Language selection

Government of Canada / Gouvernement du Canada

Search

Info Source Bulletin 46A - Federal Court Decision Summaries

From: Treasury Board of Canada Secretariat

On this page

In the case summaries, the term “judicial review” is used. This refers to the courts’ review of administrative decisions made by government officials, including positions taken by the Information and Privacy Commissioners of Canada.

Access to Information Act

In this section

Federal Court of Canada

1. John Howard Society of Canada v. Canada (Public Safety)

Federal Court of Canada

Citation: 2022 FC 1459

Link: John Howard Society of Canada v. Canada (Public Safety)

Date of Decision: October 25, 2022

Provisions of the Access to Information Act: Section 3, subsections 19(1) and (2), section 25, subsection 41(1), section 44.1, subsection 48(1) and section 49

Provision(s) of the Privacy Act: Section 3

Operational takeaways
Summary

Any consideration of whether handwriting is personal information is inherently contextual and fact-specific. Therefore, the fact that records are handwritten is not on its own determinative of whether they are personal information under section 3 of the Privacy Act.

While a de novo review is applicable to decisions made under subsection 19(1) of the ATIA, the standard of review applicable for decisions made under subsection 19(2) of the ATIA is reasonableness, despite section 44.1 of the ATIA, because it would be illogical to apply a de novo review to an exercise of discretion.

Issues
Facts

The John Howard Society requested that CSC provide anonymized copies of all inmate grievances regarding correctional officers not wearing masks at the Bath Institution between April 1, 2020, and October 15, 2020. CSC responded to the request with a 65-page disclosure package. While two typewritten grievances were disclosed, CSC refused to disclose eight handwritten grievances and any other handwritten records because CSC determined the handwritten portions to be personal information pursuant to subsection 19(1) of the ATIA.

The John Howard Society subsequently complained to the Information Commissioner arguing that the personal information exemption in subsection 19(1) of the ATIA was excessively applied. On November 23, 2021, the Information Commissioner determined that the complaint was not well founded and that the handwritten grievances fell under the definition of personal information pursuant to section 3 of the Privacy Act. The Information Commissioner determined that the handwritten grievances were both identifying information and information implicitly or explicitly of a private or confidential nature. The John Howard Society then sought judicial review pursuant to subsection 41(1) of the ATIA.

Decision

The Federal Court granted the application for judicial review and sent the matter back to be re-determined by a different decision-maker. The Federal Court also ordered CSC to pay $3,500 in costs.

Reasons
Standard of Review

The Court held that the applicable standard of review for decisions made under subsection 19(1) of the ATIA is a de novo review. However, the Court also found that despite section 44.1 of the ATIA, the standard of review applicable for decisions made under subsection 19(2) of the ATIA is reasonableness because “it is also illogical to apply a de novo review to an exercise of discretion.” Furthermore, the Court noted that the burden of proof is on CSC to justify its refusal to disclose records.

Personal information – subsection 19(1) of the ATIA

The Supreme Court of Canada’s jurisprudence has confirmed that a broad interpretative approach applies to the definition of personal information and that the ATIA, and the Privacy Act must operate as a seamless code. The Court relied on Gordon v. Canada (Health), 2008 FC 258 (Gordon), for the test used to determine whether information is about an identifiable individual. In Gordon, the Federal Court held that “information will be about an identifiable individual where 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” (emphasis added). The Court explained that this is a fact-specific analysis that will depend on the context of each case.

For a “serious possibility” of identification to exist, there must be more than a speculation or a mere possibility, but CSC does not need to prove that identification is more likely than not in the circumstances. The Court also observed that there were no reported decisions of a court considering whether handwriting was personal information. While several provincial privacy commissioners have concluded that handwriting may be personal information, those decisions were in context of a single individual. In this case, the facts are significantly broader and involve many people and documents, which makes the likelihood of identification more unlikely.

The Court ultimately found that identifying inmates from handwritten grievances was predominately speculative. The Court found that the risk of identification did not threaten the inmates’ safety and that the likelihood of identification was too remote. In order for someone to identify an inmate from a handwritten grievance, that person would need access to the grievance, to another sample of the inmate’s handwriting, and be skilled in forensic handwriting analysis. Furthermore, there is also no guarantee that an inmate wrote their own grievance as prisons have disproportionately high illiteracy rates.

