Info Source Bulletin 43A - Federal Court Decision Summaries

Is the disputed information exempt from disclosure pursuant to paragraph 20(1)(b) of the ATIA?

The Court confirmed that the test to be used in determining whether information is exempt from disclosure under paragraph 20(1)(b) of the ATIA is the one established in Air Atonabee at paragraph 34, and approved by the Supreme Court of Canada in Merck at paragraph 133. That is, the party resisting disclosure must establish that the information in issue: (a) is financial, commercial, scientific or technical in nature; (b) is confidential information; (c) that was supplied to a government institution by a third party; and (d) has been treated consistently in a confidential manner by the third party.

This test is conjunctive, meaning that Bombardier must satisfy all four elements of the test in order to establish that the information in question is exempt from disclosure: Air Atonabee at paragraph 34. While the parties agreed that the disputed information was financial in nature, they disagreed as to whether the other three elements of the test under paragraph 20(1)(b) of the ATIA had been satisfied by Bombardier. Consequently, the Court considered the remaining elements of the Air Atonabee test.

Is the disputed information “confidential information”?

(a) Is the disputed information already available from sources otherwise accessible to the public?

While the disputed information was available to the public in aggregate form, the Court accepted that it was not available in a manner that is specifically attributable to a particular aircraft project.

(b) Was the disputed information communicated to ISED by Bombardier with a reasonable expectation that it would not be disclosed to the public?

The Court was not persuaded that the information in issue was communicated to ISED by Bombardier with a reasonable expectation that it would not be disclosed. First, the funding agreements between Bombardier and ISED contained a confidentiality clause that expressly provided that while the parties would keep the contents of the agreements and the transactions contemplated thereby confidential, the agreements were nevertheless subject to the provisions of the ATIA. Furthermore, the confidentiality clause in a November 1999 amendment to the funding agreement involving Bombardier gave the Minister discretion to disclose any of the contents of the agreement or the transactions contemplated by it in a variety of circumstances involving trade disputes. There was a similar provision in a 2008 Settlement Agreement between ISED and Bombardier which superseded its earlier agreement with TPC. More importantly, Bombardier’s Vice-President of Strategy & Business Development had executed two forms that clearly contemplated the release of information broken down by entity and project for future requests for information being made that would be subject to the permission previously granted.

Having failed to establish that the disputed information was communicated to ISED by Bombardier with a reasonable expectation that it would not be disclosed to the public, it followed that the information in question was not “confidential information” within the meaning of the Air Atonabee test, therefore it was not exempt from disclosure under paragraph 20(1)(b) of the ATIA. In light of this finding, the Court did not consider the third element of the Air Atonabee test. However, the Court briefly addressed the fourth element of the Air Atonabee test: whether the disputed information had been treated consistently in a confidential manner by Bombardier. The Court stated that the consents provided by Bombardier’s Vice-President led to the conclusion that this information had not been consistently treated in a confidential manner by Bombardier. Consequently, Bombardier also failed to satisfy the fourth element of the Air Atonabee test with respect to this information.

Is the disputed information exempt from disclosure pursuant to paragraph 20(1)(c) of the ATIA?

Will the release of the disputed information cause Bombardier financial harm or damage its competitive position?

The Court was not persuaded that there was a reasonable expectation that the disclosure of the disputed information would cause Bombardier harm that was “well beyond” or “considerably above” the merely possible or speculative. For example, Bombardier had not provided evidence to show that its “Total Eligible Costs” actually equated to its program development costs or total project costs. Nor had Bombardier identified what portion of its development costs were in fact ineligible for consideration under the TPC program. Information had also not been provided with respect to the value of any “credits” that might apply. Bombardier also failed to satisfactorily explain how information that was at least ten years old (in the case of the 2009 request) or eight years old (in the case of the 2011 request) could be used to create a competitive disadvantage for Bombardier in relation to new and different aircraft programs in 2019 or beyond.

Will the release of the disputed information prejudice Bombardier’s position in trade disputes?

The Court was also not persuaded that Bombardier had established a reasonable expectation that the disclosure of the disputed information would cause harm to Bombardier in trade disputes that was “well beyond” or “considerably above” the merely possible or speculative. Bombardier’s allegations failed to make a clear and direct connection between the disclosure of specific entries in the disputed information, the use of this information in the context of trade disputes and harm within the meaning of paragraph 20(1)(c) of the ATIA.

