Info Source Bulletin 45A - Federal Court Decision Summaries

Federal Court of Canada

Citation: 2021 FC 1479

Link: Imai v. Canada (Foreign Affairs)

Date of Decision: December 29, 2021

Provisions of the Access to Information Act: Subsection 15(1), paragraph 20(1)(c) and sections 41, 44.1, 49 and 50

• Subsection 15(1) - International affairs and defence
• Paragraph 20(1)(c) - Third party information, disclosure to result in material financial loss or gain
• Section 41 - Review by Federal Court
• Section 44.1 - De novo review
• Section 49 - Order of Court where no authorization to refuse disclosure found
• Section 50 - Order of Court where reasonable grounds of injury not found

Operational Takeaways

• For discretionary, injury-based exemptions, the reviewing Court must determine whether the government institution had “reasonable grounds on which to refuse” disclosure of the information. This review is on a de novo basis and the Court can consider evidence that was not before the government institution when it made the decision to refuse disclosure.
• For an injury-based mandatory exemption, a reviewing Court must determine on a de novo basis whether the exemption had been correctly applied and if the government institution was “authorized to refuse to disclose” the information, taking into consideration the evidence of the parties, which can include evidence that was not before the government institution at the time of the decision.
• To successfully apply subsection 15(1) of the Access to Information Act (ATIA), a two-step process must be followed:
  • Step 1: There must be a reasonable expectation of probable harm to Canada’s international affairs if the information is disclosed.
    • There must be evidence of a” clear and direct connection” between the disclosure of specific information and the injury that is alleged.
    • A party seeking to invoke the exemption need only show that the risk of harm is considerably above a mere possibility, and need not establish on the balance of probabilities that the harm will in fact occur.
  • Step 2: The second step is to decide whether having regard to the significance of the risk and other relevant factors, disclosure should nonetheless be made or refused. There must be a reasonable expectation of probable harm to Canada’s international affairs if the information is disclosed.
    • When refusing disclosure, it is not sufficient for government institutions to declare that all relevant factors were considered, but it is also not necessary for government institutions to provide a detailed analysis of each and every factor that has an impact on the decision or how they are weighed against each other.
• Paragraph 20(1)(c): The Court determined that, when assessing the existence of a reasonable likelihood of injury to a third party that could arise from disclosure, it will do so from the perspective of the decision maker at the time that the decision was made and not in the present.

Summary

The standard of review under subsection 15(1) of the ATIA is reasonableness, and reviewing Courts determine the applicability of the paragraph 20(1)(c) exemption under correctness. Courts review both applications on a de novo basis.

Global Affairs Canada (GAC) properly relied upon the exemptions of the ATIA and reasonably exercised its discretion where required. The Court found there were reasonable grounds on which GAC could refuse disclosure under subsection 15(1) of the ATIA. The Court also found that Goldcorp Inc. (Goldcorp)’s ongoing financial and competitive position would have likely been compromised had the information been disclosed.

Issues

• What is the standard of review for each of the exemptions relied upon by the Minister?
• Did the Minister properly apply the exemptions to the February 2018 Disclosure under the ATIA and where discretionary, did the Minister reasonably exercise such discretion?

Facts

The Marlin Mine, a gold mine in Guatemala owned at the time by a subsidiary of a Canadian mining company Goldcorp Inc., ceased operating in May 2017, after attracting international condemnation for purported environmental and humanitarian failures.

Following a precautionary measures decision by the Inter-American Commission on Human Rights (Commission) against the Government of Guatemala requesting a suspension of the operations at the Marlin Mine, the Government of Guatemala issued its official response to the Commission’s decision, stating that the claims of environmental contamination were unsubstantiated but that it would initiate its own investigation into the allegations. Canada did not take part in the Commission’s decision and was not a party to the proceedings before the Commission. However, following Goldcorp’s request for support, the Canadian government and embassy staff in Guatemala engaged with the Guatemalan government, the Commission and Goldcorp in relation to the Marlin Mine situation. In the end, mining operations were not suspended, and the Commission modified its decision by lifting the request for the Government of Guatemala to suspend operations at the Marlin Mine.

Professor Imai sought disclosure of records from GAC, by way of an ATIA request, relating to the Canadian government’s response to the Commission’s 2010 precautionary measures decision and its role in the Commission’s reversal of that decision. In response to the request, GAC disclosed several hundred pages of documents to Professor Imai, prompting a narrower request dealing only with the communications between GAC, Goldcorp and the Commission from the date that the Commission requested Guatemala to suspend operations at the Marlin Mine to the date that the Commission reversed its decision. Over time, GAC disclosed additional documents in response to the ATIA request, culminating on February 28, 2018, when GAC provided Professor Imai with its fifth and final release disclosure package (February 2018 Disclosure). This package contained 36 pages of documents of which 20 pages included redactions.

The Office of the Information Commissioner (OIC)’s final report concluded that GAC had applied the exemptions pursuant to subsections 15(1) and 19(1) as well as paragraphs 20(1)(b), 20(1)(c), 21(1)(a) and 21(1)(b) of the ATIA in accordance with the Act and that where such application was discretionary, GAC had reasonably exercised its discretion. In addition, as concurrent exemptions were applied pursuant to paragraphs 13(1)(a), 13(1)(b) and 20(1)(d) of the ATIA to some of the same information, the OIC did not find it necessary to consider whether the refusal to disclose the same information could also be justified pursuant to these additional paragraphs of the ATIA.

Professor Imai brought an application for judicial review under section 41(1) of the ATIA, limited to the redactions on the 20 pages received as part of the February 2018 Disclosure.

Decision

The Court dismissed the judicial review application with costs of $5,000 to be paid by Professor Imai to the Minister.

Reasons

Federal Court of Canada

Citation: 2021 FC 1180

Link: Rundel v. Canada (Public Safety and Emergency Preparedness)

Date of Decision: November 5, 2021

Provisions of the Access to Information Act: Section 7, subsection 10(3), section 41 and 44.1, and subsection 48(1)

• Section 7 - Notice where access requested
• Subsection 10(3) - Deemed refusal to give access to a record
• Section 41 – Review by Federal Court
• Section 44.1 - De novo review
• Subsection 48(1) - Order of Court where no authorization to refuse disclosure found

Operational Takeaways

• When examining whether the government institution conducted a reasonable search, the Court considered the breadth and scope of the search, and the institution’s interpretation of the request.
• The breadth and scope of the search requires government institutions to assign the search tasking to all areas that could have responsive records.

Summary

Mr. Rundel commenced an application under section 41 of the Access to Information Act (ATIA) alleging that the Royal Canadian Mounted Police (RCMP) failed to provide all records responsive to a request he had made under the ATIA and that the RCMP was unreasonably delayed in its response.

The Court concluded that the RCMP had failed to meet the 30-day time limit for responding to Mr. Rundel’s access request. However, the Court found that in light of steps the RCMP took following the investigation and recommendations by the Office of the Information Commissioner (OIC), the RCMP had discharged its burden to search for and disclose the relevant records in response to Rundel’s access request.

Issues

• Whether the Department of Public Safety and Emergency Preparedness had discharged its burden to search for and disclose all relevant records in response to the Request pursuant to subsection 48(1) of the ATIA.

Facts

On August 19, 2013, Mr. Rundel submitted an access to information request to the RCMP for all communications leading to, and following, the issuance of a RCMP Performance Log regarding the actions of Mr. Rundel as they related to an incident that had occurred at the Vancouver International Airport. Mr. Rundel also submitted two other access to information requests, one of which sought records related to an alleged internal RCMP report authored by Superintendent Wade Blizard (the “Blizard Report”). The RCMP denied the existence of the Blizard Report.