The Court then considered whether there was “other available information” that could assist with identification in accordance with the second step of the Gordon test. The Court noted that this stage of the analysis requires a consideration of “the type of information at issue, the context in which it appears in the records at issue, and the nature of the other information that is available.” The Court further elaborated on what did and did not constitute available information. The Court noted that government information that is kept confidential is not available information, that available information consists of something more than simply publicly available information, and that someone’s ability to identify themself from information does not make it personal information. The Court ultimately concluded that there was no evidence of more than a mere possibility of identification. Therefore, the Court found that CSC had failed to prove that the inmates’ handwriting styles were personal information under section 3 of the Privacy Act.

Reasonable exercise of discretion – subsection 19(2) of the ATIA

The Court determined that it was unnecessary to consider whether CSC reasonably exercised its discretion under subsection 19(2) of the ATIA because the Court found that the handwritten grievances were not personal information. Despite this, the Court nevertheless noted that it would have also found the exercise of discretion unreasonable because it is unclear from the record how CSC applied the subsection 19(2) test.

The Court did not consider the issue of severance under section 25 of the ATIA.

2. Kimery v. Canada (Justice)

Federal Court of Canada

Citation: 2022 FC 829

Link: Kimery v. Canada (Justice)

Date of Decision: June 6, 2022

Provisions of the Access to Information Act: Paragraph 30(1)(a), sections 41 (pre-2019 amendments), subsection 41(1) (post-2019 amendments) and section 44.1

Operational takeaways
Summary

A response by an institution that there are no records in existence is a refusal of access and permits the requester to seek judicial review under section 41 of the ATIA.

The application for judicial review was dismissed. The primary oversight role under the ATIA remains with the Information Commissioner. It is not for the Court to order and supervise the gathering of records in the possession of the head of government institutions or to review the manner in which government institutions respond to access requests, except perhaps for egregious circumstances such as bad faith or tampering of records by an institution.

Issues
Facts

On August 6, 2016, Mr. Kimery submitted an access request under the ATIA to the Department of Justice Canada seeking accounting records related to a Crown prosecutor’s time and expenses in relation to a Canada Revenue Agency (CRA) investigation and prosecution of Gunner Industries Ltd. Mr. Kimery considered that this information, to the extent it revealed the timing of investigative activities, was relevant to advancing a Charter defence in the prosecution of Gunner Industries Ltd.

On September 22, 2016, the Department of Justice Canada responded that no records existed in response to his request. The letter from the Department of Justice Canada added that the Public Prosecution Service of Canada may have a greater interest in the request.

On September 26, 2016, Mr. Kimery submitted a complaint to the Information Commissioner alleging that, despite its claim that no records existed in response to his request, the Department of Justice Canada did have responsive records under its control. On February 21, 2020, the Information Commissioner concluded that the complaint was not well founded and informed him of his right to apply to the Federal Court for review under section 41 of the ATIA. On March 5, 2020, Mr. Kimery filed its Notice of Application for judicial review in the Federal Court.

Decision

The application for judicial review under section 41 of the ATIA was dismissed. Absent potential egregious circumstances such as records-tampering or other evidence of bad faith by the institution when responding to an access request, the Court’s role under the ATIA does not extend to ordering the institution to conduct a better or more thorough search.

Reasons
Does the Court have jurisdiction to hear the application?

The Court held that it has jurisdiction to hear the application under section 41 of the ATIA. The Court held that an institution’s response that a record does not exist constitutes a refusal of access under paragraph 30(1)(a) of the ATIA, enabling a requester to apply to the Federal Court for review under section 41 of the ATIA.

If the Court has jurisdiction, are there grounds to grant the relief sought by Mr. Kimery in the circumstances of the case?

The Court held that other than potentially egregious circumstances such as a demonstration of records-tampering or other bad faith on the part of a government institution, the Court cannot order an institution to conduct a better or more thorough search. Referring to the Federal Court of Appeal’s decision in Blank v. Canada, 2016 FC 189 at para. 36, the Court observed that the primary oversight role under the ATIA remains with the Information Commissioner and that the Court’s reviewing authority is confined to the power to order access to a specific record when access has been denied contrary to the ATIA. Based on the evidence before the Court, including of the Department of Justice Canada’s efforts to search for responsive records and the lack of evidence of egregious behaviour or other bad faith on behalf of the government institution, there is no basis in fact and law for the Court to order the Department of Justice Canada to conduct a further and better search.