For example, the duties that had been imposed by the U.S. Department of Commerce had been rescinded following a ruling by the International Trade Commission in January of 2018, with the result that there was no longer a live dispute between Boeing and Bombardier. Insofar as Brazil’s World Trade Organization complaint was concerned, Bombardier had not satisfactorily explained how information with respect to the funding it received through the TPC program in relation to its “CRJ Series” and “Q400” aircraft would be relevant to a trade dispute involving Bombardier’s “C Series” aircraft. Bombardier’s argument also did not demonstrate that the disclosure of the disputed information would be of any real consequence in light of the publicly available information.

For the reasons above, the Court concluded that Bombardier failed to establish that the disputed information was exempt from disclosure under either paragraph 20(1)(b) or paragraph 20(1)(c) of the ATIA.

Whether the Minister was entitled to withhold portions of the documents under subsection 24(1) of the ATIA

(a) Publicly available information

The Court found that the restrictions in subsections 241(1) and (2) of the ITA against disclosure of taxpayer information, and in subsections 295(2) and (3) of the ETA against disclosure of confidential information, do not apply to publicly available information such as the First Letter and the Second Letter. However, the Court did not apply the same reasoning to the Third Letter because it was not available to the public.

(b) Paragraph 241(3)(b) of the ITA and paragraph 295(4)(b) of the ETA

Subsection 241(3) of the ITA provides that subsections 241(1) and (2) do not apply “in respect of… any legal proceedings relating to the administration or enforcement of this Act…”. For the Court, the issue was whether Bradwick’s ATI requests were in respect of any legal proceedings relating to the administration or enforcement of the ITA.

Given the guidance in Slattery (Trustee of) v. Slattery, [1993] 3 SCR 430 at pages 445-46, the Court found that the present case, which concerned ATI requests to assist with Bradwick’s Notices of Objection, related to the administration or enforcement of the ITA and the ETA. Accordingly, the Court did not apply the restrictions in subsections 241(1) and 241(2) of the ITA, and the corresponding provisions in subsections 295(2) and 295(3) of the ETA. However, it does not necessarily follow that all redactions by the CRA based on subsection 24(1) of the ATIA were improper. The Court briefly stated that the Minister maintains a limited discretion to release (or withhold) confidential information: Scott Slipp Nissan Ltd v. Canada (Attorney General), 2005 FC 1477 at paragraph 41. Other provisions within section 241 of the ITA and section 295 of the ETA permit, but do not oblige, disclosure of information.

(c) Paragraphs 241(4)(a) and (b) of the ITA and paragraphs 295(5)(a) and (b) of the ETA

Paragraphs 241(4)(a) and (b) of the ITA and paragraphs 295(5)(a) and (b) of the ETA provide for the disclosure of taxpayer information that can “reasonably be regarded as necessary for the purpose of” either the administration or enforcement of the ITA and the ETA, or determining amounts owing under either Act. Having reviewed the redactions in issue, the Court found none that could reasonably be regarded as necessary to either (i) the administration or enforcement of either the ITA or the ETA, or (ii) determining the amounts owed by Bradwick under either Act. Accordingly, the Court did not order production of the redacted information pursuant to paragraphs 241(4)(a) or (b) of the ITA or paragraphs 295(5)(a) or (b) of the ETA.

(d) Conclusion

The Court concluded that the redactions at issue that were based on subsection 24(1) of the ATIA and which withheld information in the public domain were improper. This conclusion affected the First and Second Letters, but not the Third Letter since it was never made available to the public. Otherwise, the Court found that redactions based on subsection 24(1) of the ATIA were proper.

Whether an alternative mechanism for disclosure of documents existed under either the ITA or the ETA which entitled the Minister to withhold disclosure under subsection 24(1) of the ATIA

The Court did not interpret Top Aces Consulting Inc v Canada (National Defence), 2012 FCA 75 as authority for the proposition that an applicant who fails to pursue an informal process for obtaining documents is disentitled from obtaining them through an access to information request. As a result, the Court concluded that the possibility of making an informal request to the CRA could not deprive Bradwick of entitlement to information under the ATIA.

Whether the Minister was entitled to withhold portions of the documents under subsection 19(1) of the ATIA

Given the public availability of the First and Second Letters, the disclosure of these documents was not prohibited under subsection 19(1) of the ATIA because they fell under the exception of paragraph 19(2)(b).

