Federal Court Decision Summaries 48A, 2024

Operational takeaways

• Jurisprudence establishes that the Privacy Act and the Access to Information Act (ATIA) must be read together, and when done, it affords a greater protection to personal information. Subsection 19(1) must be applied broadly, and paragraph 3(j) must be interpreted narrowly.
  • The exception in paragraph 3(j) covers information directly related to general characteristics of positions of officers or employees of government institutions including titles, duties, salary range, responsibilities or opinion and views given in the course of their employment. It does not extend to characteristics of the individuals themselves such as physical or personal features, even if captured in the workplace and in uniform.
  • Unlike attendance logs, images captured in the workplace reveal employee-specific characteristics and there is no sufficient link between all the personal characteristics that could be revealed by the images of the officers and the general characteristics of their positions or duties.

Summary

The Federal Appeal Court found that the lower court erred in its interpretation of subsection 19(1) of the ATIA. They determined that all Canada Border Services Agency (Agency) officers appearing on the videotapes are entitled to the same protection under the personal information exemptions. The Court also determined that the Agency correctly applied section 25 of the ATIA concerning severing exempted information from disclosure. The Court furthermore held that the ATIA and the Privacy Act must be interpreted harmoniously.

Issues

• Whether the Federal Court erred in its interpretation of subsection 19(1) of the ATIA and the definition of “personal information” under the Privacy Act, particularly the scope of the exception in paragraph 3(j).
• Whether the Agency fulfilled its duty under section 25 and properly severed exempted information and disclosed the remainder of the video information to the Appellant.

Facts

Régis Beniey, was involved in a workplace incident on July 3, 2017, at the Queenston Bridge border crossing. Following this, the Agency initiated an internal investigation, and Mr. Beniey filed a grievance.

On July 31, 2017, Mr. Beniey submitted an access to information request seeking reports and surveillance video recordings related to the incident. The Agency responded in February 2018 by providing some reports and seven video recordings, some of which were redacted or altered. and Mr. Beniey was dissatisfied and filed a complaint with the Information Commissioner, alleging incomplete disclosure and technical issues with the videos. The Commissioner dismissed the complaint but required the Agency to correct the video issues, which the Agency did by October 2018.

Following receipt of the Information Commissioner’s report, Mr. Beniey applied to the Federal Court for a review under subsection 41(1) of the ATIA. The Court decided that the videotapes containing images of government employees in uniform and on duty are not exempt under subsection 19(1) of the ATIA and must be disclosed to and Mr. Beniey. The Court did not address section 25 of the ATIA, as it deemed it unnecessary given the disclosure ruling. The Federal Court applied the correct standard of review and focused on the specific videotapes identified by the Appellant.

Decision

The main appeal was dismissed with costs.

The cross-appeal was allowed. The Federal Court’s judgment was set aside.

Reasons

Operational takeaways

For paragraph 20(1)(b) to apply, information must be supplied to a government institution by the third party. Consultations undertaken prior to a potential disclosure should consider the source of the information and whether there are any reasonable expectations of confidentiality, other than under paragraph 20(1)(b).

Summary

• Paragraph 20(1)(b) of the Access to Information Act (ATIA) did not apply to Audit Reports of the Preventous Collaborative Health, Provital Health and Copeman Healthcare Centre (the Healthcare providers) provided by Alberta Health (AH) to Health Canada because the information was not supplied to a government institution by a third party.

Issues

• Can HC release the Audit Reports notwithstanding the exemption under paragraph 20(1)(b) of the ATIA?
• As a matter of law, are the Audit Reports in the possession of HC?
• As a matter of constitutional law, can the Federal Government release documents that belong to the Province of Alberta?

Facts

AH conducted an audit of Preventous Collaborative Health, Provital Health and Copeman Healthcare Centre (the Healthcare providers) and sent the Audit Reports to Health Canada (HC). HC received a request under the ATIA for the Audit Reports.

Health Canada assessed which records triggered an obligation to give notice in accordance with section 27 of the ATIA and provided the Healthcare providers with the opportunity to make written representations regarding the disclosure of the Audit Reports on more than one occasion. The Healthcare providers objected to the disclosure of the Audit Reports in their entirety. HC notified the Healthcare providers that it would be releasing a redacted version of the Audit Reports, with certain information exempted from disclosure pursuant to subsection 19(1) of the ATIA (personal information) and paragraph 20(1)(b) of the ATIA (confidential commercial, scientific and technical information). The Healthcare providers brought an application to the Federal Court under section 44 of the ATIA, objecting to HC’s decision.