On August 1, 2014, the RCMP disclosed records in response to the Request, withholding some information under subparagraph 16(1)(a)(ii) of the ATIA. Mr. Rundel then filed a complaint with the OIC alleging that the RCMP failed to provide all records responsive to the Request and that the RCMP was unreasonably delayed in its response.

The RCMP subsequently issued a further call-out, or re-task, for documents responsive to the Request and disclosed additional records it had located, withholding some information under subparagraph 16(1)(a)(ii) and subsection 19(1) of the ATIA.

The OIC wrote to the RCMP to report the initial results of its investigation of the complaint. The OIC stated that it was largely satisfied with the breadth of the RCMP’s tasking, subject to one area that appeared likely to contain responsive records, but which had not been tasked to search. The OIC also found that the RCMP had interpreted the Request too narrowly, thereby incorrectly limiting its search. As a result, the OIC determined that the RCMP had not conducted a reasonable search and provided two recommendations to address the aforementioned concerns.

The RCMP implemented the OIC’s recommendations and disclosed further records to Mr. Rundel, withholding some information under sections 13(1)(c), 16(2), 19(1), and 23 of the ATIA.

The OIC subsequently issued its final investigation report. While the OIC determined the complaint to be well-founded, the OIC confirmed that the RCMP had accepted its earlier recommendations, conducted new searches for additional records, and provided additional responsive records.

Pursuant to subsection 41(1) of the ATIA, Mr. Rundel sought a review of the RCMP’s disclosure in response to the Request.

Decision

The Department of Public Safety and Emergency Preparedness discharged its burden to search for and disclose the relevant records in response to the Request pursuant to subsection 48(1) of the ATIA.

Reasons

The Court separated the subject matter of the complaint into two parts. First, the timeliness of the Department of Public Safety and Emergency Preparedness’s provision of access (the “Delay Complaint”) and, second, the reasonable search and disclosure of all relevant records (the “Search Complaint”).

1. The Delay Complaint

   The Court noted that the Department of Public Safety and Emergency Preparedness received the Request on August 23, 2013, but did not provide responsive records until August 1, 2014, about one year later.

   The Court stated that where the head of a government institution fails to meet the 30-day time limit, it shall be deemed to have refused access in accordance with subsection 10(3) of the ATIA. The Court held that the Department of Public Safety and Emergency Preparedness clearly failed in this regard and expressed sympathy for the frustration and efforts of Mr. Rundel to obtain relevant records. Nevertheless, the Court expressed the view that no apparent prejudice or injury to Mr. Rundel appeared to have resulted from the delay. On this point, the Court stated that the Department of Public Safety and Emergency Preparedness had since disclosed numerous records on four different occasions and that the OIC reported the complaint regarding delay to have been resolved.

2. The Search Complaint

   The Court stated that, pursuant to subsection 48(1) of the ATIA, the onus is on the Department of Public Safety and Emergency Preparedness to discharge its burden that it reasonably conducted its search for records in response to the Request.

   The Court noted that the Department of Public Safety and Emergency Preparedness had provided evidence demonstrating its multiple searches re-tasked throughout various relevant divisions and, upon the recommendation of the OIC, that it increased both the breadth and scope of its search to include another RCMP division and less restrictive keywords. The Court also noted that, in its final report, the OIC had found that though the complaint was well-founded, the Department of Public Safety and Emergency Preparedness had implemented its recommendations and further disclosure was made.

   The Court determined that Mr. Rundel had not provided substantive evidence or argument to refute the Department of Public Safety and Emergency Preparedness’s position. Specifically, Mr. Rundel was provided an opportunity to cross-examine the evidence but did not. The majority of Mr. Rundel’s written submissions and evidence did not speak to the issue in this proceeding, and certain evidence introduced focused more broadly on the conduct of the RCMP.

   The Court noted that, during the hearing, Mr. Rundel focused his attention on the lack of disclosure of the Blizard Report and related records that were presumably reviewed by Superintendent Blizard in the preparation of the Blizard Report. The Court reiterated that the RCMP had denied the existence of the Blizard Report in response to a different ATIP request and noted that the Blizard Report appeared to have been discussed in terms of disciplinary matters, which were outside the scope of the Request. Upon review of the records that may have been reviewed by Superintendent Blizard, the Court held that they appeared to be outside the scope of the Request because they were outside the date range specified in the complaint or referred to disciplinary or other matters outside the scope of the Request.

   Mr. Rundel had also described a secret RCMP drive, which he believed may have held records that he was seeking and that have not been disclosed. The Court concluded that there was no evidence that relevant information relating to the Request existed in the drive or that it had not been searched by the RCMP.

   The Court stated that, while it is regrettable that the Department of Public Safety and Emergency Preparedness required an OIC investigation to motivate a thorough and reasonable search, it appears on the record that such a reasonable search and disclosure was eventually achieved. The Court concluded that the Department of Public Safety and Emergency Preparedness had discharged its burden to search for and disclose the relevant records in response to the Request pursuant to subsection 48(1) of the ATIA.

Federal Court of Canada

Citation: 2021 FC 896

Link: Schoendorfer v. Canada (Attorney General)

Date of Decision: August 30, 2021

Provisions of the Access to Information Act: Subparagraph 16(1)(a)(ii), section 44.1

• Subparagraph 16(1)(a)(ii) – Lawful investigations into the enforcement of any law of Canada or a province
• Section 44.1 - De novo review

Operational Takeaways

• Although section 44.1 of the Access to Information Act (ATIA) provides that an application for judicial review is to be conducted as a new proceeding, the Court has considered the Office of the Information Commissioner’s (OIC) report in its review.
• When a record falls within the exemption provided by subparagraph 16(1)(a)(ii), the deceased’s personal information it contains is protected for 20 years following his/her death.
• Compassionate grounds may be considered when applying the discretionary exemption set out in subparagraph 16(1)(a)(ii).
• In obiter, the Court notes that the OIC’s report, highlighted “shortcomings in the interplay between the Privacy Act and the ATIA in their current form”.
  • The Commissioner recommended amendments to section 26 of the Privacy Act and section 19 of the ATIA, to provide discretion to disclose personal information about a deceased person to their spouse or close relative for compassionate reasons.
  • The Court notes that, if the change occurs, it could allow the applicants to obtain further information. 

Summary

Ms. Schoendorfer brought an application under section 41 of the ATIA (the “Application”) in respect of a refusal by the Royal Canadian Mounted Police (RCMP) to provide access to certain records sought by Ms. Schoendorfer.

The Court determined that the RCMP had correctly applied subparagraph 16(1)(a)(ii) of the ATIA and reasonably exercised their discretion to withhold records from Ms. Schoendorfer. The Court dismissed the Application.

Issues

The Court identified two issues to be determined in the Application:

• Whether the non-disclosure of the records withheld or redacted by the RCMP fall within the exemption claimed under subparagraph 16(1)(ii)(a) of the ATIA.
• If any or all of the records do fall within the exemption, the next issue is whether the RCMP reasonably exercised its discretion to redact or withhold the records from Ms. Schoendorfer.

Facts

Ms. Schoendorfer submitted an access to information request for records related to an investigation involving her deceased son who died by suicide. The RCMP disclosed some records but withheld others on the basis that they fell within the exemption in subparagraph 16(1)(a)(ii) of the ATIA.

On August 7, 2019, Ms. Schoendorfer complained to the OIC that the RCMP had improperly applied exemptions under the ATIA.