With regard to the exceptions contemplated in section 8 of the Privacy Act (PA), Bradwick asserted paragraphs 8(2)(a), (b) and (m). Paragraph 8(2)(b) of the PA refers to authorizations to disclose under other Acts or Regulations, which has already been addressed by the analysis above relating to subsection 24(1) of the ATIA. Paragraph 8(2)(a) of the PA permits disclosure of personal information for use consistent with the purpose for which it was obtained. The Court did not apply this paragraph as the information was not collected to assess taxes owed by Bradwick. The Court therefore concluded that the disclosure was not consistent with the purpose for which the information was collected as Bradwick sought the additional information for the purpose of its own tax situation. The information relevant to Bradwick’s tax situation had been produced, and the redactions in issue concerned other persons. The Court also did not apply subparagraph 8(2)(m)(i) of the PA, as no public interest in disclosure was found to clearly outweigh the invasion of privacy that would result from disclosure of the redacted information in question.

In conclusion, other than in respect of the information that was made publicly available in the First and Second Letters, the Court found that all of the redactions under subsection 19(1) of the ATIA were appropriate. Though subsection 19(2) is permissive, and therefore does not require disclosure, no evidence had been put forward that the Minister would not exercise their discretion to produce documents that are not confidential.

Whether the Minister was entitled to withhold portions of the documents under subsection 20(1) of the ATIA

As the First and Second Letters were publicly available, the Court concluded that they were neither confidential nor “treated consistently in a confidential manner.” However, the Court found no evidence that the Third Letter was ever made available to the public; therefore, it concluded it would remain confidential. In conclusion, the redactions from the First and Second Letters pursuant to paragraph 20(1)(b) of the ATIA were improper, but the redactions from the Third Letter pursuant to this paragraph were appropriate.

Whether the Minister was entitled to withhold portions of the information, answers, and documents under paragraphs 16(1)(b) and (c) of the ATIA

Bradwick argued that the redactions made pursuant to paragraphs 16(1)(b) and (c) of the ATIA were inappropriate because these provisions concern criminal investigations, and the investigations at issue here were not criminal. The Court rejected this argument and concluded that all of the redactions made pursuant to paragraphs 16(1)(b) and (c) of the ATIA were appropriate.

Are the firearm serial numbers at issue “personal information” within the meaning of section 3 of the PA and thus exempt from disclosure under subsection 19(1) of the ATIA?

The Court stated that the firearm serial numbers at issue were not inherently personal information because, on their face, they neither identify an individual nor reveal any information about an identifiable individual. The numbers were assigned to and associated with a particular firearm and remained with that firearm regardless of who may own or possess the firearm or who may be associated with the firearm in a given database or registry. In this way, the serial numbers were assigned to a particular firearm rather than to an individual, they did not on their face reveal personal information, and they did not fall within subsection 3(c) of the PA (i.e., they did not constitute “any identifying number, symbol or other particular assigned to the individual”). The serial numbers were primarily information “about an object,” rather than “about an identifiable individual”.

In Gordon v. Canada (Health), 2008 FC 258 (Gordon), in determining what constitutes “personal information”, the Court phrased the relevant question as being whether there is a “serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.” The parties disagreed with respect to three aspects of these tests: the nature of the “serious possibility” and “reasonable to expect” standards; the scope of “available information” to be considered for purposes of the assessment; and the Information Commissioner’s reliance on Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157 (NavCanada).

The Court recognized that “serious possibility” in Gordon and “reasonable to expect” in NavCanada both appear to convey effectively the same standard: a possibility that is greater than speculation or a “mere possibility,” but does not need to reach the level of “more likely than not” (i.e., need not be “probable” on a balance of probabilities).

The Court concluded that the appropriate approach to “available information” was between the Minister’s position and that of the Information Commissioner. The Court agreed with the Information Commissioner that information that is kept confidential in the hands of a federal institution cannot be considered “available” for the purposes of the analysis. Information requested under the ATIA is by definition already held by a federal institution. The purpose of subsection 19(1) of the ATIA is to avoid disclosing personal information to requesters, not to avoid disclosing it to the government institution that already has it. If the information were to be considered personal information simply because the government institution could itself use it to identify an individual, this would effectively capture (and exempt from disclosure) a wide variety of impersonal information. Similarly, the fact an individual may be able to identify themselves from released information does not make the information “personal information”. The goal of the PA and subsection 19(1) of the ATIA is to prevent the undue disclosure of one’s personal information to others, not to oneself. That an individual might know that it is their name that is redacted from a document, for example, does not make the remainder of the document personal information.