Decision

The Court dismissed the Application and authorized the release of the Audit Reports with HC’s already made redactions with respect to personal information pursuant to subsection 19(1) and to remove the redactions made under paragraph 20(1)(b).

Reasons

Operational takeaways

• This case deals with a request for contribution agreement that has a standard confidentiality clause, confirming that the Access to Information (ATIA) continues to apply.
• A contractual term that subjects an agreement to the ATIA also inherently exempts from disclosure certain third-party information, as provided in subsection 20(1) of the ATIA. The usual rules for subsection 20(1) apply.
• Labour relations negotiations are clearly contractual negotiations and fall within paragraph 20(1)(d) of the ATIA, but evidence of a reasonable expectation of probable harm must be established to invoke the exemption.

Summary

This is an application pursuant to section 41 of the ATIA for a review of ISED’s decision to refuse to disclose information in a Contribution Agreement between ISED and Ford Motor Company (Ford) for a $102M non-repayable contribution that was publicly announced by the Trudeau government. The Contribution Agreement had a standard confidentiality clause that acknowledged it was subject to the ATIA. While the Federal Court agreed that some redactions pursuant to paragraphs 20(1)(b) and 20(1)(c) of the ATIA were justified, it found that other information in the Agreement must be disclosed.

Issues

• Whether any portion of the Disputed Information is exempt from disclosure pursuant to paragraph 20(1)(b) of the ATIA;
• Whether any portion of the Disputed Information is exempt from disclosure pursuant to paragraph 20(1)(c) of the ATIA;
• Whether any portion of the Disputed Information is exempt from disclosure pursuant to paragraph 20(1)(d) of the ATIA; and
• If any of the Disputed Information is exempt from disclosure, whether there is an obligation to sever non-exempt information under section 25 of the ATIA.

Facts

Through the Automative Innovation Fund (AIF), ISED concluded a Contribution Agreement with Ford. The Contribution Agreement contained a confidentiality clause that included a mention that it was subject to the ATIA.

After the Trudeau government announced that it was giving $102M to Ford, Ms. Clowater submitted a request to ISED pursuant to the ATIA seeking disclosure of the “funding agreements between the Government of Canada and Ford/Ford Company of Canada from the Automotive Innovation Fund since July 1, 2016”.

ISED released a redacted version of the Contribution Agreement to Ms. Clowater. Ms. Clowater complained to OIC. While ISED released some additional information, it continued to redact information that belonged to Ford. OIC issued its final report recommending further disclosure, while accepting the legitimacy of some redactions.

ISED did not accept the OIC’s recommendations and refused to disclose most of the recommended information to Ms. Clowater.

Ms. Clowater made an application to Federal Court asking the Court to order the release of the redacted information that the OIC had recommended be released, implicitly accepting the fact that some of the information has been properly redacted.

Decision

Only a portion of the redacted information is exempt from disclosure pursuant to paragraphs 20(1)(b) and 20(1)(c) of the ATIA; the balance of the redacted information must be disclosed by ISED to Ms. Clowater. The redactions pursuant to paragraph 20(1)(d) were not properly made, and additional information must be disclosed after the Court applied section 25 (severance).

Reasons

A contractual term that subjects an agreement to the ATIA also inherently exempts from disclosure certain third-party information, as provided in subsection 20(1) of the ATIA.

The evidence established that the criteria for paragraph 20(1)(b) of the ATIA were met for some of the disputed information. There were other portions of the disputed information, however, where ISED had not demonstrated that the exemption applied.

In relation to certain articles, the Court was not satisfied that there was the requisite evidence to explain how a reader can make the asserted inferences (as set such that it results in harm to Ford). Simply stating that an inference can be drawn, without further explanation, is not sufficient. As such, the Federal Court was not satisfied that Ford demonstrated a probable expectation of material harm as required by paragraph 20(1)(c) of the ATIA.

Operational takeaways

The same two-step test used to determine whether requested records in a ministerial office are under the control of a government institution can also be applied to assess control of third-party records.

Summary

The central issue in this request for access to information under the Access to Information Act (ATIA) is whether the records are “under the control” of Public Services and Procurement Canada (PSPC). PSPC advised the requester that it did not have physical possession of the records. These records are in the possession of Brookfield Global Integrated Services Inc. (BGIS), a private sector corporation that PSPC contracted to manage federal government properties for which the federal institution is responsible. The records relate to a subcontract between BGIS and another party to do work at a PSPC-owned building. The application was dismissed because the records at issue were found to be “under the control” of PSPC and the federal institution was ordered to take steps to obtain the requested records and process them in accordance with the ATIA.

