sort of binary question that does not fit in well with conventional standard of review analysis; it treated the Federal Court as the initial forum for deciding the merits, whereas conventionally in a judicial review, the merits are decided by the administrative tribunal, while the Court merely assesses the legality of the tribunal’s decision.
Here, the Court concluded that whether this is considered a correctness review or whether it is an independent assessment of the evidence by this Court, it leads to the same result: the question is whether PSEPC controls the records and Professor Yeager’s “portfolio argument” is simply an extension of this question. In the Court’s view, it must answer these questions independently of the ATIP Coordinator’s view and the outcome of the case is the same regardless of the standard of review.
With respect to the standard of review applicable to the interpretation of section 8, Professor Yeager supported reasonableness as the applicable standard. The Court noted that it is well established that when a decision-maker is interpreting their home statute, the standard is reasonableness unless the issue falls into one of the four categories that have been determined to be reviewable on a correctness standard. The interpretation of section 8 of the ATIA does not fall into any of the four categories that rebut the presumption of reasonableness.
Did PSEPC err in saying it held no relevant records?
The Court reviewed Professor Yeager’s evidence that responsive records existed and noted that it cannot be disputed that responsive records exist somewhere. However, that is not the same as showing that the records Professor Yeager had in his possession, or others like them, were either located within PSEPC or controlled by it. There is no evidence that PSEPC had any responsive documents, original or duplicate, under its control.
Therefore, the question becomes whether the documents the applicant adduced into evidence and other responsive documents that can be presumed to exist at CSC are under the control of PSEPC on the basis of the applicant’s “portfolio argument”.
Professor Yeager’s “portfolio argument” maintains that whether records exist at the department level is not relevant. In a portfolio context, the Minister has control of records in his portfolio and that means PSEPC ought to have provided the records even if those records are located in CSC; being a public portfolio agency is different from being a separate government institution outside of a ministry; although CSC is listed in Schedule 1 to the ATIA as a government institution that is separate from PSEPC, the fact is that the Minister has effective control of any institution that is part of the Minister’s portfolio. The Minister’s control of a record within a portfolio agency trumps the listing of government institutions in Schedule 1 of the ATIA.
The Attorney General’s position on the “portfolio argument” was that section 6 of the ATIA requires a request for access to be made to the government institution that has control of the record and Professor Yeager made his request to the wrong department; under Schedule 1, CSC is a separate government institution from PSEPC and each are listed separately; in order to agree with the Professor Yeager’s “portfolio argument”, Schedule 1 would have to be disregarded.
The Court concluded that to apply the control argument at the portfolio level ignores the scheme of the ATIA.
First, the response by PSEPC did not purport to be a blanket, portfolio-wide denial; it was only a denial that there were relevant records within PSEPC. The Minister delegated his authority at PSEPC to the ATIP Coordinator, who was legally empowered to provide an answer on behalf of PSEPC but not for CSC or any other separate government institution. If the Minister had attempted to delegate his authority as institution head of CSC to an employee of PSEPC, such a delegation would have been unlawful.
Second, the definition of “government institution” in section 3 of the ATIA is clear and explicit: it means any department or ministry of state of the Government of Canada, or any body or office listed in Schedule 1. Section 6 requires a request for access to a record to be made in writing “to the government institution that has control of the record”. The notion of “control” and the definition of “government institution” are clearly intertwined. Section 6 specifies that the request is to be made to the government institution with control of the record. Both conditions must be met to create an actionable access request.
The Court was not persuaded that a group of separate government institutions, each individually enumerated in Schedule 1, can simply be treated as one amalgamated government institution just because they are placed under the same Minister as part of a portfolio. While Parliament could have made a portfolio of agencies a government institution, it chose not to and there is no evidence of any implicit intention to do so.
Third, to decide that PSEPC has control of a record located in another government institution over which the Minister has control would be to ignore both the plain language of the ATIA and the decision in National Defence. The decision in National Defence refused to conflate the issue of defining a government institution with the issue of how one determines which entity has control of a specific record. It stated that a two stage inquiry is to be conducted when, as is the case here, documents requested are not in the physical possession of the government institution.
Applying the first step of the test in National Defence, the issue of whether PSEPC, as a government institution, has control of a record that might be located in the Minister’s office, in CSC or in any other government institution, only arises if the record being sought relates to a departmental matter within PSEPC. None of the evidence Professor Yeager produced demonstrated any connection at all between the CSC Review Panel and PSEPC. As a result, the applicant’s request fails at step one – the “screening device” stage.
Were the provisions of section 8 of the ATIA met by PSEPC?
Under subsection 8(1) of the ATIA, the question of whether PSEPC should have transferred the applicant’s request is subject to two conditions: (i) PSEPC has control of a responsive record as required by sections 4 and 6; and (ii) another government institution has a greater interest in the record as that phrase is defined in subsection 8(3).
The Court concluded that because PSEPC did not control a record, section 8 of the ATIA was never triggered. Therefore, the question of whether PSEPC should have transferred the applicant’s request to CSC did not arise on these facts.
Was PSEPC required to follow subsection 4(2.1) of the ATIA?