3. Lambert v. Canada (Canadian Heritage)

Federal Court of Canada

Citation: 2022 FC 553

Link: Lambert v. Canada (Canadian Heritage)

Date of Decision: April 19, 2022

Provisions of the Access to Information Act: Section 6, subsection 10(1), paragraphs 30(1)(a) to (e), sections 41 and 44.1 and paragraph 68(a)

Operational takeaways
Summary

The application for judicial review was dismissed. The Court had jurisdiction to hear the application but there were no grounds for the Court to make the orders sought by Mr. Lambert.

Issues
Facts

Mr. Lambert filed a request for access to information under the ATIA with the Office of the Minister of Canadian Heritage (Canadian Heritage). The context for the request was the “Zibi” project for the development of Chaudière Island and Albert Island. His request sought access to copies of Acts of Parliament or statutes regarding the legal status of the islands and/or authority to develop them.

In response, Canadian Heritage advised Mr. Lambert to contact the National Capital Commission and Public Services and Procurement Canada on the basis that they may hold documents related to his request, and provided the link for an order in council, and two documents that were released in a previous request.

Mr. Lambert, dissatisfied with the response, filed a complaint with the Office of the Information Commissioner (OIC). The OIC found that the complaint was not well founded. Mr. Lambert then sought review of the matter under section 41 of the ATIA.

Decision

The Court has jurisdiction to hear the application which concerns a refusal to disclose documents under the control of the government institution. At the same time, there is no basis for the Court to make the orders that Mr. Lamber requests.

Reasons
Jurisdiction

In the present case, paragraph 30(1)(a) of the ATIA – concerning refusals – is the applicable paragraph, as (b) to (e) – unreasonable fees or extensions, official languages, accessibility, or a publication or bulletin issued under section 5 of the ATIA – do not apply.

In accordance with subsection 10(1) of the ATIA, the response by a government institution to the effect that a record does not exist amounts to a refusal to provide access to the record. Canadian Heritage’s response implicitly advised that it did not have records in its control that were responsive to Mr. Lambert’s requests.

Mr. Lambert’s complaint to the OIC challenging the “Incomplete search/no records response,” was a complaint under paragraph 30(1)(a) of the ATIA. Mr. Lambert received a report under subsection 37(2) of the ATIA in respect of his complaint. He was therefore a person described in subsection 41(1) of the ATIA, and the Court had jurisdiction to hear this application.

Refusal to disclose records

There is no basis for the Court to make the orders sought by Mr. Lambert. Canadian Heritage established it was authorized to refuse to disclose records to him.

The ATIA creates a right of access to records but does not create a right to require the government to provide a requester with a legal opinion or to provide a legal justification or position for the actions of government.

Section 6 of the ATIA requires a request for access to “provide sufficient detail to enable an experienced employee of the institution to identify the record with a reasonable effort.” If a legal analysis is required to identify the legal effect of legislation, this is beyond the scope of what is contemplated in section 6 of the ATIA.

In addition, as the evidence shows that the requested records did not exist in the control of Canadian Heritage, there is no basis for the Court to order production of the records.

Furthermore, the records requested are Acts of Parliament or statutes, and any such records are published materials or materials that are available for purchase by the public, and are, as such, exempt from disclosure under paragraph 68(a) of the ATIA.

Privacy Act

In this section

Federal Court of Canada

1. Barre v. Canada (Citizenship and Immigration)

Federal Court of Canada

Citation: 2022 FC 1078

Link: Barre v. Canada (Citizenship and Immigration)

Date of Decision: July 20, 2022

Provisions of the Privacy Act: Subsection 12(1), subparagraph 22(1)(a)(ii), paragraph 22(1)(b), subsection 22(2), sections 41 and 47

Other provision(s):
Canada Evidence Act, section 37
Immigration and Refugee Protection Act, section 109

Operational takeaways
Summary

Law enforcement and investigation exemptions under section 22 of the Privacy Act do not apply to Refugee Protection Division (RPD) proceedings because there is no personal information request under subsection 12(1) of the Privacy Act or corresponding decision by the head of a government institution. The Privacy Act does not apply to limit access under other legal rules or principles.