Facts

The requester, a former Health Canada employee who became ill and retired, requested nine records reports related to the building. PSPC did not physically possess the records; they were held by a private contractor (BGIS) managing federal properties on PSPC’s behalf. The background involves a legal dispute where the Information Commissioner of Canada ordered the Minister responsible for PSPC to retrieve certain records related to a subcontract for work at a federal building (Health Protection Building) so they could be provided to the access to information requester, Marilyn Miller, under the ATIA. The central issue in this ATIA subsection 41(2) application is whether these records are “under the control” of PSPC, obligating the federal institution to comply with the access request.

The nine requested documents are below as described in the Request, with numbers added by the parties during this litigation for ease of reference:

PSPC Documents Related to this Contract Being Approved
IAR [Investment Analysis Review] [#1] Statement of Requirement [#2]

BID DOCUMENTS
Addendum 1.pdf, uploaded Date Mar 1, 2017 [#3] Addendum 2.pdf, uploaded Date Mar 7, 2017 [#4]

RFP DOCUMENTS
Attachment No. 7-Designated Substance Report 1.pdf, Uploaded 2017-02-21 [#5]
Attachment No. 8-Designated Substance Report 2.pdf, Uploaded 2017-02-21 [#6]
Section B Scope of Work [#7]

DST Consulting Engineers Inc. Completed Stipulated Bid Document Appendix F Supplementary Conditions [#8]
DST Consulting Engineers Inc. SUBMITTED FINAL CONTRACT REPORT Final Investigate & Report (I&R) including lab analysis reports, photos, diagrams [#9]

Issues

• Whether PSPC had control of the records at issue under subsection 4(1) of the ATIA; and
• Should the Court also order PSPC to retrieve a record (#9) from BGIS?

Decision

• The Court dismissed PSPC’s application seeking a declaration that it is not required to comply with the Information Commissioner’s order.
• The Court ordered PSPC to:
  • request certain documents #3 to #8 in the access to information requester’s request from BGIS;
  • seek information and assistance from BGIS regarding a certain document #9 in the access to information requester’s request and request a copy if necessary;
  • process and further respond to the requester’s access request in accordance with the ATIA; and
  • Pay costs to the access to information requester in the amount of $6,000 all-inclusive and no costs ordered as between PSPC and the Information Commissioner.

Reasons

Operational takeaways

• Confidentiality orders enable the Federal Court to meet its obligations under subsection 46(1) of the Privacy Act by allowing the Court to verify whether the information exists, whether exemptions apply, and whether discretion was properly exercised.

Summary

The Confidentiality orders pursuant to subsection 46(1) of the Privacy Act allow the Federal Court and the Federal Appeal Court to determine whether or not information exists, whether or not the exemptions being claimed by the government institution are applicable and, if necessary, to review the exercise of the government institution’s discretion not to disclose the information.

Issue

• Were the decisions of Public Safety and CSIS reasonable?

Facts

Mr. Kandasamy made requests to Public Safety and the Canadian Security Intelligence Service (CSIS) for access to personal information concerning him included in these institutions’ personal information banks. Public Safety disclosed some records and neither confirmed nor denied other requested records exist. It added that, if they exist, such records could reasonably be exempt from disclosure under section 21 of the Privacy Act. CSIS advised that one of the personal information banks identified by Mr. Kandasamy did not exist, that it found no personal information concerning Mr. Kandasamy in some of the banks, and that it neither confirmed nor denied that some of the requested records exist in the remaining banks. It added that, if they exist, such records either would be exempt or could reasonably be exempt from disclosure under sections 18, 21 and/or 22 of the Privacy Act.

The Office of the Privacy Commissioner found Mr. Kandasamy’s complaints ill-founded. Mr. Kandasamy applied to the Federal Court for judicial review of the decisions of Public Safety and CSIS. The Federal Court concluded that the institutions had reasonably applied the provisions on which they relied and that it was reasonable, and in respect of certain records legally required, for the institutions to neither confirm nor deny that some records exist.

Decision

The appeals were dismissed with costs to the Attorney General of Canada. The Federal Court correctly identified the applicable standard as that of reasonableness and applied that standard properly.

Reasons

Mr. Kandasamy raised no arguments as to the unreasonableness of the decisions of the institutions. His submissions focus on three elements: (1) his belief that he is under constant surveillance and subject to torture; (2) the need for legislative reform in the areas of access to information and privacy; and (3) a concern with the Federal Court’s orders that some materials filed by the Attorney General be kept confidential, sealed, and not accessible by him.

