Info Source Bulletin 41A - Federal Court Decision Summaries

Should the Court grant Air Transat's motion to strike certain paragraphs and certain exhibits in support of the respondent Information Commissioner's August 13, 2016, and September 15, 2016 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), [2012] 1 SCR 23, 2012 SCC 3 (CanLII). It explained that in that decision, the Supreme Court defined a trade secret as follows:

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), [1989] 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), [2000] 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.

Remaining claims

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.

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 September 1, 2007, 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.

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.

Federal Court of Appeal

Citation: 2017 FCA 133

Date of decision: June 22, 2017

Provision of the Access to Information Act: Section 24

• Section 24 – Statutory prohibitions against disclosure

Summary

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.

Issue

• 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)?

Facts

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.

Decision

The appeal was allowed. 

Reasons

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.

Standing

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.