The RPD should nevertheless protect personal information in its proceedings by way of the common law or section 37 of the CEA. The RPD can limit the disclosure of information that may potentially be subject to the Privacy Act by inspecting the documents for relevancy in order to balance the need for disclosure with privacy rights.

Issues
Facts

The RPD found Ms. Barre and Ms. Hosh to be Convention Refugees in May 2017 and July 2018, respectively. Their refugee claims were based on a fear of sectarian and gender-based violence in Somalia. Both Ms. Barre and Ms. Hosh established their identity through witnesses, third-party community organizations, and their own testimony. Neither was able to provide Somalian citizenship documentation.

In October 2020, the Minister of Public Safety and Emergency Preparedness (Minister) applied under section 109 of the Immigration and Refugee Protection Act to vacate their refugee status on the basis that they had misrepresented and withheld material facts. Specifically, the Minister alleged that Ms. Barre and Ms. Hosh were Kenyan citizens given their facial similarities with photos of two Kenyan students who arrived in Canada shortly before Ms. Barre and Ms. Hosh’s refugee claims.

Ms. Barre and Ms. Hosh alleged that the Canada Border Services Agency (CBSA) used Clearview AI to compare the photos and that Clearview was unreliable given its high misclassification rate among women of colour. The Minister refused to disclose how the photo comparison was conducted and argued that subsection 22(2) of the Privacy Act “allows law enforcement agencies to protect the details of this investigation.” The RPD nevertheless vacated Ms. Barre and Ms. Hosh’s refugee status based in part on the photo comparison. They subsequently filed an application for judicial review of this decision with the Federal Court.

Decision

The Federal Court granted the application for judicial review and remitted the matter back to a differently constituted panel of the RPD for redetermination.

Reasons
Did the RPD err by admitting the Minister’s photo comparisons as evidence?

The Court held that the RPD’s decision – that subsection 22(2) of the Privacy Act permitted the Minister not to disclose how the facial comparison was conducted – was unreasonable for three reasons. First, the RPD failed to clarify what personal information the Minister was trying to protect. Second, the RPD accepted, without any evidence or analysis, that section 22 of the Privacy Act applied. The Court found that subsection 22(2) of the Privacy Act does not apply because: (i) while the head of a government institution or their delegate is the decision-maker under the Privacy Act, it is unclear in this case who decided not to disclose the method of facial comparison; (ii) there was no request for personal information under subsection 12(1) of the Privacy Act as required by subsection 22(2) of the Act; and (iii) there is no record of Royal Canadian Mounted Police (RCMP) involvement even though subsection 22(2) of the Privacy Act applies to information obtained by the RCMP while performing provincial or municipal policing services. Even if the RPD intended to refer to subsection 22(1) and not 22(2) of the Privacy Act, issues (i) and (ii) remain. Third, the Court held that the RPD’s decision was unreasonable because it concluded that CBSA did not use Clearview solely because the company stopped operating in Canada on July 6, 2020. The RPD made no inquiry into whether the comparisons were completed prior to this date.

The Court also reiterated that when applying the exemption in paragraph 22(1)(b) of the Privacy Act, the Court “will not infer injurious harm on a theoretical basis from the mere presence of an investigation without evidence of a nexus between the requested disclosure and a reasonable expectation of probable harm.” The Minister failed to provide any evidence of such harm.

When questioned by the Court on the applicability of the Privacy Act to this case, the Minister conceded that the RPD should not have relied on subsection 22(2) of the Privacy Act. However, the Minister argued that the RPD was applying “the principle under subsection 22(1), supported by the common law [and section 37 of the CEA], which also recognizes a public interest privilege in the methods of investigation.” This argument was rejected by the Court, as the RPD did not refer to either the common law or the CEA in its decision.

Furthermore, the Court held that under the common law and the CEA “parties seeking an exemption from disclosure of evidence are often required to disclose that information to the Court.” The Court went on to note that the Federal Court has previously seemed to suggest that the RPD should inspect documents – that may be subject to the Privacy Act – for relevancy in order to balance the need for disclosure with privacy rights (Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 100 at paras. 36 to 37). In this case, the RPD did not examine any of the information that was withheld.

Was the RPD’s findings that Ms. Barre and Ms. Hosh were Kenyan students unreasonable?