It is not the Court’s role to determine whether Mr. Kandasamy is under surveillance, subject to torture, or to amend legislation. To alleviate Mr. Kandasamy’s third concern, the Court explained that it is common for the Federal Court to make confidentiality orders because of subsection 46(1) of the Privacy Act, which requires the Federal Court to take every reasonable precaution to avoid disclosure of (a) information that a government institution is authorized to refuse to disclose; and of (b) confirmation as to whether such information exists. Confidentiality orders allow the Federal Court to comply with its statutory obligation of precaution. They enable determinations of whether or not the information exists and the exemptions being claimed by the government institution are applicable. If necessary, they allow Courts to review the exercise of the government institution’s discretion not to disclose the information. In other words, these orders assist the Federal Court, and on appeal this Court, in determining whether the government institution complied with the law.

Operational takeaways

• Paragraph 19(2)(a) of the ATIA requires proper authorization before disclosing personal information. A court order that provides access to certain personal information does not confer a general right to all information held by the institution.

Summary

The Federal Court dismissed an application brought by Mr. Ali for access to information relating to his minor child held by Immigration Refugees and Citizenship Canada (IRCC). The Court found that IRCC correctly applied the exemptions under the ATIA, specifically subsections 10(2) and 19(1), to refuse the request without confirming the existence of the records because the information was personal to the minor child. Furthermore, Mr. Ali did not have sole authority to request the information as he failed to provide consent from both parents or a valid court order granting such authority. Consequently, the Court upheld IRCC’s decision to withhold the information and declined to award costs.

Issue

• Did IRCC properly invoke subsections 10(2) and 19(1) of the ATIA to refuse access to information, without confirming its existence, as the information was personal information of the minor child?

Facts

Zulfiqar Ali made an access to information request to IRCC on April 12, 2021, seeking medical and immigration records relating to his minor child. IRCC required additional consent to release the minor child’s information, specifically consent from both parents, or a valid court order granting custody rights. Mr. Ali provided a court order that allowed him to receive medical reports from the child’s doctor, but it did not authorize access to IRCC-held information. Due to the lack of proper consent or a court order confirming a custody agreement that permitted Mr. Ali to obtain the requested record, IRCC refused to confirm or deny the existence of the records, citing the protection of the minor child’s personal information. The application by Zulfiqar Ali was made to the Court following a report by the Office of the Information Commissioner on a complaint relating to IRCC’s decision to neither confirm nor deny the existence of information requested.

Decision

• The application for judicial review was dismissed.
• No costs were awarded to IRCC, considering Mr. Ali’s self-represented status and the nature of the case.

Reasons

The Court conducted a de novo review of the IRCC's decision to neither confirm nor deny the existence of the requested records concerning the minor child. It found that IRCC properly invoked subsections 10(2) and 19(1) of the ATIA, which protect personal information unless the individual consents to its disclosure. Mr. Ali did not have sole authority to request the information as per subsection 19(2). The Court concluded that the refusal to disclose was appropriate and that the mandatory exemption for personal information was correctly applied. The Court also clarified that the existing Court Order did not entitle the Mr. Ali to all information about the minor child held by IRCC. Consequently, the application was dismissed.

Operational takeaways

• The fact that the requester may already know individuals, does not diminish their privacy rights. Under the ATIA and the Privacy Act, information already known to a requester remains protected personal information, and privacy protections prevail unless a statutory exception clearly applies.
• A record containing personal information about identifiable individuals cannot be disclosed to a requester when none of the exceptions found in subsection 19(2) apply.
  • Disclosure could not proceed under paragraph 19(2)(a) because obtaining consent from all individuals referenced in the investigation reports was neither feasible nor reasonable, and no evidence showed that any individual had publicly disclosed or consented to disclosure of their personal information.
  • The information was not publicly available, access by internal employees through an intranet does not constitute public availability, and no evidence demonstrated that details of the investigations had been made public.
  • The conditions for disclosure under section 8 of the Privacy Act were not met. In particular, subparagraph 8(2)(m)(i) did not apply because the public interest did not outweigh the significant privacy intrusion disclosure would entail. The protection of individual privacy prevails over the right of access to information, as privacy is a fundamental value in modern, democratic states.
• The Court concluded that the institution had considered whether any part of the record that did not contain any such personal information could be severed and had properly refused to make the said severance among the records, in accordance with section 25 of the ATIA.

Summary

This is an application for judicial review under subsection 41(1) and section 44.1 of the Access to Information Act (ATIA) brought by a retired public servant who sought disclosure of three Global Affairs Canada (GAC) investigation reports relating to misconduct by local staff at the Canadian Embassy in Dakar. The Court conducted a de novo review and held that the requested records contained personal information that must not be disclosed under subsection 19(1) of the ATIA. The Court also found that none of the exceptions in subsection 19(2) applied, and that severing the records under section 25 of the ATIA was not feasible without revealing personal information.