On , subsection 4(2.1) of the ATIA came into force. It requires a government institution to make every reasonable effort to assist a person requesting access to a record under the control of the institution.
It is not necessary to consider whether subsection 4(2.1) operated retrospectively or prospectively. As the Court has determined that PSEPC did not have control of any record responsive to the request, the provisions of subsection 4(2.1) were not engaged.
Is either party entitled to costs and, if so, of what nature and amount?
This case is a classic instance of an irresistible force meeting an immovable object. Realistically, either side could have resolved this matter without any litigation, let alone that which has stretched over several years. However, the Court did not find that one party or the other is more or less to blame.
Professor Yeager, as a self-represented litigant, is generally not entitled to solicitor and client costs, although he may be entitled to some form of modest compensation beyond the actual disbursements he has incurred. There is no basis upon which to award punitive costs to him. Neither the “portfolio argument” nor Professor Yeager’s arguments with respect to subsection 4(2.1) raised an important new principle in relation to the definition of control; existing jurisprudence was fully responsive. However, Professor Yeager’s unsuccessful argument in relation to section 8 has helped to develop the law as contemplated by subsection 53(2) of the ATIA.
The Court held that Professor Yeager was entitled to some modest compensation for his time spent and for his reasonable disbursements incurred in preparing and advancing his argument on the issues related to section 8 of the ATIA. An all-inclusive award of $1500 for costs, including disbursements, is appropriate. There was no basis upon which to interfere with existing cost awards to which Professor Yeager is subject as part of this litigation.
As the Attorney General has succeeded, costs are payable by Professor Yeager to the Attorney General in accordance with column III of the table to Tariff B for all issues other than the section 8 issue. As the costs of the section 8 issue are likely to be difficult to separate, the Attorney General’s costs should be reduced by $1500 to reflect the fact that the Attorney General received no costs on the section 8 issue.
The decision is available on the Federal Court Decisions website at Yeager v. Canada (Public Safety and Emergency Preparedness), 2017 FC 330.
Federal Court of Appeal
4. Apotex Inc. v. Canada (Health)
Federal Court of Appeal
Citation: 2017 FCA 160
Date of decision:
Provision of the Access to Information Act: Paragraph 42(1)(c)
- Paragraph 42(1)(c) – Information Commissioner may appear as a party with leave of the Court
Paragraph 42(1)(c) of the Access to Information Act (ATIA), which allows the Information Commissioner to be added as a party in a proceeding under sections 41 or 44 of the ATIA with leave of the Court, does not require that the Information Commissioner satisfy the necessity test under Rule 104 of the Federal Court Rules. The appropriate test is an assistance test – the court should be satisfied that the Commissioner’s participation would be of assistance to the court.
- What is the proper standard of review?
- Did the Judge err in refusing to interfere with the Prothonotary’s order granting leave to the Commissioner to appear as a respondent to Apotex’s judicial review application?
In response to three requests under the ATIA, the Minister of Health decided to disclose records Apotex had previously submitted when seeking approval for a pharmaceutical product. Apotex applied for judicial review.
The Information Commissioner brought a motion seeking leave to be added as respondent to Apotex’s application for judicial review pursuant to paragraph 42(1)(c) of the ATIA. Apotex opposed the motion on the basis that the Commissioner had not demonstrated that her appearance was necessary as required under Rule 104 of the Federal Courts Rules.
A Prothonotary granted leave to the Information Commissioner to be added as a party, but did not provide detailed reasons. Apotex moved to set aside the Prothonotary’s order, arguing that the Prothonotary erred in law by not applying the “necessity test” under Rule 104 of the Federal Court Rules. The Federal Court dismissed Apotex’s motion, finding that if Rule 104 was strictly applied, the Information Commissioner would rarely meet the necessity test and, as a result, Parliament’s intention that the Commissioner may be granted leave to be a party under paragraph 42(1)(c) of the ATIA would be undermined. Rule 104 had to be adapted accordingly. Apotex appealed the Federal Court’s refusal to dismiss the Prothonotary’s order.
The Federal Court of Appeal unanimously dismissed Apotex’s appeal.
Standard of review
The Federal Court of Appeal determined it must apply the Housen v. Nikolaisen, 2002 SCC 33 standard of appellate review on appeal of a Federal Court’s review of a prothonotary’s order. Therefore, it was required to determine whether the Federal Court judge erred in law or made a palpable and overriding error in refusing to interfere with the Prothonotary’s order granting leave to the Commissioner to appear as a party.
Did the Judge err in refusing to interfere with the Prothonotary’s order?
The Federal Court Judge did not err in refusing to dismiss the Prothonotary’s order even though the Commissioner had not demonstrated that she was a necessary party to Apotex’s application.
The Prothonotary was not bound to strictly apply Rule 104. Parliament’s intention to have an agent of Parliament appear in judicial proceedings as a party, with leave of the court, must be given effect. The necessity test provided for in Rule 104 would undermine the intent of paragraph 42(1)(c) of the ATIA, which grants the Commissioner the clear possibility of appearing as a party. When exercising its discretion to grant leave under paragraph 42(1)(c), the court should be satisfied that the Commissioner would be of assistance to the court. An assistance test furthers the Commissioner’s participation, in accordance with Parliamentary intent, while still recognizing that paragraph 42(1)(c) does not give the Commissioner party status as of right.