The Court also found that the RPD’s conclusion that Ms. Barre and Ms. Hosh were Kenyan students was unreasonable. In coming to this conclusion, the RPD relied – in addition to the photos – on Global Case Management System (GCMS) notes. However, the Court noted that the RPD’s decision did not address the limitations of these notes. Specifically, the RPD failed to explain how it reached the conclusion that the students abandoned their studies, given that the GCMS notes from one student were outdated – the most recent entry being a 2016 email stating that she was deferring her studies by one semester. The other student had three completed compliance reviews showing academic attendance as recently as 2020. This contradictory evidence was ignored.

The Court also found that the RPD failed to provide adequate reasons to support its conclusion that Ms. Barre and Ms. Hosh and the students were the same persons. Specifically, the RPD failed to enumerate the similarities and reconcile the dissimilarities between the two sets of photos. The RPD also failed to explain which facial features were supposedly common to people of Somali and Kenyan heritage and which were salient features that are useful for comparative purposes.

2. Chin v. Canada (Attorney General)

Federal Court of Canada

Citation: 2022 FC 464

Link: Chin v. Canada (Attorney General)

Date of Decision: April 5, 2022

Provisions of the Privacy Act: Paragraph 12(1)(a), subsections 13(1), 16(1) and (2) and 18(2), section 21, paragraphs 22(1)(a) and (b), section 41

Operational takeaways
Summary

The application for judicial review is dismissed. CSIS reasonably refused Ms. Chin’s request for personal information, stating that it would neither confirm nor deny the existence of any records containing the information requested, pursuant to subsection 16(2) of the Privacy Act and that if the information did exist, it would be exempt from disclosure under section 21 and/or paragraphs 22(1)(a) and (b) of the Privacy Act.

Issues
Facts

Ms. Chin applied for judicial review of a decision by CSIS denying her request for personal information pursuant to paragraph 12(1)(a) and subsection 13(1) of the Privacy Act.

Ms. Chin believes, without evidence, that she has been victimized since 2007 by means of a transparent electronic device implanted on her person and used to track, harass, and assault her, causing her considerable mental and physical distress.

On March 18, 2021, Ms. Chin submitted a request for personal information to CSIS believing that CSIS was aware of her circumstances and that it had taken insufficient steps to protect her.

In response to Ms. Chin’s request, CSIS conducted a search of information bank CSIS PPU 045 (a designated exempt bank). Consistent with its long-standing practice, CSIS refused Ms. Chin’s request, stating that it would neither confirm nor deny the existence of any records that could potentially be responsive to her request, pursuant to subsection 16(2) of the Privacy Act. CSIS further informed Ms. Chin that if any information concerning her request was held in CSIS PPU 045, that it was exempt from disclosure under section 21 of the Privacy Act because it related to Canada’s efforts to detect, prevent, or suppress subversive or hostile activities, and/or because it related to law enforcement and investigations under paragraphs 22(1)(a) and/or (b) of the Privacy Act.

Ms. Chin filed a complaint with the Office of the Privacy Commissioner (OPC) which subsequently determined that the complaint was “not well-founded” because a government institution is not required to reveal whether personal information exists under subsection 16(2) of the Privacy Act, and because CSIS had correctly cited section 21 and paragraphs 22(1)(a) or (b) of the Privacy Act in responding to the request.

Decision

CSIS’s refusal of Ms. Chin’s request for access to personal information was reasonable and did not violate Ms. Chin’s Charter rights.

The application for judicial review is dismissed without costs.

Reasons

Judicial review of a government institution’s refusal to disclose information involves a two-step process: the first step requires the Court to consider if the requested information falls within the legislative provisions relied upon, and the second step requires the Court to consider the government’s exercise of its discretion not to disclose the requested information.

Prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov), the first step was understood to be reviewable against the standard of correctness, while the second step was reviewable against the standard of reasonableness.

However, in Vavilov the Supreme Court of Canada held that the standard of review must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness (Vavilov at para. 23).

There is nothing to rebut the presumption of reasonableness review for both steps of the analysis, and accordingly the Court will intervene only if “there is sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para. 100).

A decision not to release information that falls within a claimed exemption is heavily fact-based with a policy component, and the Court owes deference to a government institution’s exercise of discretion (Martinez v. Canada (Communications Security Establishment), 2018 FC 1179 at para. 13).