Issues

• What is the standard of review applicable to issues raised in an application for review under the ATIA?
• Is the information requested subject to the personal information provisions in subsection 19(1) of the ATIA?
• Whether GAC reasonably exercised its discretion under subsection 19(2) of the ATIA.
• Whether GAC erred in refusing to sever the records required under section 25 of the ATIA.

Facts

Ms. Matas requested a 2018 inspection/investigation report relating to fraud and the dismissal of three local Embassy employees in Dakar. GAC withheld the records under subsection 19(1) of the ATIA, claiming they contained personal information about identifiable individuals.

The Office of the Information Commissioner found Ms. Matas’s complaint not well-founded, concluding the records contained personal information and no subsection 19(2) exception applied.

Ms. Matas sought judicial review, arguing that the refusal was unjustified, that GAC improperly exercised discretion under subsection 19(2), and that severance was possible under section 25. She also claimed personal harm (housing, health, disability leave) arising from circumstances of her posting in Dakar.

GAC responded that the investigation reports were saturated with personal information of identifiable individuals, including details that could reveal who was investigated given the small workplace and the nature of the allegations.

Decision

The Court dismissed the application for judicial review. The Court concluded that GAC was obliged to refuse disclosure of the investigation reports which contain personal information of individuals within the meaning of section 3 of the Privacy Act and are not covered by the exemptions set out in subsections 3(j) and 3(l) of the Privacy Act. GAC exercised its discretion appropriately since the circumstances set out in subsection 19(2) of the ATIA did not exist in this case and could not justify the disclosure of the personal information in question. GAC met its obligation to consider whether any part of the record that did not contain any such personal information could be severed and properly refused to make the said severance among the records, in accordance with section 25 of the ATIA.

Reasons

Operational takeaways

• Disclosure of estate information to potential beneficiaries is consistent with paragraph 8(2)(a) of the Privacy Act because the information was collected for the purpose of administering the estate. Providing the accounting to the Deceased’s children aligns with that purpose, rendering the refusal to disclose unreasonable.

Summary

The information was obtained to administer the Estate, and the Deceased’s children, as potential beneficiaries, requested that information. Accordingly, it appears that such disclosure is permissible pursuant to paragraph 8(2)(a) of the Privacy Act.

Issues

• Indigenous Service Canada (ISC) attributes a negligible value to an on-reserve property in the context of the administration of an estate for an intestate, status Indian, who is ordinarily an on-reserve resident. Is this practice reasonable?
• In the Decision of the Estate Administrator it was determined that an accounting of the Estate to the Deceased’s children is not required. Is this reasonable?

Facts

The Deceased’s Estate included interests in several parcels of land in the Okanagan Indian Reserve No. 1. ISC declared the Deceased’s Will void and sent a letter to the Deceased’s children advising that because the Deceased died intestate, the sole heir to the Estate was the Deceased’s spouse, pursuant to the Indian Act. ISC appointed an Estate Administrator who advised the Deceased’s children that it is ISC’s practice to consider the value of on-reserve land that is not subject to a registered lease as negligible and that they were only able to divulge information regarding the estate to the Deceased’s spouse.

The Deceased’s children made an application for judicial review of the Estate Administrator’s decision not to provide them with an accounting of the Estate.

Decisions

The Court granted the application. ISC’s practice of attributing a negligible value to on-reserve property was not reasonable. The decision of the Estate Administrator not to provide the Deceased’s children with an accounting of the Estate was also unreasonable. The Court remitted the matter back to ISC to reconsider the value of the on-reserve assets and to provide an accounting of the Estate to the Deceased’s children.

Reasons

Summary

Section 8 of the Charter protects IP addresses. An IP address links an Internet user to their online activity. Accordingly, it attracts a reasonable expectation of privacy. As a result, a request by the police for an IP address is a search under section 8 of the Charter.

Issues

• Whether reasonable expectation of privacy attaches to an IP address.
• Whether a request by state to third party for IP address constitutes a search.

Facts

During an investigation into fraudulent online purchases from a liquor store, police contacted the third-party processing company that managed the store’s online sales and obtained the IP addresses used for the purchases. Police then obtained a production order compelling the Internet service provider (ISP) to disclose the name and address of the customer for each IP address. Police used this subscriber information to seek and execute search warrants. Mr. Bykovets was arrested. He challenged the request by police to obtain the IP addresses from the processing company, alleging it violated his right against unreasonable search and seizure under section 8 of the Charter.

Decision (Majority of the Court)

A request by the state for an IP address is a search under section 8 of the Charter. The appeal should be allowed and a new trial ordered.