On the other hand, limiting the approach to “available information” to information that is available to the public at large, even an “informed and knowledgeable member of the public” as proposed by the Information Commissioner, risks an inappropriate disclosure of personal information and undermines the paramount status of privacy rights. The importance of privacy rights is such that unauthorized release of personal information should be avoided, even if only some members of the public could draw the connections that would link the information to an identifiable individual.

Although the RCMP gave “additional considerations” regarding the potential for using the serial numbers in other manners that might have a negative impact on law enforcement, this evidence was scant and no claim was made by the RCMP that the serial numbers were exempt from disclosure pursuant to section 16 of the ATIA. The Court concluded that there was no serious possibility that the serial numbers could be used, alone or in combination with other available information, to identify an individual. Therefore, the serial numbers were not “personal information” within the meaning of section 3 of the PA, and were not exempt from disclosure under subsection 19(1) of the ATIA.

If the information at issue is “personal information” within the meaning of section 3 of the PA and thus exempt from disclosure under subsection 19(1) of the ATIA, did the RCMP reasonably exercise the discretion set out in subsection 19(2) of the ATIA in refusing to disclose the information?

Having determined that the information was personal information exempt from disclosure under subsection 19(1) of the ATIA, the RCMP concluded that it should not exercise its discretion under subsection 19(2) to nevertheless release the information. However, since the Court found that the information in question is not personal information, subsection 19(2) did not apply. If the Court had concluded otherwise, it would have found that the matter should be sent back to the RCMP for redetermination, as there was no indication that the RCMP gave substantive consideration to the release of the information in the public interest.

Federal Court of Appeal

Citation: 2019 FCA 95

Link: Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95.

Date of decision: April 24, 2019

Provisions of the Access to Information Act: Subsections 19(1) and 19(2), paragraph 21(1)(a), sections 23 and 25

• Subsection 19(1) – Personal information, exemption
• Subsection 19(2) – Personal information, where disclosure authorized
• Paragraph 21(1)(a) – Advice or recommendations
• Section 23 – Solicitor-client privilege
• Section 25 – Severability

Provisions of the Privacy Act: Paragraph 3(l), subparagraph 8(2)(m)(i)

• Paragraph 3(l) – Definition, personal information, discretionary benefit of a financial nature
• Subparagraph 8(2)(m)(i) – Where personal information may be disclosed, public interest

Summary

The Federal Court of Appeal allowed in part the appeals filed by the Prime Minister and the Information Commissioner in respect of the Federal Court’s decision. The Court of Appeal found that most of the information at issue was subject to exemptions under subsection 19(1) (personal information), paragraph 21(1)(a) (advice and recommendations), or section 23 (solicitor-client privilege) of the Access to Information Act (ATIA).

With respect to section 23 of the ATIA, a memorandum prepared by a senior official such as the Clerk of the Privy Council can be solicitor-client privileged when the official is acting as a channel of communication between legal advisers and the ultimate client such that the memorandum was a communication made in furtherance of a function essential to the solicitor-client relationship or the continuum of legal advice provided by the solicitor. Factual information (in an otherwise privileged document) that is inextricably linked to the legal issues under discussion should be treated as part of the privileged communication where its disclosure would reveal the precise subject of the communication or the factual assumptions of the legal advice given or sought.

With respect to the exercise of discretion under paragraph 21(1)(a) or section 23 of the ATIA, while a boilerplate declaration will not be sufficient to show that the head has exercised a discretion reasonably, it is not necessary to provide a detailed analysis of each and every factor that has an impact on the decision and how the factors were weighed against each other. All that is needed is sufficient information for a reviewing court to discharge its role, such as a decision letter that sets out: who decided the matter; their authority to decide the matter; whether that person decided both the issue of the applicability of exemptions and the issue whether the information should, as a matter of discretion, nevertheless be released; the criteria taken into account; and whether those criteria were met and why.

The term “benefit of a financial nature” in paragraph 3(l) of the Privacy Act does not capture the reimbursement of expenses incurred in the course of an officer or employee’s employment where reimbursement is only intended to ensure that employees are not negatively impacted by being made liable for costs they would not otherwise incur.

Issues

• What is the applicable standard of appellate review?
• Was the Privy Council Office (PCO) authorized to refuse the disclosure of the records based on paragraph 21(1)(a) of the ATIA?
• Was PCO authorized to refuse the disclosure of the records based on section 23 of the ATIA?
• To the extent that PCO was authorized to refuse the disclosure of the records based on either sections 21(1)(a) or 23 of the ATIA, did it reasonably exercise its discretion not to disclose these records?
• Was PCO authorized to refuse the disclosure of the records based on subsection 19(1) of the ATIA?
• Did PCO reasonably exercise its discretion not to disclose the information at issue under subsection 19(2) of the ATIA?

Facts

The case concerned a request to PCO for access to records created over several months in 2013 in relation to four Senators whose continued membership in the Senate was the subject of debate. PCO identified 28 pages of responsive records, but withheld 27 of the pages on the basis that they contained personal information (s. 19(1)(a)), information covered by solicitor-client privilege (s. 23), and advice and recommendations to the Prime Minister (s. 21(1)(a)).

The requester complained to the Information Commissioner. On completion of her investigation, the Information Commissioner concluded that the complaint was well founded and recommended that PCO facilitate partial release of the responsive records. PCO largely refused to follow the recommendations on the basis that it had been justified to apply the claimed exemptions and had exercised its discretion reasonably. However, PCO reassessed its application of the severance principle in section 25 in favour of disclosing further information such as signatures, dates and names. The Information Commissioner then applied for judicial review of PCO’s decision.

The Federal Court applied a correctness standard of review to whether the exemptions applied and a reasonableness standard to the exercise of discretion. The Court rejected PCO’s application of subsection 19(1) to some of the requested information. The Court concluded that this information related to information about a discretionary benefit of a financial nature. Such information falls within the exception to the definition of personal information that is found in paragraph 3(l) of the Privacy Act, the effect of which is to exclude the information from being exempt from disclosure pursuant to subsection 19(1) of the ATIA.

The Court agreed that certain information did constitute advice and recommendations to a government institution and could be exempt under paragraph 21(1)(a) but refused to apply the exemption to severable factual portions of the records. The Court also refused to apply the exemption to information that referred to decisions that had been taken based on the advice provided. With respect to the exercise of discretion in relation to those records that were exempt under paragraph 21(1)(a), the Court found it had been reasonably exercised in favour of non-disclosure. The Court held that while factors favouring disclosure were not explicitly set out, they were implicit in PCO’s analysis. While the analysis focused mainly on the factors that militated against disclosure, the Federal Court indicated that one should not conclude the factors favouring disclosure were not weighed in the balance.

The Federal Court agreed with the Information Commissioner that some information should not have been exempted under section 23 because it did not involve communications related to the provision of confidential legal advice. However, where the Court agreed that solicitor-client privilege did apply, the Court found that the discretion had been exercised reasonably to not disclose the information, despite factors favouring disclosure having only been implicitly considered.

Decision

The Federal Court of Appeal allowed in part the appeals filed by the Prime Minister and the Information Commissioner in respect of the Federal Court’s decision.

Reasons

Federal Court of Appeal

Citation: 2019 FCA 98

Link: Yeager v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 98.

Date of decision: April 25, 2019

Provisions of the Access to Information Act: Sections 2 and 3, subsections 4(1) and 4(2.1), sections 6 and 8

• Section 2 – Purpose of Act
• Section 3 – Definition, government institution
• Subsection 4(1) – Right to access to records
• Subsection 4(2.1) – Responsibility of government institutions, duty to assist
• Section 6 – Request for access to record
• Section 8 – Transfer of request

Provision of the Access to Information Regulations: Section 6 – Transfer of request

Summary

The Access to Information Act (ATIA) grants authority for handling access requests to the various government institutions listed under Schedule I to the ATIA and not to the Minister accountable for a particular portfolio. Public Safety and Emergency Preparedness Canada (PSEPC) could not be held to have control of a record that might exist at Correctional Services of Canada (CSC), even if these institutions fell within the same ministerial portfolio.

Section 8 of the ATIA does not make “control of a record” by a government institution a requirement for a valid transfer of a request for access. PSEPC’s decision not to transfer Professor Yeager’s request for access was reasonable.

The presumption that subsection 4(2.1) of the ATIA does not have retroactive application was not rebutted in this appeal. Accordingly, subsection 4(2.1) had no application in this appeal.

Issues

• What is the appropriate standard of review when reviewing the Federal Court’s decision?
• Did the Federal Court err in concluding PSEPC did not have relevant records?
• Did the Federal Court err in its interpretation of section 8 of the ATIA?
• Did the Federal Court err in its conclusion of subsection 4(2.1) of the ATIA?

Facts

Professor Yeager made an access to information request to PSEPC on June 7, 2007. The request was for certain documents related to the then newly announced CSC Independent Review Panel. PSEPC replied on June 15, 2007, 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), providing examples of why he believed that the documents did exist and should be disclosed. The OIC found that the complaint was not substantiated because PSEPC did not possess any responsive records. However, the OIC indicated that CSC might possess responsive records and suggested that Professor Yeager file a separate request to CSC. The OIC also noted that PSEPC should have considered transferring Professor Yeager’s original request to CSC in accordance with section 8 of the ATIA but “this was unfortunately not done.”

Instead of requesting the documents from CSC, Professor Yeager 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 (“portfolio argument”). Professor Yeager also argued that PSEPC erred in saying it held no relevant records and that it did not meet its obligation under subsection 4(2.1) and section 8 of the ATIA.

The Federal Court dismissed Professor Yeager’s application for judicial review. The Court concluded there was no evidence to suggest that PSEPC erroneously stated that it did not hold responsive records. The Federal Court also rejected Professor Yeager’s “portfolio argument” because PSEPC and CSC are listed as separate government institutions under Schedule I to the ATIA. With respect to section 8, the Federal Court concluded that section 8 was never triggered because PSEPC did not have control over the records requested by Professor Yeager.

Decision

The Federal Court of Appeal dismissed Progressor Yeager’s appeal.

Reasons

What is the appropriate standard of review in this case?

The Federal Court of Appeal found that the Federal Court erred on the applicable standard of review relating to whether the 2014 Standard and Directive were constitutional under section 8 of the Charter. The standard of correctness applies to the constitutionality issue.

The Court of Appeal agreed that the standard of reasonableness applies to the issue of the conformity of the 2014 Standard and Directive with section 4 of the Privacy Act.

Are the 2014 Standard and the Directive in conflict with section 8 of the Charter?

The Federal Court of Appeal found that the Federal Court did not err in concluding that the 2014 Standard and the Directive did not breach section 8 of the Charter.

Did the Federal Court err in determining whether paragraph 3(d) of the Directive was contrary to section 4 of the Privacy Act?

The Attorney General of Canada argued that the Federal Court should not have examined the issue of whether the adoption of the Directive was contrary to section 4 of the Privacy Act, and that the appropriate remedy in this case should be a complaint to the Privacy Commissioner under paragraph 29(1)(h) of the Privacy Act.

The Federal Court of Appeal rejected this argument and held that the Federal Court did not err by addressing the issue concerning an alleged conflict with section 4 of the Privacy Act. The complaint process to the Privacy Commissioner cannot be considered an adequate alternative remedy to an alleged breach of section 4 of the Privacy Act because the Privacy Commissioner’s findings and recommendations with respect to complaints are not binding. The Court of Appeal found that the complaint process could not preclude UCCO from filing a judicial review.

Does paragraph 3(d) of the Directive concerning credit checks conform with section 4 of the Privacy Act?

The Federal Court of Appeal relied on the unequivocal wording of section 4 of the Privacy Act and agreed with the Federal Court’s reasoning that the words “relates directly” clearly do not mean “necessary”. The Court of Appeal concluded that the different administrative interpretations from the Treasury Board to the effect that the Privacy Act has always been interpreted as including a “necessity test” are not determinative and do not bind the Court.

The Court of Appeal noted that in 2009 and 2016, the Privacy Commissioner asked the government to amend section 4 of the Privacy Act to include an explicit “necessity test”. Since this has not been done, the Court of Appeal found that its role was not to take the place of Parliament and rewrite section 4 to add a “necessity test”. The Court of Appeal also noted the previous position of a representative of the Attorney General of Canada appearing before a committee of the House of Commons, who suggested that section 4 contained an implicit “necessity test” and therefore there was no need to explicitly add one. Despite this apparent contradiction, the Court of Appeal concluded the lack of the word “necessary” in section 4 is determinative.

Having concluded that section 4 of the Privacy Act does not contain a “necessity test”, the Court of Appeal found that the Federal Court did not err when it found that it was reasonable for the Commissioner of CSC to adopt the Directive since there was a “direct relationship” between the information collected by CSC during the financial inquiry of an officer and the determination of reliability for the purposes of security screening. In support of its conclusion, the Court of Appeal noted the changes in the physical and operational environment of public servants since 1994, the year that the previous Standard was adopted. The Court of Appeal also noted the new security challenges that Canada faces as part of the rationale for adopting the 2014 Standard.