Was CSIS’s refusal of Ms. Chin’s request for access to personal information reasonable?

Pursuant to subsection 18(2) of the Privacy Act, the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) of the Privacy Act that is contained in an exempt bank. CSIS PPU 045 is an exempt bank that consists predominantly of sensitive national security information of the kind described in section 21 and paragraphs 22(1)(a) and (b) of the Privacy Act.

Subsection 16(2) of the Privacy Act permits a government institution not to confirm whether personal information exists within an exempt information bank. The Federal Court of Appeal has confirmed that CSIS may refuse access to records in accordance with a blanket policy of not disclosing the existence of requested records were “the mere revealing of the existence or non-existence of information is in itself an act of disclosure: a disclosure that the requesting individual is or is not the subject of an investigation” (Ruby v. Canada (Solicitor General), [2000] 3 FC 589 (FCA) at paras. 65 to 66).

Based on the evidentiary record, any actual or hypothetical records in question were reasonably found by CSIS to be exempt from disclosure. Records would not be exempt from disclosure if they revealed CSIS’s complicity in an illegal plot to harm Ms. Chin’s using a miniature or transparent electronic device (Russell at para. 31; Khadr v. Canada (Attorney General), 2008 FC 549 at paras. 86 to 90). There was no evidence of such complicity or of any involvement or acquiescence by CSIS in attempts to harm Ms. Chin’s physical or mental wellbeing.

In making this finding, the Court was giving effect to paragraph 22(1)(a) of the Privacy Act and was neither confirming nor denying the existence of records that may pertain to Ms. Chin. Under paragraph 22(1)(a) of the Privacy Act, the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) of the Privacy Act only if it was obtained or prepared “in the course of lawful investigations.” CSIS’s decision to apply the exemptions in this case was reasonable.

Did CSIS’s refusal of Ms. Chin’s request for access to personal information violate her rights under the Canadian Charter of Rights and Freedoms?

There must be evidence to support a Charter challenge (Fraser v. Canada (Attorney General), 2020 SCC 28). There was no evidence to support Ms. Chin’s assertion that the CSIS’s refusal to disclose information in response to her request or that CSIS’s acts or omissions, infringed her Charter rights and freedoms.

The Courts have repeatedly upheld CSIS’s blanket policy of refusing to disclose the existence of investigative records, and for good reason. However, CSIS must understand that in some situations, the unyielding application of this policy may have the unintended effect of exacerbating mental health challenges faced by Canadian citizens and permanent residents who are seeking access to their personal information (see, for example, Russell; Canada (Attorney General) v. Hutton, 2021 FC 750 (under appeal)).

3. Khoury v. Canada (Employment and Social Development)

Federal Court of Canada

Citation: 2022 FC 101

Link: Khoury v. Canada (Employment and Social Development)

Date of Decision: January 28, 2022

Provisions of the Privacy Act: Sections 12 and 13

Operational takeaways
Summary

This is an application for judicial review of decisions rendered in two access to personal information requests. Both applications must be dismissed because the Employment and Social Development Canada’s Access to Information and Privacy Office (ESDC ATIP Office) reasonably found that Mr. Khoury failed to provide “sufficiently specific information on the location of the information as to render it reasonably retrievable” and because the second application is moot. To the extent that Mr. Khoury is dissatisfied with the release package he received on January 26, 2021, his recourse lies with the OPC and not the Court.

Issues
Facts

Mr. Khoury worked at ESDC since 1997. Before he began a period of extended leave, he was a Senior Program Advisor for the Canada Pension Plan and Old Age Security Pension.

In November 2019, Mr. Khoury made two requests for access to personal information (Requests 1 and 2) pursuant to sections 12 and 13 of the Privacy Act. In Requests 1 and 2, Mr. Khoury sought a range of computer logs (names of individuals that may have logged into his GC Profile, Outlook, and Banyan email platform) and other information (photos of him circulated by ESDC employees, audio/video recordings of his work or personal conversations made inside or outside the workplace, and any personal items or documents held by others) spanning the 23 years of his employment. In December 2019, Mr. Khoury made a third request (Request 3) for access to personal information in which he sought his complete employee files and all human resources files held by ESDC and the Government of Canada since 1997.