When reviewed on the Housen standard, the Judge did not err in refusing to interfere with the Prothonotary’s finding of sufficient grounds to grant leave to the Commissioner to appear as a party. While there was limited evidence before the Prothonotary, there was a sufficient basis upon which the Judge could have concluded that the Prothonotary did not commit a reviewable error in granting the Commissioner’s motion.
The decision is available on the Federal Court of Appeal Decisions website at Apotex Inc. v. Canada (Health), 2107 FCA 160.
5. Canada (Office of the Information Commissioner) v. Calian Ltd.
Federal Court of Appeal
Citation: 2017 FCA 135
Date of decision:
Provisions of the Access to Information Act: Paragraphs 20(1)(b), (c) and (d); subsection 20(5)
- Paragraph 20(1)(b) ̶ Third party information, financial, commercial, scientific or technical information
- Paragraph 20(1)(c) ̶ Third party information, disclosure to result in material financial loss or gain, or to prejudice the competitive position
- Paragraph 20(1)(d) ̶ Third party information, disclosure could interfere with contractual or other negotiations
- Subsection 20(5) ̶ Disclosure if a supplier consents
Public Works and Government Services Canada (PWGSC) erred in determining that paragraphs 20(1)(c) and (d) of the Access to Information Act (ATIA) did not apply to detailed personnel rates in the form of firm all-inclusive hourly rates that had been developed by a third party in the course of preparing a bid for the provision of short term personnel services.
The correct interpretation of a disclosure clause –“[t]he Offeror agrees to the disclosure of its standing offer unit prices or rates by Canada…” – must be to permit disclosure not only within government but also more broadly to the public at large.
The proper framework under subsection 20(1) and 20(5) of the ATIA in the face of a disclosure clause of this type requires that the head of a government institution (i) determine whether the information would otherwise be treated as exempt and then (ii) decide whether any circumstance militates against the information being shared with the public, notwithstanding the consent to disclosure.
- What is the proper standard of review?
- Are the personnel rates exempt from disclosure under paragraphs 20(1)(b), 20(1)(c) and/or 20(1)(d) of the ATIA?
- What is the proper interpretation of the disclosure clause?
- How does the disclosure clause interact with the scheme of the ATIA?
In 2009, PWGSC launched a tender process by way of a Request for Standing Offer (RFSO) for the provision of research assistance to the Royal Military College of Canada (RMC). The RFSO required that bidding parties include detailed personnel rates in the form of “firm all-inclusive hourly rates” for approximately 100 different categories of personnel. This was different from previous RFSOs, for which the Crown had specified ‘base rates’ to which bidders would add their mark-ups and quote an all-inclusive “fully burdened rate”. The 2009 RFSO also included a disclosure clause that required that bidding parties agree to the disclosure of their standing offer unit prices or rates. Calian Ltd. was the successful bidder.
In 2013, PWGSC received an access request for a copy of “all contracts, contracts amendments, correspondences and e-mails” relating to the contract awarded to Calian for the period of 2009 – 2013.
Calian took the position that information regarding its employees and its own procurement and GST numbers should be redacted and also that its personnel rates were proprietary in nature and exempt from disclosure under subsection 20(1) of the ATIA. Calian argued that the risk of harm arising from the disclosure of the billing rates found in its 2009 bid was significantly increased as it had to rely on its extensive and proprietary skills in managing personnel services to develop competitive pricing.
Calian also advised PWGSC that the disclosure clause did not apply because: (i) it had been developed to only apply to material related values and not the fully-burdened rates; (ii) Calian understood the disclosure clause as constituting consent to disclosure to other government institutions, not as consent to disclosure to the public as a result of past decisions taken by DND, the previous contracting authority for the RMC research assistance bid; and (iii) because disclosure would cause irreparable harm from a competitive standpoint, thus heightening the need for a restrictive reading of the clause.
PWGSC decided to redact only those portions of the Standing Offer referencing (i) Calian’s employee names, titles, extensions, cell phone numbers and/or personal phones/fax numbers; (ii) Calian’s procurement business number; and (iii) Calian’s GST registration number. PWGSC rejected Calian’s request to redact the personnel rates, stating “[…] as the disclosure of information clause has already been incorporated into the Standing Offer, the unit process and rates cannot be considered to be confidential third party information that would prejudice your competitive position and we must therefore release them”.
Calian applied for judicial review and the Federal Court determined that while paragraph 20(1)(b) did not apply, paragraphs 20(1)(c) and (d) did. The Federal Court granted Calian’s application and both the Attorney General of Canada and the Information Commissioner appealed.
The appeal was allowed in part.
What is the proper standard of review?
The parties all agreed that appellate review in the context of the ATIA must be conducted in accordance with the principles set out in Housen v. Nikolaisen, 2002 SCC 33. This is consistent with the Supreme Court of Canada’s decision in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3. Accordingly, the focus of the Court’s review was the decision of the Federal Court, and the standard was that of correctness on questions of law, and of palpable and overriding error on findings of fact and of mixed fact and law. Where a question of mixed fact and law contains an extricable legal question, the standard of review will also be correctness.
The Court held that the impact, if any, of the subsequent decision rendered by the Supreme Court of Canada in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, was better left for another day. The Court held that while it was obviously not bound by the parties’ agreement as to the applicable standard of review, the argument should nevertheless be fully canvassed before setting aside an established line of cases in the absence of clear indication from the highest court.
The Court held that the Judge did not commit a reviewable error in determining that the decision to disclose or not to disclose must be judicially reviewed on the correctness standard. As for the subsequent questions, being ones of contractual interpretation and of the interplay between the disclosure clause and the ATIA, the applicable standard of review is that of correctness. While the Supreme Court of Canada recently held in Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53 that questions of contractual interpretation will generally be construed as questions of mixed fact and law, one line of recent cases has held that a lower threshold of judicial intervention should apply to standard form contracts. The Supreme Court of Canada recently endorsed this approach (see Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37). Further to the application of the Supreme Court of Canada’s analysis in Ledcor to the facts, the interpretation of the disclosure clause and how it interacts with the scheme of the ATIA involve extricable questions of law and thus the standard of review applicable to these issues must be that of correctness, pursuant to the Housen appellate standard of review.
Are the personnel rates exempt from disclosure under paragraphs 20(1)(b), 20(1)(c) and/or 20(1)(d) of the ATIA?
There was no dispute between the parties as to the legal principles underlying the application of paragraph 20(1)(c). The appellant Commissioner acknowledged that the Judge correctly cited the legal test for determining the applicability of paragraph 20(1)(c) but submitted that the Judge failed to properly apply the relevant principles and erred in finding Calian’s evidence was sufficient to establish a reasonable expectation of probable harm.
The Court held that the Judge correctly applied the Merck framework and committed no reviewable error in concluding, on the basis of the evidence that was before him, that releasing Calian’s detailed personnel rates would give its competitors a ‘free ride’ and ‘tilt the level playing field’ against Calian. Contrary to the position of the Commissioner, the Judge did not merely rely on bald and unsupported assertions. He came to the conclusion, based on his own assessment, that the personnel rates, individually and in the aggregate, were the most significant factor in the success of Calian’s bid and were crucial to Calian’s competitive position. He also accepted that the development of the personnel rates was effected through the confidential and proprietary salary and other information that Calian directly obtained from, or negotiated with, the numerous potential providers of the required specialist labour services in addition to its own business analyses.
However, the Court found that the Judge erred in taking the history of past dealings between the parties as a factor to be considered for the purposes of assessing whether the information sought to be disclosed could reasonably be expected to result in material financial loss or gain to Calian or to prejudice its competitive position. First of all, the Court observed that it did not know why DND redacted the rates in 2009. Secondly, the Judge assumed that the previous decision made by DND was binding and correct. Finally, and more importantly, the evidence of harm flowing from disclosure can only be determined on the basis of the specific records at issue in an access request; such an assessment is fact specific and turns on the circumstances of each case.
Despite this flaw in his reasoning, the Court concluded that it was open to the Judge to come to the conclusion that there was sufficient evidence before him to meet the Merck standard. The Supreme Court of Canada made it clear in Merck that “[i]t is for the reviewing judge to decide whether the evidence shows that disclosure could reasonably be expected to result in harm of the nature specified in s. 20(1)(c)”. The Supreme Court of Canada went on to say that disclosure of information “that is shown to give competitors a head start in developing competing products, or to give them a competitive advantage in future transactions may, in principle, meet the requirements of s. 20(1)(c)”. This is precisely what the Judge found, on the basis of ‘broadly-sourced’ evidence that he characterized as reliable and credible from a ‘very senior officer’ of Calian. The Court concluded that these findings were available to him and saw no basis upon which to interfere with his conclusion.
The same was true for the exemption provided by paragraph 20(1)(d). The Court held that the Judge correctly identified the applicable principles and made it clear that the obstruction or interference with contractual or other negotiations of a third party ‘must be probable and not merely speculative’. He also accepted that evidence of heightened competition or increased competitive pressure is not sufficient to establish that the harm can reasonably be expected to occur.
Applying these principles, the Judge concluded that it was probable that two forms of pressure, both working against Calian, were at play and risked negatively impacting negotiations with both its employees and potential suppliers, separately and in combination. The Court found that the interference with contractual or other negotiations that would result from the disclosure is not merely speculative but rests on cogent, credible and reliable evidence. There is an element of forecasting and speculation inherent to establishing a reasonable expectation of probable harm. As long as the prediction is grounded in ascertainable facts, credible inferences and relevant experience, it is unassailable. Accordingly, the Court held that it was open to the Judge to find that Calian could rely on 20(1)(d).
Finally, the Court saw no reason to vary the Judge’s finding with respect to paragraph 20(1)(b). The Judge correctly found that to claim this exemption, an applicant must meet the four-part test outlined in Air Atonabee Ltd. v. Canada (Minister of Transport). Since Calian agreed to some type of disclosure, albeit limited in scope, this test was not met. Calian was unable to meet the requirement that the information be communicated with a reasonable expectation of confidentiality since the personnel rates, though confidential in nature, were both prepared and communicated under an understanding of the disclosure clause which allowed, in Calian’s view, disclosure to other government departments.
Having found that the Judge committed no reviewable error for the purpose of assessing the application of subsection 20(1), the Court agreed with the Judge that PWGSC erred in determining that the information requested could not be treated as third party exempt information under the ATIA.
What is the proper interpretation of the disclosure clause?
The Court recognized that it was well established that the interpretation of a standard form contract is a question of law. Following the decision of the Supreme Court of Canada in Ledcor, recourse to the reasonable expectations of a party and to its subjective intent clearly have no place in the analysis of a standard form contract. Such a contract is not negotiated in any meaningful way, making it illusory to suggest that anything could be inferred about the meaning of the contract from the facts surrounding its formulation or from the subjective understanding of one of the parties. Moreover, consistency is of particular importance when interpreting standard form contracts. Fairness among bidders requires consistency and predictability.
The Court agreed with the appellants that the disclosure clause is unambiguous on its face. Whether read in isolation or within the context of the General Conditions, there was no explicit or implicit restriction to the type of disclosure agreed upon by the Offeror regarding its standing offer unit prices or rates. This interpretation is consistent with previous Federal Court decisions confirming that clauses of this sort constitute consent to disclose records not only within government, but also to the general public.
In addition to the clear wording and the principles established by these cases, the Court offered further reasons why the disclosure clause must be interpreted as encompassing consent to disclosure not only to government institutions, but also to the public at large.
First, the ATIA itself does not distinguish between disclosure within government and disclosure to the public. In the absence of a contrary indication, be it explicit or implied, it must be presumed that the disclosure clause found in the General Conditions was meant to be consistent with the spirit and intent of the ATIA.
Second, the disclosure clause appears to be superfluous if it were to be interpreted merely as a licence for government departments to share between themselves standing offer unit prices or rates. It is well established that departments have no legal personality distinct from that of the Crown and are mere administrative divisions under the control of a minister acting on behalf of the Crown. To the extent that the information does not fall within a statutory or policy limitation on disclosure within government, there seems to be no impediment to government departments sharing that kind of information.
The Court therefore held that the correct interpretation of the disclosure clause, consistent not only with its clear wording but also with the general scheme and purpose of the ATIA together with basic principles of administrative law, must be to permit disclosure not only within government but also more broadly to the public at large.
How does the disclosure clause interact with the scheme of the ATIA?
The Court held that the disclosure clause constituted consent to disclosure to the public at large of otherwise exempt information under the ATIA. Subsection 20(5) allows the head of a government institution to disclose a record even if it falls within one of the exemptions provided for in 20(1) with the consent of the third party to whom the information relates.
The Court noted that it appeared that PWGSC construed the disclosure clause as an outright bar to claiming the third party exemptions, which led to its finding that there was no residual discretion to exercise under subsection 20(5) of the Act. This interpretation is not supported by the language of the clause or the scheme of the ATIA. The clause’s impact is not that the exemptions found under subsection 20(1) do not apply; rather, it is that despite them applying, the third party nonetheless agrees to disclosure. Agreeing to the disclosure clause simply constitutes the sort of consent contemplated by subsection 20(5) of the Act. By making such a provision discretionary in nature, Parliament unequivocally considered that there would be circumstances where, notwithstanding consent to disclosure, the head of the government institution may still decide not to disclose the requested information.
According to the Court, the proper framework under subsection 20(1) and 20(5) of the ATIA in the face of a disclosure clause of this type requires that the head of a government institution (i) determine whether the information would otherwise be treated as exempt and then (ii) decide whether any circumstance militates against the information being shared with the public, notwithstanding the consent to disclosure.
The matter was remitted back to PWGSC for redetermination in accordance with the Court’s reasons.
The decision is available on the Federal Court of Appeal Decisions website at Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135.
6. Defence Construction Canada v. Ucanu Manufacturing Corp.
Federal Court of Appeal
Citation: 2017 FCA 133
Date of decision:
Provision of the Access to Information Act: Section 24
- Section 24 – Statutory prohibitions against disclosure
The issue of whether a government institution may late-claim a mandatory exemption for the first time in Federal Court proceedings is complex. The outcome may vary from case to case and should be informed by a multi-factor approach that takes into account a range of considerations, including the interest in confidentiality sought to be protected. A full evidentiary record is required.
The Federal Court was bound to allow the government institution an opportunity to adduce evidence supporting its late assertion of the mandatory exemption. That evidence might have shed light on why the exemption was being asserted late and why it should be allowed to be asserted late. It might also have identified and explained the rationale underlying some of the confidentiality interests at stake. Without the evidence before it, the Federal Court could not embark upon a proper consideration of this issue, yet it dealt with it. This was an error of principle permitting this Court to intervene.
- What is the proper standard of review?
- If section 30 of the Defence Production Act can be raised at a late stage, does it apply to the facts of this case (fact-based issue)?
- Can section 30 of the Defence Production Act be raised at a late stage; in other words, is it ever too late to assert a mandatory exemption in Access to Information Act proceedings (jurisprudential issue)?
Ucanu Manufacturing Corp. (Ucanu) made an access to information request to Defence Construction Canada for records related to a contract awarded to a joint venture for the construction of a maintenance hangar on the Trenton air force base. Defence Construction relied on subsection 19(1) and paragraph 20(1)(b) of the Access to Information Act (ATIA) to refuse to disclose portions of the joint venture agreement that was responsive to the request. Ucanu complained to the Information Commissioner, who found that the undisclosed records were properly exempt from disclosure. Ucanu initiated a Federal Court application seeking disclosure.
Five days prior to the Federal Court hearing, Defence Construction asked the Federal Court for an opportunity to file “further materials including supplementary submissions” in order to support, for the first time, a new mandatory exemption (section 24 of the ATIA) with reference to section 30 of the Defence Production Act. The Federal Court refused Defence Construction’s request, only giving it an opportunity to file submissions at the hearing. While the Federal Court heard arguments with respect to the application of section 24 of the ATIA and section 30 of the Defence Production Act, it ruled that it was too late for Defence Construction to assert the mandatory exemption and refused to consider the arguments raised. The Federal Court accepted Defence construction’s position with respect to the application of subsection 19(1), rejected Defence Construction’s arguments with respect to the application of paragraph 20(1)(b) of the ATIA and the relevant portions of the joint venture agreement were ordered released.
Defence Construction appealed the Federal Court’s refusal to consider the application of section 24 of the ATIA.
The appeal was allowed.
What is the proper standard of review?
The Court of Appeal unanimously agreed that the standard of review is correctness further to Housen v. Nikolaisen, 2002 SCC 33, given that the issue, by definition, never arose before the administrative decision-maker. Contrary to the dissenting reasons, the majority judgment identified an error of principle permitting appellate intervention.
If section 30 of the Defence Production Act can be raised at a late stage, does it apply to the facts of this case (fact-based issue)?
As a result of finding that it was too late for Defence Construction to assert the mandatory exemption, the Federal Court did not examine whether the mandatory exemption applies on the facts of this case.
The Federal Court’s earlier ruling that it would not allow Defence Construction an adjournment to file evidence on point was key to the Court’s conclusion that it was too late for the appellants to assert section 24 of the ATIA. The Federal Court had ruled that Defence Construction could not file evidence to support the mandatory exemption and to justify its late assertion because the request to do so was too late. There was a certain circularity here. In effect, the fact that the mandatory exemption was asserted late meant that a request to file evidence could only be made late and that lateness was used to prevent consideration of whether the exemption could be asserted late. The Federal Court’s conclusion that Defence Construction could not rely on the mandatory exemption was preordained by its refusal to grant Defence Construction’s late request for an adjournment – the denial of the adjournment in effect decided the substantive issue without the benefit of evidence before the Court.
The Federal Court was bound to allow Defence Construction an opportunity to adduce evidence supporting its late assertion of the mandatory exemption. That evidence might have shed light on why the exemption was being asserted late and why it should be allowed to be asserted late. It might also have identified and explained the rationale underlying some of the confidentiality interests at stake. Without the evidence before it, the Federal Court could not embark upon a proper consideration of this issue, yet it dealt with it. This was an error of principle permitting this Court to intervene.
While the issue of the adjournment was not challenged in the notice of appeal, it is part and parcel of the merits of the appeal and cannot be separated from it. In effect, the issue is before the Court of Appeal by necessary implication.
While the Federal Court heard counsel on the issue of the late-claimed exemption, and the parties agreed no further written submissions were necessary, the Federal Court gave the parties only the right to file written submissions, not evidence. Further legal submissions would not have sufficed.
The issue of whether Defence Canada can assert a mandatory exemption at a late stage and, if so, whether the mandatory exemption is made out on the facts of this case was returned to the Federal Court for redetermination on the basis of a full evidentiary record.
In dissent, Boivin J.A. noted that the order denying the adjournment was not challenged before the Court of Appeal and concluded the Court of Appeal should not, in effect, override that order. Even assuming that it was open to the Court of Appeal to decide this appeal, it is not open to an appellate court to intervene in a judge’s discretionary decision unless it identifies an error of law or a palpable and overriding error of fact. The dissenting reasons found no basis for disturbing the Federal Court’s discretionary decision to deny Defence Construction’s request for an adjournment. Indeed, all parties were in agreement that the Federal Court was provided with what it needed to adjudicate upon the issue of the late-claimed exemption. In the circumstances, the dissent concluded that it would be inappropriate to, in effect, overrule the order by remanding the matter to the Federal Court for redetermination.
Can section 30 of the Defence Production Act be raised at a late stage; in other words, is it ever too late to assert a mandatory exemption in ATIA proceedings (jurisprudential issue)?
The question of whether it is ever too late to assert a mandatory exemption in ATIA proceedings is a complex one, with compelling considerations on either side. On one side is the importance of the investigation stage that takes place after a complaint has been made, said to be ‘a cornerstone of the access to information system’. On the other side is the mandatory nature of the exemptions themselves. Indeed, it would be strange if the inadvertent or negligent handling of an information request has the effect of foreclosing recourse to a mandatory exemption and allowing a highly injurious document to be released.
The Federal Court observed correctly that the jurisprudential issue has never been settled by the Federal Court of Appeal. It concluded, only on the basis of previous Federal Court cases, that it was too late to assert the mandatory exemption. But the earlier Federal Court cases relied upon by the Federal Court do not examine the jurisprudential issue in a fulsome way. The cases do not conduct a full examination of the text of the ATIA, construed in light of its context and purpose.
It would be unwise at this stage in the development of the jurisprudence to express a definitive, binding-for-all-time view on the jurisprudential issue in this case. The jurisprudential issue is a high-stakes one, fraught with ramifications of a far-reaching and hazardous kind. There are also certain questions associated with the Information Commissioner’s test that require further study, full submissions and the benefit of Federal Court rulings. Until the jurisprudential issue is comprehensively settled, it is folly to nibble at it through one-off rulings. In this case, we do not know what the appellant’s interest in confidentiality is because the appellant was not permitted to adduce evidence in support of the mandatory exemption. Lastly, the list of government departments and institutions in Schedule II to the Act is long and the range of confidentiality interests recognized by Parliament is wide. To resolve the jurisprudential issue, the Court will need to be acquainted with all of those interests and institutions. For all these reasons, the majority refrained from determining the jurisprudential issue in this case.
In dissent, Boivin J.A. concluded that it is the Court of Appeal’s duty to address the appeal before it. The consensus that emerges from the jurisprudence is that a government institution cannot late-claim an exemption, including a mandatory one, if that exemption was not put before the Information Commissioner during the investigation. That is so in order to safeguard the requester’s quasi-constitutional right of access and the first level of independent review of the Information Commissioner. Considering the ATIA’s objective and the overall scheme, and giving effect to the Information Commissioner’s role and mandate confirmed by Parliament, the general principle that mandatory exemptions cannot be late-claimed is sound, though could admit exceptions in certain limited circumstances.
The decision is available on the Federal Court of Appeal Decisions website at Defence Construction Canada v. Ucanu Manufacturing Corp., 2017 FCA 133.
Federal Court of Canada
7. O'Grady v. Canada (Attorney General)
Federal Court of Canada
Citation: 2017 FC 167
Date of decision:
Provisions of the Privacy Act: Paragraphs 7(a) and 8(2)(a)
- Paragraph 7(a) ̶ Use of personal information
- Paragraph 8(2)(a) ̶ Disclosure of personal information, consistent purpose
The evidence is clear that Ms. O’Grady’s personal information was not included in the Study that is the subject of this judicial review application and she thus has no standing to bring this application.
Even if Ms. O’Grady had standing, no personal information has been or will be disclosed outside of Statistics Canada in the conduct of the Study.
Statistics Canada could not have contemplated a 2011 Study proposed by McGill University (“McGill”) at the time of either the 1996 census or the 2006 census. However, the concept of a ‘consistent use’ overcomes the obvious difficulties that will arise over time in deciding whether the use of the census information in this Study is permitted under the Privacy Act.
The Study’s objective is to analyze and determine trends regarding perinatal health for usage in the development of social and health policies. The Study’s objective appears to comply with the census purpose of collecting data for use in developing a health program or service and Statistics Canada’s mandate to collect, analyze and publish statistical information, including statistics related to the health of Canadians. The use of personal information collected through the census for the purposes of the 2011 Study is thus a consistent use.
- What is the appropriate standard of review?
- Does Ms. O’Grady have standing to seek judicial review?
- Did the decision-maker exercise his discretion in a manner that violated s. 18.1(2) of the Statistics Act or the Privacy Act?
Statistics Canada is a statistical agency with a mandate to collect, analyze, abstract and publish statistical information related to the social and general activities and conditions of Canadians. As part of this mandate, a census of Canada’s population is taken every five years. In its analysis, Statistics Canada employs record linkages, which combine two or more micro-records to form a composite record.
In 2011, Statistics Canada and McGill entered into a Letter of Agreement to conduct a study that would assess infant mortality and newborn health by examining perinatal outcomes in Canada according to various risk factors. In connection with the Study, record linkages were used to link information from the national birth record database and the 1996 and 2006 censuses. In order to minimize the privacy intrusion, the record linkages were performed in accordance with section 6 of the Statistics Act by Statistics Canada employees or deemed employees and the composite records were stripped of direct personal identifiers before they were made accessible to McGill. The composite records were also restricted to Statistics Canada premises. Additionally, the usage of the record linkage was publicly posted on the Statistics Canada website.
The criteria for inclusion in the Study included persons who were born between 1985 and 2010 to a Canadian mother. Since Ms. O’Grady gave birth in Ontario between 1986 and 1996, her census information could have qualified for usage in the Study. However, there was an issue with data quality concerns and as a result, Ontario birth records between 1994 and 1996, including Ms. O’Grady’s, were excluded from the Study.
Ms. O’Grady filed a complaint with the Privacy Commissioner, who determined that her personal information had not been improperly used by Statistics Canada.
Ms. O’Grady was seeking judicial review of the Letter of Agreement between Statistics Canada and McGill, under which McGill would pay $380,000 to Statistics Canada to perform record linkages and analyze census information.
The application was dismissed. Costs will be dealt with in a supplemental order.
Standard of review
Ms. O’Grady seeks a review of the Chief of Statistics’ decision to enter into the agreement with McGill that resulted in the Study. This gives rise to questions of mixed fact and law and is reviewable on a standard of reasonableness.
Ms. O’Grady seeks judicial review under s. 18.1(1) of the Federal Courts Act. However, she is not “anyone directly affected by the matter in respect of which relief is sought”. Ms. O’Grady has no direct standing to bring this application. The evidence is clear that her records were not included in the Study.
Ms. O’Grady has attempted to resolve this defect by laying claim to some kind of public interest standing. Public interest standing is not granted to everyone. There are various factors that must be taken into account: “At the root of the law of standing is the need to strike a balance ‘between ensuring access to the courts and preserving judicial resources’” Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
Ms. O’Grady’s situation is not representative of all persons whose information was used. The issues she raises and argues can only really be decided on a set of facts that includes an applicant or applicants who were directly affected, or who may be affected by the Study when it is eventually released. As yet, there has been no disclosure of personal information so that, at this point, it is not clear what will be or could be disclosed that persons whose records were part of the linkage might wish to complain about. It would be dangerous for the Court to attempt to pronounce upon complex issues without an appropriate record to do so.
No disclosure of personal information and new use of personal information
Alternatively, even if Ms. O’Grady had standing to bring this application, the record is clear that no personal information has been disclosed in this case, not only with respect to Ms. O’Grady whose records were not used, but also with respect to those persons whose records were used.
Ms. O’Grady relies heavily upon sections 17(1)(b), 17(2) and 18.1 of the Statistics Act. None of these provisions come into play on the facts of this case, either for Ms. O’Grady or for anyone whose records were actually used. This is because no information obtained under the Statistics Act was disclosed contrary to paragraph 17(1)(b), so that subsection 17(2) does not come into play. Ms. O’Grady has also not shown how s. 18.1 of the Statistics Act has any application to the present situation. That section deals with public disclosure of information obtained by a census 92 years after it has been taken.
Ms. O’Grady counters the evidence that no personal information was disclosed by Statistics Canada in the study with an assertion that ‘indirect identifiers’ give rise to a ‘possible risk’ that the identities of individual participants will be revealed, but she has not demonstrated with convincing evidence how this could occur.
Only employees and deemed employees of Statistics Canada with a need to know had access to the raw data, and they were the ones who performed the record linkages. The linked data was then retained within Statistics Canada premises and, once again, could only be accessed by Statistics Canada employees or deemed employees. All that the Study researchers have seen is non-confidential aggregate data. The assertion that the Study researchers’ receipt of postal codes make it possible to identify individuals remains a mere assertion by Ms. O’Grady. She has not led the Court to any evidence which would show how this could be done. In addition, no personal information, including postal codes, has yet been revealed to anyone outside of Statistics Canada and those who made undertakings of confidentiality as deemed employees under the Statistics Act.
Ms. O’Grady’s reliance upon paragraph 8(2)(a) of the Privacy Act is misplaced because no personal information has been disclosed in the Study. The issue in this case is whether, under paragraph 7(a) of the Privacy Act, census information was used “for a use consistent” with the “purpose for which it was obtained or compiled”.
The Supreme Court of Canada set out the ‘consistent use’ test in Bernard v. Canada (Attorney General), 2014 SCC 13: “A use need not be identical to the purpose for which information was obtained in order to fall under s. 8(2)(a) of the Privacy Act; it must only be consistent with that purpose…there need only be a sufficiently direct connection between the purpose and the proposed use, such that an employee would reasonably expect that the information could be used in the manner proposed”.
It is clear that Statistics Canada could not have contemplated the Study at the time of either the 1996 census or the 2006 census. Hence, the information collected by those censuses was not obtained specifically for the Study. However, the purpose of the Study is to compile and analyze statistics related to the health and welfare of Canadians, so it complies with the purpose of the censuses (supporting policy development of governments and data users in the private sector) and with Statistics Canada’s mandate to collect, analyze and publish statistical information. The study satisfies the Bernard test for ‘consistent use’. This means that it is compliant with section 7.
Ms. O’Grady has not shown an inconsistent use of the census information or a disclosure of personal information. She has not demonstrated that anything other than non-confidential aggregate data will be publicly disclosed when the Study is complete.
Ms. O’Grady is saying that Statistics Canada changed the fundamental balance struck by the Act by using personal information without consent and this undermines the democratic process because it was not what Parliament intended. But the answer to this is that future studies in the health area cannot be identified at the time of a census, and that the public good does not require, and Parliament did not intend, that consent of the whole census population is required each time a new study is proposed. The Chief of Statistics did not change the law or upset the balance that Parliament and the Supreme Court of Canada have said is required in these situations. The Chief of Statistics Acted in accordance with the mandate of Statistics Canada and the law which says that further consent is not required for a consistent use. On the facts, this was a consistent use in which no personal information has been, or will be disclosed.
The decision is available on the Federal Court Decisions website at O’Grady v. Canada (Attorney General), 2017 FC 167.
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