The OIC requested the RCMP provide more details of the reason behind the decision to exempt the portions they did and to re-examine their application of subparagraph 16(1)(a)(ii). Specifically, on the basis that the complaint could meet the requirements of compassionate disclosure, the OIC asked the RCMP to look again at whether discretion was reasonably exercised.

The RCMP agreed to take another look at the file. On January 7, 2020, the RCMP confirmed they had done so and found that in the circumstances the file did not meet the requirements of compassionate disclosure.

On January 31, 2020, the OIC provided its final report to Ms. Schoendorfer stating that the OIC was satisfied the RCMP had met their obligations under the ATIA. The OIC indicated that the request to the RCMP to reconsider was made “with a view to determin[ing] whether there may be a broader interest in disclosure of a deceased individual’s personal information to a close relative in order to facilitate an understanding of the circumstances of a loved one’s death.”

The OIC advised Ms. Schoendorfer that the RCMP ultimately maintained that the ATIA and the Privacy Act warranted the information at issue being withheld. The OIC opined that based on the current legislation and the Privacy Act, the RCMP was justified in refusing to disclose the information withheld under subparagraph 16(1)(ii)(a). The OIC considered Ms. Schoendorfer‘s complaint to be not well founded.

Decision

The Court concluded that the RCMP correctly applied subparagraph 16(1)(a)(ii) of the ATIA and that the RCMP reasonably exercised their discretion to withhold records from Ms. Schoendorfer. The Court dismissed the Application, without costs.

Reasons

Federal Court of Canada

Citation: 2021 FC 229

Link: Constantinescu v. Correctional Service of Canada

Date of Decision: March 16, 2021

Provisions of the Access to Information Act: Paragraph 10(1)(a), section 41

• Paragraph 10(1)(a) – Where access is refused, record does not exist
• Section 41 - Review by Federal Court

Operational Takeaways

• A refusal to disclose on the basis that the requested record does not exist is considered a refusal when it is made pursuant to paragraph 10(1)(a) of the Access to Information Act (ATIA) and communicated under paragraph 7(a) of the ATIA. In such cases, the Court has jurisdiction to hear the application for review under section 41 of the ATIA.
• There is no refusal where, following disclosure of records in response to an access request, the government institution states that no further records exist. In this case, the Court has no jurisdiction under section 41 of the ATIA unless there is evidence, beyond mere suspicion, that the records exist and have been withheld.
• The applicant must demonstrate that the assertion that “the requested records do not exist” is in fact a pretext for refusing disclosure.
• When the head of an institution states that records do not exist, it may be directed to file ancillary documents relevant to the existence of the requested documents to assist the Court in its review.
• A mere suspicion or belief on the part of the applicant as to the possibility that such documents exist is generally not sufficient.

Summary

There is no refusal where, following disclosure of records in response to an access request, the government institution states that no further records exist. In the latter case, the Court has no jurisdiction under section 41 of the ATIA unless there is evidence, beyond a bald suspicion, that the records exist and have been withheld.

Issues

• What is the standard of review?
• Is there any evidence, beyond mere suspicion, that the information sought through the Access Request exists and is in the possession of CSC?

Facts

Ms. Constantinescu had complained to the Correctional Service of Canada (CSC) that during Correctional Training Program professional training courses she attended that another attendee (“the alleged perpetrator”) had an inappropriate behaviour of a sexual nature and intimidation. An internal disciplinary investigation found that there was insufficient evidence to support the claim and dismissed the complaint. Ms. Constantinescu’s subsequent complaint to the Canadian Human Rights Commission was similarly recommended to be rejected but was nevertheless referred to the Canadian Human Rights Tribunal (CHRT). During the course of the CHRT matter, Ms. Constantinescu was given a copy of an undated statement from the alleged perpetrator.

Ms. Constantinescu asked CSC pursuant to section 4 of the ATIA for access to records containing information about the circumstances in which the alleged perpetrator’s statement had been made. After searching for the requested information, CSC’s Access to Information and Privacy Division (CSC ATIP Division) informed Ms. Constantinescu that it had no records related to her access request.

Ms. Constantinescu complained to the Office of the Information Commissioner that CSC ATIP Division’s search had been incomplete. The Commissioner’s subsection 37(2) report concluded that CSC ATIP Division had conducted a reasonable search.

Ms. Constantinescu then sought review of CSC’s refusal to disclose the requested records. During the lead-up to the hearing of the application, CSC legal counsel informed Ms. Constantinescu that the alleged perpetrator had died.

Decision

The application was dismissed without costs.

Reasons

Federal Court of Canada

Citation: 2021 FC 138

Link: Suncor Energy Inc. v. Canada-Newfoundland and Labrador Offshore Petroleum Board

Date of Decision: March 1, 2021

Provisions of the Access to Information Act: Subsection 19(1) and paragraphs 20(1)(b) and 20(1)(d)

• Subsection 19 (1) – Personal information
• Paragraph 20 (1)(b) – Third party information, financial, commercial, scientific or technical information
• Paragraph 20 (1)(d) – Third party information, disclosure to interfere with contractual or other negotiations

Operational Takeaways

• The names and contact information of employees of a company are personal information. However, if personal information is publicly available (e.g., via LinkedIn), the government institution can exercise its discretion to disclose that information pursuant to subsection 19(2) of the Access to Information Act (ATIA).
• The exercise of discretion, pursuant to subsection 19(2) of the ATIA, is reviewable by the Courts on the standard of reasonableness.
• The Court found that an individual from Suncor corresponding with the Board in the course of employment was transactional and did not reveal personal information. Suncor’s characterization of this fact as “Individual Involvement” did not change the nature of the information, make it personal information or change the facts about public availability.
• There was no evidence of a reasonable expectation that the disclosure of the information would interfere with any negotiations in connection with litigation. In any event, the Court determined that “litigation” is not synonymous with “negotiation.”

Summary

The Court held that the names and contact information of certain employees of Suncor Energy Inc. (Suncor), which the Canada-Newfoundland and Labrador Offshore Petroleum Board (Board) proposed to disclose, is “personal information” within the scope of subsection 19(1) of the ATIA. However, the Board reasonably determined that this information was publicly available via LinkedIn within the meaning of paragraph 19(2)(b) of the ATIA and the Board reasonably exercised its discretion to disclose that information. The Court also held that Suncor failed to meet its evidentiary burden to show its entitlement to the benefits of paragraphs 20(1)(b) and 20(1)(d) of the ATIA.

Issues

• What is the applicable standard of review for an application brought under section 44 of the ATIA?
• Are the names and contact information of certain employees of Suncor exempted as personal information under subsection 19(1) of the ATIA?
• Are Suncor’s geographical survey information and geographical information related to its exploration activities caught by the exceptions in paragraphs 20(1)(b) or 20(1)(d) of the ATIA?

Facts

Pursuant to section 44 of the ATIA, Suncor sought review of two decisions made by the Board under the ATIA. On September 16, 2016, the Board received the first of the two ATIA requests that are the subjects of this decision. For the first ATIA request, the Board notified Suncor of the request, via letter, and enclosed copies of the documents it identified as being responsive to the request. The documents consisted of eight letters, dated April 26, 1985 to March 22, 1989, exchanged between Suncor and the Board regarding the reproduction of certain geophysical surveys and the submission of geophysical surveys by Suncor. The letters also included the names and contact information of Suncor’s employees. Suncor responded and challenged the disclosure of the documents, as a whole, pursuant to paragraph 20(1)(d) of the ATIA. It also challenged the disclosure of parts of the document pursuant to subsection 19(1) and paragraph 20(1)(b) of the ATIA.

More specifically, Suncor alleged that, based on the nature of the ATIA request, the requester is likely Geophysical Services Inc, with whom Suncor is currently negotiating in the context of an ongoing litigation. Accordingly, Suncor submitted to the Board that the disclosure of the documents would interfere in those negotiations and that the information was exempt from disclosure pursuant to paragraph 20(1)(d) of the ATIA. Suncor also claimed that certain information was financial, commercial, scientific or technical information that it treated in a confidential manner, and claimed an exemption from disclosure pursuant to paragraph 20(1)(b) of the ATIA. Suncor also submitted that the names and contact information of its employees were personal information and should be redacted pursuant to subsection 19(1) of the ATIA.

On August 2, 2016, the Board received another ATIA request and it notified Suncor of this request. The Board provided Suncor with an opportunity to respond to enclosed documents it had identified as being relevant to the request, which it proposed to disclose. Similar to the first request, Suncor challenged the Board’s proposal to disclose the information by citing subsection 19(1) and paragraphs 20(1)(b) and (d) of the ATIA. After multiple correspondences between the two parties, the Board notified Suncor that it intended to proceed with disclosure for both ATIA requests unless an application for judicial review were to be filed with the Court.

Decision

The applications for judicial review were dismissed with costs to Suncor. There was no reviewable error in the manner by which the Board dealt with the two access requests.

Reasons

Federal Court of Canada

Citation: 2021 FC 164

Link: Beniey v. Canada (Public Safety and Emergency Preparedness)

Date of Decision: February 19, 2021

Provisions of the Access to Information Act: Subsection 19(1) and section 25

• Subsection 19(1) – Personal information, exception
• Section 25 – Severability

Provisions of the Privacy Act: Paragraph 3(j)

• Paragraph 3(j) – Definition – Personal information

Operational Takeaways

• For the purposes of section 19 of the Access to Information Act (ATIA), information contained in a video recording concerning government employees in the performance of their work responsibilities is not personal information to which access must be denied.
• The exception in paragraph 3(j) of the definition of “personal information” in the Privacy Act applies to this type of information.
• The list of examples in section 3(j) of the Privacy Act under the definition of “personal information” is not exhaustive.
• The faces of employees seen on recordings will normally constitute information about “an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual” that must be disclosed in response to an access to information request.

Summary

Although the image of the Canada Border Services Agency (the Agency) employees contained personal information within the meaning of the introductory provision of section 3 of the Privacy Act, this information is covered by the exception provided for in paragraph (j) of the same section.

Therefore, the faces of Agency employees on the video recordings constituted information about “an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual” that was required to be disclosed in response to the access to information request.

Issues

• Did the Agency err in its interpretation of subsection 19(1) of the ATIA?
• If not, could the Agency nevertheless disclose the requested video recordings pursuant to section 25 of the ATIA?

Facts

Mr. Beniey is a former employee of the Agency. On July 3, 2017, he was assigned to the Travellers’ section of Queenston Bridge in Niagara-on-the-Lake to a shift that was scheduled to end at midnight. An altercation with one of his supervisors occurred when he was asked to remain at his workstation until someone arrived to relieve him, which he considered was beyond the end of his shift. On the same day, the Agency initiated an investigation into Mr. Beniey’s conduct.

On July 29, 2017, Mr. Beniey submitted an access to information request under the ATIA for the video recordings taken at his place of work during the evening.

The Agency has a video recording retention policy with a retention cycle of 30 days. Some of the requested videotapes had therefore been destroyed. Those that were not destroyed were kept by the Agency as part of its investigation of Mr. Beniey’s conduct.

Mr. Beniey filed a complaint with the Information Commissioner of Canada (the Commissioner), alleging that he had received only a portion of the requested video recordings, which, moreover, were altered.

On December 14, 2018, the Commissioner released the results of the investigation which stated that, according to the Agency’s security video recording retention policy, the retention cycle is 30 days and therefore some of the requested video recordings had been destroyed. Those that were not destroyed were kept by the Agency as part of its investigation of Mr. Beniey’s conduct.

The Commissioner asked the Agency to re-disclose a number of video recordings that were in “fast forward” mode for easier viewing, which the Agency complied with.

However, the Commissioner upheld the Agency’s position that only the video recordings in which Mr. Beniey appeared could be released to him since “[translation] the use of video cameras in a workplace is governed by a clear framework concerning the right to privacy.” The Commissioner therefore dismissed Mr. Beniey’s complaint.

Mr. Beniey’s action was thus limited to what was withheld from him and was based on subsection 41(1) of the ATIA.

Decision

The Court granted Mr. Beniey’s application for judicial review and ordered the Agency to disclose the video recordings of the images captured at the Travellers’ section of the Queenston Bridge in Niagara-on-the-Lake. Costs were awarded to Mr. Beniey.

Reasons

Federal Court of Canada

Citation: 2020 FC 1103

Link: Samsung Electronics Canada Inc. v. Canada (Health)

Date: January 29, 2021 (Confidential Judgment and Reasons issued on November 30, 2020)

Provisions of the Access to Information Act: Paragraphs 20(1)(b) and 20(1)(c)

• 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

Operational Takeaways

• To determine if the information qualifies as commercial, other than when it is inherently commercial, the context in which it is provided is a central interpreting factor. Recalls fall outside of the normal conduct of a commercial enterprise’s affairs.
• Information merely arising in parallel with a commercial enterprise’s existence may not qualify for exemption under paragraph 20(1)(b) of the Access to Information Act (ATIA).
• It is not because the information is treated as confidential within the business that it will be considered confidential for the purpose of paragraph 20(1)(b) of the ATIA.
• Recalls relate to consumer and public safety. It is not objectively reasonable for a third party to expect confidentiality for the portions of records that came into existence only to fulfill an obligation under the Canadian Consumer Product Safety Act (CCPSA).
• For the purpose of paragraph 20(1)(c) of the ATIA, third parties have an onus to show corroborating or objective evidence of harm resulting from the disclosure, beyond a mere possibility.
• Representations made by an institution following a decision regarding the release of records can impact the validity of the decision and, consequently, the beginning of the 20-day period during which third parties can seek judicial review of the decision.

Summary

Samsung Electronics Canada Inc. (Samsung) properly brought the judicial review with respect to the August decision by the Minister of Health (Health Canada). The Court found that Health Canada only made one final section 28 decision, which was the August decision. In the alternative, Samsung could rely on the doctrine of promissory estoppel in this context as a shield to prevent Health Canada from rescinding what the Court has now found to be a properly made final decision.

Samsung failed to establish that the records at issue should be exempt from disclosure pursuant to paragraph 20(1)(b) of the ATIA, because the information was not “technical” or “commercial” in nature, nor should Samsung have had an expectation of confidentiality.

Samsung failed to establish that the records at issue should be exempt from disclosure pursuant to paragraph 20(1)(c) of the ATIA, because the evidence was insufficient to demonstrate that the reasonable expectation of harm was beyond a mere possibility or speculation.

Issues

1. Preliminary Issues:

   • Can a government institution make more than one section 28 decision?
   • Is the doctrine of promissory estoppel applicable?

2. Substantive Issues:

   • What is the Standard of Review?
   • Are the records exempt from disclosure under ATIA paragraph 20(1)(b)?
   • Are the records exempt from disclosure under ATIA paragraph 20(1)(c)?

Facts

In 2016, Samsung became aware of a number of incidents involving its washing machines, whereby the top lids of certain washing machines detached while in use, causing damage to property, but no injuries or deaths. Samsung communicated information regarding these incidents to Health Canada, pursuant to its obligations under the CCPSA. Samsung initiated a recall of the washing machines, and the recall notice was posted on Samsung’s and Health Canada’s respective websites.

In January 2018, Health Canada received an access to information request for disclosure of records related to the recall. The request sought a copy of the full Health Canada file concerning the recall of Samsung washing machines, including all correspondences exchanged between Samsung and Health Canada, as well as the total number of units sold for each of the models listed in the recall notice.

By letter dated April 20, 2018, Health Canada notified Samsung of the records it had identified as responsive to the access request pursuant to subsection 27(1) of the ATIA – third party notification. Health Canada provided Samsung with an intended release package. The records contained both information that was publicly available through the recall notices, and information that Samsung had provided to Health Canada pursuant to the CCPSA. Samsung responded to Health Canada’s section 27 third party notification and explained that certain records ought to be exempt pursuant to section 20 of the ATIA as Samsung had consistently treated much of the proposed release package as confidential business information, had only supplied the records to Health Canada on the understanding that the records would remain confidential, and that their disclosure would prejudice Samsung’s competitive position.

On July 9, 2018, Health Canada advised Samsung that, pursuant to section 28 of the ATIA, a decision letter was sent with the package of proposed redactions, and that should Samsung disagree with the scope of disclosure, they would need to apply to the Federal Court for a judicial review. Health Canada also indicated that they would be “willing to listen to any specific and limited additional redactions [that Samsung] may deem absolutely necessary.” After further correspondences, Health Canada sent an email on July 27, 2018, advising Samsung that the July decision was “officially retracted.”

On August 16, 2018, Samsung received Health Canada’s second section 28 notice, which contained a narrower release package (the August decision). On September 5, 2018, Samsung filed an application for review with the Federal Court of the August decision.

Decision

The application was properly brought with respect to the August decision. However, the application failed to meet the tests required for exemption from disclosure of the records under either paragraphs 20(1)(b) or 20(1)(c) of the ATIA.

Reasons

1. A. Preliminary Issues:

   Can a government institution make more than one section 28 decision?

   Health Canada claimed that it had issued two decisions, one in July and another in August, and that Samsung ought to have challenged the July decision and not the August decision. It argued that the August decision was made in error and that it was void and had no effect because the ATIA regime grants the heads of government the authority to make only one decision regarding an access to information request.

   The Court disagreed with Health Canada due to four factors: “Health Canada […] (i) invited [Samsung] to provide further representations regarding disclosure after it had issued the July Decision; (ii) stated that it was “officially retracting” the July Decision following discussions with [Samsung]; (iii) used the language of “final decision” in relation to the August Decision; and (iv) narrowed the scope of the disclosure package consistently throughout discussions with [Samsung] until the company commenced this application, after which Health Canada made no further decisions regarding disclosure.” The Court found that the only legal section 28 decision made was the August decision.

   Is the doctrine of promissory estoppel applicable?

   The Court agreed with Samsung that the doctrine of promissory estoppel could apply in the circumstances as an alternative ground for rejecting the Health Canada’s position that the only the July decision stands. The Court held that Health Canada could not retract its July decision based on an error, engage in further negotiations on the promise of a prospective final decision, render that final decision, and then claw back that decision after litigation starts to prevent Samsung from challenging the decision. The Court agreed with Samsung asserting the promissory estoppel doctrine as a shield to prevent Health Canada from rescinding a properly made final decision.

2. B. Substantive Issues:

   What is the Standard of Review?

   A clear indication that the legislature intended a different standard to apply rebuts the presumption of reasonableness as the default standard of review for judicial reviews (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Due to section 44.1 of the ATIA, which provides that the judicial review is a de novo review, the appropriate standard of review in ATIA cases is a correctness review.

   Are the records exempt from disclosure under ATIA paragraph 20(1)(b)?

   The Court described the four-part test for the applicability of paragraph 20(1)(b) of the ATIA: (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. (Air Atonabee Ltd v Canada (Minister of Transport) (1989), 27 FTR 194 at 19, [1989] FCJ No 453 (QL) (FCTD); see also Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at para. 133 [Merck] and Bombardier Inc v Canada (Attorney General), 2019 FC 207 at para. 43.) If all four criteria are met, then the head of a government institution has no discretion with respect to its disclosure obligations.

   The Court concluded that Samsung failed to establish that the information met the first two criteria of the paragraph 20(1)(b) test: the information was not “financial, commercial, scientific or technical” in nature, and the information was not confidential.

   1. (a) Was the information “financial, commercial, scientific or technical” in nature?

      For the first criterion of the paragraph 20(1)(b) test, the Court noted that the terms “financial, commercial, scientific or technical” are to be given their “ordinary dictionary meanings”, and that disputed information need not have any inherent value to meet the criterion.

      Starting with “technical information”, the Court relied on common online dictionaries to define the term “technical”: “[a person] having knowledge of or expertise in a particular art, science, or other subject; skilled in the formal and practical techniques of a particular field” … information relating to “the sort of machines, processes, and materials that are used in industry, transport, and communications” … “to the practical use of machines or science in industry, medicine, etc.,” and “having special knowledge especially of how machines work or of how a particular kind of work is done” ….” The Court also noted that not everything that relates to a consumer product necessarily qualifies as technical. The Court was not persuaded that the records at issue contained “technical” information, as the term is commonly defined.

      Turning to the term “commercial” information, the Court examined the definition of “commercial” found in three online dictionaries, but then dismissed these definitions noting that they were exceedingly broad, and could potentially capture almost any information relating to a business or organization, regardless of its purpose or context.

      The Court examined various jurisprudence that considered the term “commercial” in the ATIA context. All of the cases relied on definitions that were narrower than the cited dictionary definitions. In consideration of the jurisprudence, the Court made two observations: (1) an overly narrow definition would be contrary to the ordinary meaning envisioned by the Supreme Court of Canada in Merck, while an overly broad definition would risk eroding the ATIA’s objective to facilitate democracy and ensuring exemptions from disclosure are limited and specific, and; (2) information must be inherently commercial to warrant an exemption from disclosure and the information cannot merely be collected or created in the course of business.

      The Court concluded that the information in the records at issue was not the type of information that was intended to be exempt from disclosure as it was not commercial in nature. Rather, the information related to public safety, and it was submitted to Health Canada in furtherance of the CCPSA’s purpose to protect the public.

      Neither party suggested that the information was “scientific” or “financial” in nature.

   2. (b) Was the information “confidential”?

      For the first criterion of confidentiality, i.e. information was not publicly available, Health Canada argued that although certain parts of the records were not public, a member of the public could nonetheless obtain them through independent observation or by surveying customers. Health Canada also argued that similar information relating to product recalls is regularly released. The Court disagreed noting that the information was not publicly available as the records had not otherwise been released or published.

      In regard to the second criterion, i.e. reasonable expectation of confidence, the Court noted that just because a third party considers information confidential does not alter Health Canada’s duty to comply with its own statutory obligations to collect and disclose information as required by law. The Court noted that the CCPSA required Samsung to compile and provide the records to Health Canada. This statutory obligation did not create a right or expectation of confidentiality between Samsung and Health Canada. The Court summarized this issue by stating that although Samsung subjectively expected the information in the record to remain confidential, its expectation was not objectively reasonable. The Court concluded that Samsung’s expectation of confidentiality was not reasonable in the regulatory context.

      Finally, on the third criterion, i.e. confidentiality and the public interest, the Court held that not disclosing records related to a product recall would undermine a strong public interest in obtaining access to the information.

Federal Court of Canada

Citation: 2021 FC 47

Link: Blank v. Canada (Justice)

Date of Decision: January 13, 2021

Provisions of the Access to Information Act: Section 4, subsection 9(1), section 41 and subsection 47(1)

• Section 4 - Right to access to records
• Subsection 9(1) – Extension of time limits
• Section 41 - Review by Federal Court
• Subsection 47(1) - Court to take precautions against disclosing, application for review

Operational Takeaways

• In an application for judicial review under section 41 of the Access to Information Act (ATIA), an applicant can not avail himself of Federal Courts Rules 317 and 318 to obtain tribunal records that were withheld under the ATIA.
• An application under section 41 of the ATIA is distinguished from the application for judicial review under section 18.1 of the Federal Courts Act. The ability to apply to the Court for judicial review if access to a requested record is refused is found in section 41 of the ATIA.
• A Rule 317 request for certified records is outside the purview of the Court in an application made under section 41 of the ATIA. Under this section, the reviewing authority of the Court is limited to the power of ordering access to a specific record, when access had been denied contrary to the legislation.

Summary

The standard of review found in Housen v. Nikolaisen, 2022 SSC 33 applies to discretionary orders of prothonotaries. The discretionary orders of prothonotaries should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error in regard to the facts. This standard applies to questions of fact or mixed fact and law and inferences of fact.

The Prothonotary did not err in fact or law in her analysis nor committed any palpable and overriding error with regard to the facts that affect the outcome of this motion. There is no conflict between the Federal Courts Rules and the ATIA. The production of a certified tribunal record (CTR) under Rule 317 of the Federal Courts Rules is not available in a section 41 review hearing under the ATIA.

Issues

• What is the standard of review on appeal from a Prothonotary?
• Did the Prothonotary err in law and make a palpable and overriding error such that the Order should be overturned?

Facts

Mr. Blank appealed an order by a Prothonotary sitting as a Case Management Judge.

The Prothonotary dismissed Mr. Blank’s motion under Rules 317 and 318 of the Federal Courts Rules in which he sought an order requiring the Minister of Justice and the Attorney General of Canada to send a certified copy of all records generated by the material gathering process between May 1, 2003 to May 1, 2004.

Mr. Blank filed an Access Request on August 12, 2010. He received responses on November 1, 2010, January 12, 2011, May 14, 2014 and October 16, 2018. He received approximately 452 pages of the estimated 1600 pages generated in response to his Request. The stated reason of the Department of Justice for not delivering all the materials generated was “because of duplication and irrelevance.”

On November 10, 2010, after receiving the first Request response, Mr. Blank filed a complaint with the Office of the Information Commissioner (OIC). He now sought to receive the other approximately 1050 pages so that he might understand the reasons for the exclusion of those materials and the rationale for exempting the records. The OIC issued an investigation report on November 9, 2018, addressing Mr. Blank’s November 10, 2010 complaint. That report was not before the Court for this motion nor was the complaint.

Mr. Blank filed a notice of application for judicial review under section 41 of the ATIA, seeking review of the Department of Justice’s decision in respect of a refusal to give access to records or part of records. Although Mr. Blank’s complaint to the OIC only concerned the first response, he sought review of all four responses.

Decision

The Court dismissed Mr. Blank’s appeal motion. The Court ordered costs to the Department of Justice.

Reasons

Federal Court of Appeal

Citation: 2021 FCA 191

Link: Canada (Health) v. Elanco Canada Limited

Date of Decision: September 24, 2021

Provisions of the Access to Information Act: Sections 25, 44 and 44.1 and paragraph 20(1)(d)

• Paragraph 20(1)(d) – Third party information, disclosure to interfere with contractual or other negotiations
• Section 25 – Severability
• Section 44 – Disclosure of third party information, application for review
• Section 44.1 – De novo review

Operational Takeaways

• Standard of review for the Federal Court of Appeal - in appeal of a Federal Court decision:
  • For questions of law: Correctness
  • For questions of fact or mixed law and facts: Palpable and overriding error
• Requirement for exemption under paragraph 20(1)(d) of the Access to Information Act (ATIA) - Third party information, disclosure to interfere with contractual or other negotiations
  • To successfully apply this paragraph of the ATIA, proof of reasonable expectation that actual contractual negotiations would be obstructed by the disclosure of information is required.

Summary

Since an application pursuant to section 44 of the ATIA is a new proceeding, it is the same as any trial or hearing commenced in the Federal Court where the judge hears the evidence and makes findings of fact. Appeals from such decisions are subject to the appellate standards of review as set out in Housen v. Nikolaisen, 2002 SCC 33 (Housen).

Issues

• What are the appropriate appellate standards of review?
• Did the Federal Court Judge make any palpable and overriding errors of mixed fact and law, especially as it relates to the application of paragraph 20(1)(d) of the ATIA?
• Did the Federal Court Judge err in failing to order severance and disclosure of non-exempt portions of the requested records?

Facts

Elanco Canada Limited (Elanco) is a pharmaceutical company that developed Fortekor Flavour Tabs, a drug to treat chronic conditions in cats and dogs. The distinguishing features of the veterinary medication were achieved through extensive investment in research and development. In 2017, a third party requested access to Elanco’s submissions to Health Canada (HC) for approval of Fortekor Flavour Tabs.

HC proposed to release 166 pages of information, stating that much of the information Elanco was trying to protect was already in the public domain. Elanco objected to the disclosure of 12 categories of information and applied for judicial review.

At the Federal Court, the Judge granted Elanco’s application for Judicial Review and decided that none of the Records could be disclosed. The Federal Court’s judgement was appealed by Canada (Minister of Health).

Decision

The Federal Court had allowed the judicial review brought by Elanco and had declared Health Canada’s decision to disclose the Records invalid.

The Federal Court of Appeal allowed the appeal and set aside the Judgment rendered by the Federal Court. It remitted the matter back to the Federal Court Judge.

Reasons

Federal Court of Canada

Citation: 2021 FC 234

Link: Constantinescu v. Canada (Correctional Service)

Date of decision: March 18, 2021

Provision of the Privacy Act: Section 41

• Section 41 – Review by Federal Court where access refused

Operational Takeaways

• An application for review can be rendered moot where a government institution has redacted parts of a record and the redacted portions have been disclosed to the requester prior to the hearing.
• When a requester knows that a government institution is claiming exemptions and disagrees with how they were applied, a new complaint must be filed with the Office of the Privacy Commissioner (OPC). The Court cannot, on its own, be asked to rule on the validity of exemption claims if there was not a complaint to the OPC first.

Summary

This is an application for judicial review under section 41 of the Privacy Act where Mrs. Constantinescu is asking the Court to order Correctional Service Canada (CSC) to disclose information covered by her access to information request from August 14, 2017, and to order the payment of damages and interest.

Mrs. Constantinescu has complained to the OPC about the government institution’s lateness in responding to the request. She receives full disclosure before the hearing and then attempts, at the hearing, to make arguments about the application of exemptions without amending the grounds of the application. The application for judicial review is then moot and premature.

Issues

• Is this application for review moot?
• Is this application for review premature?

Facts

Mrs. Constantinescu sought access to records held by CSC related to the proposed mediation of a complaint she had filed with the Canadian Human Rights Commission (CHRC) in relation to allegations of abuse against an employee of CSC.

When the CSC Access to Information and Privacy Policy Division (ATIP Division) failed to provide a response during the statutory deadline, Mrs. Constantinescu complained to the OPC. The CSC ATIP Division then made a partial disclosure but indicated that some records required consultation. Subsequently, the OPC held that CSC had not met its legislative timeframes and had not responded to the access request. Accordingly, the OPC concluded that the applicant’s complaint was well founded. The OPC limited itself to the issue of the lateness of the disclosure of the records in response to the access request.

The CSC ATIP Division provided two further records to Mrs. Constantinescu, with certain redacted portions due to the application of an exemption. The CSC ATIP division considered these disclosures to constitute a complete response to Mrs. Constantinescu. Mrs. Constantinescu did not file a complaint with the OPC with respect to the exemptions applied to the disclosed records.

Mrs. Constantinescu filed an application for review under section 41 of the Privacy Act focused solely on CSC’s lateness in responding to her request for access. Mrs. Constantinescu never sought to amend the grounds of her application. Nevertheless, Mrs. Constantinescu did amend her affidavit and memorandum of fact and law to include arguments about the application of exemptions to the records.

Decision

The application was dismissed with costs to the CSC in the amount of $500.

Reasons

Federal Court of Canada

Citation: 2021 FC 1022

Link: Canjura v. Canada (Attorney General)

Date of decision: October 1, 2021

Provision of the Privacy Act: Section 41

• Section 41 – Review by Federal Court where access refused

Operational Takeaways

• Disagreement with a Prothonotary’s conclusions is not a basis for intervention on appeal.
• Disagreement with the costs award does not provide a basis to intervene on appeal as the Court has “full discretionary power over the amount and allocation of costs” and that costs are “quintessentially discretionary”.

Summary

Mr. Canjura sought to appeal a Prothonotary’s order dismissing his application pursuant section 41 of the Privacy Act on the basis that the application was premature.

The Prothonotary concluded the application was premature because Mr. Canjura had failed to first exhaust the administrative process and failed to demonstrate either unusual or exceptional circumstances.

The Court concluded that Mr. Canjura had not identified a reviewable error in respect of the Order and dismissed Mr. Canjura’s appeal. The Court indicated that the arguments raised by Mr. Canjura amounted to a disagreement with the Prothonotary’s conclusions, which was insufficient to ground the appeal.

Issues

• The Prothonotary erred in finding that administrative recourses had not been exhausted;
• The Prothonotary misunderstood and/or ignored the facts and evidence; and
• Costs should not have been awarded against Mr. Canjura.

Facts

In January 2021, Mr. Canjura requested that the Royal Canadian Mounted Police (RCMP) provide him with access to specific information pursuant to section 12 of the Privacy Act. The RCMP acknowledged receipt of the request and advised that an extension of time was required to respond. Communications between the RCMP and Mr. Canjura continued during February and March 2021, but the RCMP did not provide a response to Mr. Canjura’s request.

Mr. Canjura made a complaint to the Office of the Privacy Commissioner of Canada (OPC) alleging that the RCMP had contravened section 14 of the Privacy Act in delaying a response to his request. Mr. Canjura subsequently commenced his application under section 41 of the Privacy Act, seeking an order that itemized categories of information be disclosed to him. At that point, the OPC had not completed nor reported on its investigation into the complaint.

An order was made by Prothonotary Ring dated August 30, 2021 striking Mr. Canjura’s notice of application and dismissing the application for judicial review on the basis that it was premature. The Prothonotary found that the undisputed evidence established that the OPC had not yet issued a report on the findings of its investigation into the complaint and that the section 41 pre-condition for commencing the application had not been satisfied. The Prothonotary concluded the application was premature because Mr. Canjura had not exhausted the administrative process and failed to demonstrate either unusual or exceptional circumstances as recognized in the jurisprudence.

Decision

The Court dismissed Mr. Canjura’s motion to appeal the Order and awarded costs to the Attorney General of Canada in the fixed amount of $500 inclusive of all disbursements and taxes.

Reasons

On a preliminary question relating to the admissibility of evidence, the Court confirmed that as a general rule, appeals from Prothonotary orders are to be decided on the material that was before the Prothonotary. New evidence may be exceptionally admitted where (1) it could not have been made available earlier; (2) its admission will serve the interests of justice; (3) the evidence will assist the Court; and (4) its admission will not severely prejudice the other side. The Court decided it would give no weight to certain affidavit evidence advanced by Mr. Canjura on the basis that the evidence falls well short of satisfying the circumstances above for the exceptional admission of new evidence.

The Court then confirmed that a Prothonotary’s order is to be reviewed against a standard of palpable and overriding error where the issues raised involve questions of fact or mixed fact and law and correctness is the standard to be applied to extricable questions of law. The Court further noted that the palpable and overriding error standard is highly deferential.

The Court disagreed with arguments raised by Mr. Canjura that the Prothonotary erred in failing to recognize that the delay and non-responsiveness of the OPC in processing his complaint, coupled with the RCMP’s violation of the time limits imposed by the Privacy Act, demonstrate that the adequate remedial recourses provided for in the administrative process have been exhausted.

The Court stated that the Prothonotary correctly identified the applicable jurisprudence and, in applying the jurisprudence, the Prothonotary concluded that statutorily mandated processes had not been exhausted and exceptional circumstances had not been demonstrated. The Court further stated that these conclusions are not inconsistent with the evidence, nor do they reflect that the Prothonotary ignored or misunderstood the evidence relevant to the issue before her (i.e., that the application was premature).

The Court also disagreed with submissions by Mr. Canjura that delays involved in the administrative process raised issues of fairness that the Prothonotary failed to address. The Court stated that the Prothonotary was well aware of the sequence of events relating to Mr. Canjura’s request for information and the argument that procedural flaws should not obstruct access to the Court. The Court further held that these arguments were addressed in the context of whether exceptional circumstances had been demonstrated and that the Prothonotary’s finding that exceptional circumstances had not been demonstrated did not disclose any palpable or overriding error of fact, mixed fact and law or any error in law.

The Court noted that Mr. Canjura’s arguments amounted to disagreement with the Prothonotary’s conclusions, which is not a basis for intervention on appeal.

The Court similarly found no merit to the argument that the Prothonotary erred in awarding costs to the Attorney General of Canada noting that Rule 400(1) of the Federal Courts Rules, provides that the Court has “full discretionary power over the amount and allocation of costs” and cited case law holding that costs are “quintessentially discretionary”. On this issue, the Court stated that again Mr. Canjura’s disagreement with the costs award did not provide a basis to intervene on appeal.

Federal Court of Canada

Citation: 2021 FC 965

Link: Jemmo v. Canada (Citizenship and Immigration), 2021 FC 965

Date of decision: September 17, 2021

Provisions of the Privacy Act: Subsection 8(1) and paragraphs 8(2)(a), (b) and (c)

• Subsection 8(1) – Disclosure of personal information
• Paragraph 8(2)(a) – Disclosure of personal information for a consistent purpose
• Paragraph 8(2)(b) – Disclosure of personal information in accordance with any Act of Parliament
• Paragraph 8(2)(c) – Disclosure of personal information to comply with a subpoena or warrant issued or an order of the Court.

Operational Takeaways

• Where a Certified Tribunal Record (CTR) record must be prepared in accordance with the Federal Courts Rules that require all relevant documents in possession or control of the Tribunal to be disclosed in the CTR, a department cannot rely on the Privacy Act and unilaterally redact their documents.
• Departments should then file for an Order approving the unilateral redactions contained in the CTR filed.

Summary

Immigration, Refugees and Citizenship Canada (IRCC) had unilaterally redacted portions of the CTR on the basis that personal information was not relevant to the matter and in relying on section 8(1) of the Privacy Act.

Mr. Jemmo argued that the redactions should not have been unilaterally made by IRCC.

Tribunals, such as IRCC, are not allowed to unilaterally redact their CTR.

Issue

• Whether the Court should consider whether or not to proceed with judicial review on a CTR that was unilaterally redacted.

Facts

This Order was made within the context of an application for judicial review of a decision of a Visa Officer at the Canadian Embassy at Abu Dhabi, United Arab Emirates. The Visa Officer refused Mr. Jemmo’s refugee application primarily based on concerns the application was similar to another visa application received by IRCC.

During the course of argument, a discussion took place concerning the fact the tribunal filed a redacted copy of the CTR. There was no Order allowing a redacted filing, nor did IRCC seek the Court’s permission, under seal or otherwise, to file a redacted copy of the CTR.

Decision

There is no authority to allow IRCC, acting unilaterally, to partially or wholly redact any information in the CTR. The Court invited IRCC to move for an Order approving the unilateral redactions contained in the CTR IRCC filed.

Reasons

IRCC submitted the redactions were made pursuant to section 8(1) of Privacy Act. IRCC further submitted that while subsection 8(2) then grants discretion to disclose it in certain cases, including where it is required to comply with any Act pursuant to paragraph 8(2)(b) or regulation or the rules of court pursuant to paragraph 8(2)(c), the minimum disclosure principle requires that a disclosing institution ensures that no more personal information than needed is disclosed ([Privacy Act (Can.) (Re), 2000 CanLII 17110 (FCA), [2000] 3 F.C. 82, [2000] F.C.J. No. 179 at para 21 (CA.); Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000.]

IRCC argued that the Immigration Officer exercised their discretion under section 8 of the Privacy Act to redact third party personal information from disclosure. The personal information was either irrelevant to the underlying issues in the judicial review application or was information Mr. Jemmo had in his own records. The redactions were properly made and did not result in an incomplete record of the matter before the Court. The material redacted are not material to the issue before the Court and the Court could make a finding as to the reasonableness of the officer’s decision and whether the appropriate level of procedural fairness was accorded to Mr. Jemmo.

Mr. Jemmo submitted that in addition to seeking consent of the person to which the personal information related, there were at least three sections of the Privacy Act that may have provided an exemption in this case: paragraphs 8(2)(a), (b) & (c). The most directly applicable was paragraph 8(2)(c).

Mr. Jemmo submitted that it is inappropriate for IRCC’s own agents to exercise discretion unilaterally under the Privacy Act, effectively deciding for itself what may or may not be relevant, without the Court or Mr. Jemmo being provided with notice or input on the exercise of that discretion. This creates a dangerous precedent that a party with an interest in the outcome can unilaterally limit the evidentiary basis of a judicial review without judicial oversight.

Mr. Jemmo further argued that despite the importance of the protection of personal information, where a court order is in place directing IRCC on how to compile a CTR, such discretion is improper and unlawfully exercised. There was no evidence that relevance was applied in the redactions since the statement on the cover of the CTR said that redactions were made in accordance with subsection 8(1) of the Privacy Act. Relevance is not a criterion under that section. IRCC speculated that those redactions were made based on relevance. The Court granted leave and ordered that a CTR be prepared by IRCC. The CTR record must be prepared in accordance with the Federal Courts Rules that require all relevant documents in possession or control of the Tribunal to be disclosed in the CTR.

The Court was persuaded by Mr. Jemmo’s submissions. In particular, the Court relied on subsection 8(2) of the Privacy Act, and especially in the context of the Court’s jurisprudence, required the Court to be provided with an unreacted copy of the CTR. The Court invited IRCC to move for an Order approving the unilateral redactions contained in the CTR the Tribunal filed.

Federal Court of Appeal

Citation: 2021 FCA 33

Link: Canada (Public Safety and Emergency Preparedness) v. Gregory, 2021 FCA 33

Date of decision: February 23, 2021

Provisions of the Privacy Act: Section 41 and subparagraph 22(1)(a)(i)

• Section 41 – Review by Federal Court where access refused
• Subparagraph 22(1)(a)(i) – Law enforcement and investigation

Operational Takeaways

• There must be a report from the Privacy Commissioner on the validity of the exemptions claimed by a federal department before the Federal Court can order the disclosure of a record.
• Where there is no report to ground the Federal Court’s jurisdiction to examine the merits of the refusal, the application for judicial review is premature, and the notice of application must be dismissed.

Summary

There must be a report from the Privacy Commissioner on the validity of the RCMP’s exemption claim before the Federal Court may order the disclosure of the video in question. On the facts of this case, there was no report to ground the Federal Court’s jurisdiction to examine the merits of the refusal.

Issue

• Is the request for disclosure of the video premature since the Privacy Commissioner has not addressed, and has not been asked to address, the RCMP’s claim for exemption under paragraph 22(1)(a)(i) of the Privacy Act?

Facts

This was an appeal by the Minister of Public Safety and Emergency Preparedness (Public Safety) from a decision of the Federal Court (2020 FC 667). The Federal Court converted Mr. Gregory’s Application (the Application) pursuant to section 18.1 of the Federal Courts Act into an application for judicial review under section 41 of the Privacy Act, and dismissed Public Safety’s motion to strike Mr. Gregory’s notice of application.

Mr. Gregory’s Application concerned the failure of Royal Canadian Mounted Police (RCMP) to provide him with a video that he requested. Following a complaint to the Privacy Commissioner about the lack of a timely response, the Privacy Commissioner commenced an investigation, which resulted in a report finding the complaint well-founded. Mr. Gregory commenced his Application after receiving this report. Among other things, the Application sought disclosure of a 2006 video.

Shortly after the commencement of the Application, the RCMP provided a response to the Mr. Gregory’s initial request for the video. The response refused disclosure stating, in part:

[…] Please be advised that a review of the records located reveals that all of the information you have requested qualifies for an exemption pursuant to subparagraph 22(1)(a)(i) of the [Privacy] Act […]

Public Safety brought its motion to strike shortly after the RCMP provided its response.

Decision

On the facts of this case, there was no report to ground the Federal Court’s jurisdiction to examine the merits of the refusal. Therefore, the Court agreed with Public Safety that the Application was indeed premature, and the notice of application must have been dismissed.

The Court allowed the appeal, quashed the judgment of the Federal Court, and granted the Public Safety’s motion to strike the notice of application, without costs.

Reasons

Public Safety argued that the request for disclosure of the video was premature because the Privacy Commissioner had not addressed, and had not been asked to address, the RCMP’s claim for an exemption under subparagraph 22(1)(a)(i) of the Privacy Act. Public Safety argued that the Application was therefore bereft of any chance of success.

Mr. Gregory did not participate in the present appeal, but indicated that he agreed with the Federal Court’s decision.

The Court stated that the Federal Court attempted to address a number of Federal Court of Appeal and Federal Court cases indicating that a report from the Privacy Commissioner addressing the specific exemption claimed is required.

The Court disagreed with the Federal Court, both on the distinctions it drew and its disagreement with the prior Federal Court decisions. However, given that Mr. Gregory had been waiting for some time for a conclusion, the Court determined it was not appropriate to make a long dissertation as to how and why this is so, nor to recite factual errors in the decision of the Federal Court.

In their view, the Court stated that the Federal Court made a palpable and overriding error in determining that it had jurisdiction based on its conclusion that the Privacy Commissioner’s report dealt with more than the deemed refusal due to the passage of time.

Accordingly, the Court stated that there must be a report from the Privacy Commissioner on the validity of the RCMP’s exemption claim before the Federal Court could order the disclosure of the video in question. On the facts of this case, the Court determined there was no report to ground the Federal Court’s jurisdiction to examine the merits of the refusal. Therefore, the Court agreed with Public Safety that the Application was indeed premature, and the notice of application must be dismissed.