In November 2019, an ESDC ATIP Officer contacted Mr. Khoury seeking particulars with regard to Requests 1 and 2 about the names, dates, or locations that interested him. Mr. Khoury confirmed that he started employment in 1997 and provided the name of his manager but refused to provide further clarification. The ATIP Officer also became aware that the Banyan email system was decommissioned in 2003 and accordingly that aspect of Mr. Khoury’s request could not be processed.

The ESDC ATIP Office subsequently refused Mr. Khoury’s Requests 1 and 2 pursuant to paragraph 12(1)(b) and subsection 13(2) of the Privacy Act because he had failed to provide “sufficiently specific information on the location of the information as to render it reasonably retrievable.”

Mr. Khoury submitted a complaint to the OPC with regard to the ESDC decision regarding Requests 1 and 2. On June 5, 2020, the OPC determined that his complaint with regard to Requests 1 and 2 was not well founded.

Mr. Khoury submitted a second complaint to the OPC respecting the ESDC’s failure to process Request 3. On November 17, 2020, the OPC concluded that the ESDC had not processed Mr. Khoury’s request within the statutory timeframe, and the request was deemed to have been refused. The OPC determined that Request 3 was well founded. On January 26, 2021, ESDC responded to Request 3 with a 766-page release package.

Mr. Khoury initiated two applications for judicial review. One application concerned ESDC’s refusal of his Requests 1 and 2. The other application concerned ESDC’s deemed refusal of Request 3.

Decision

The application for judicial review for Requests 1 and 2 was dismissed. ESDC’s ATIP Office reasonably found that Mr. Khoury failed to provide “sufficiently specific information on the location of the information to render it reasonably retrievable.”

The application for judicial review for Request 3 was dismissed because it is moot. Mr. Khoury’s dissatisfaction with the release package is a matter to be addressed by the OPC and not the Courts.

Reasons
Did ESDC reasonably refuse Mr. Khoury’s Requests 1 and 2 because he did not provide sufficient particulars for the information to be retrievable?

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada held that administrative decision are reviewed by the Courts against a standard of reasonableness.

In Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227, the Federal Court of Appeal held that the question of whether a requestor has provided sufficiently specific information so as to make the information reasonably retrievable is a heavily fact-based question warranting deference to the decision-maker.

In Oleynik v. Canada (Privacy Commissioner), 2016 FC 1167, it was reasoned that the burden was on the applicant to provide sufficient information about his requested information to make it “reasonably retrievable.”

The Court will only intervene with ESDC’s refusal if it is satisfied that there are sufficiently serious shortcomings in the justifications, intelligibility, and transparency of the decision.

The Court set out that paragraph 12(1)(b) and subsection 13(2) of the Privacy Act require an individual to “provide sufficiently specific information regarding the location of the information so as to render it reasonably retrievable by the government institution.”

The Court agreed with the OPC’s conclusion that the requests were abandoned in accordance with the Privacy Act because Mr. Khoury did not provide sufficient clarification within the deadline. ESDC responded to Mr. Khoury’s request properly and did not contravene his right to access under the Privacy Act.

It remains open for Mr. Khoury to pursue his requests for personal information by providing ESDC the necessary specifications with regard to what he is seeking.

Should Mr. Khoury’s application for judicial review respecting Request 3 be dismissed because it is moot or, in the alternative, premature?

In response to Request 3, ESDC responded with a 766-page disclosure package that was provided to Mr. Khoury.

Mr. Khoury never submitted a complaint regarding the adequacy of the information provided and in the absence of an investigation by the OPC, it is premature for the complainant to seek relief from the Court (see Cumming v. Canada (Royal Canadian Mounted Police), 2020 FC 271).

In Canada (Public Safety and Emergency Preparedness) v. Gregory, 2021 FCA 33, citing Blank v. Canada (Justice), 2016 FCA 189, it was confirmed that a complaint to and a report from the OPC are prerequisites for a Court ruling upon the adequacy of a response to a request for personal information under the Privacy Act.

In Whitty v. Canada (Attorney General), 2014 FCA 30, the Federal Court of Appeal emphasizes the common law doctrine that all adequate and alternative remedies must be pursued before resorting to an application for judicial review.

The application for judicial review was dismissed. To the extent that Mr. Khoury was dissatisfied with the disclosure package, his recourse lies with the OPC and not with the Courts.

Page details

Date modified: