Annual Report: 2002-2003

Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), File No. 28601, Supreme Court of Canada (on Appeal from the Federal Court of Appeal)

McLachlin C.J., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ., Appeal heard and reserved on October 29, 2002, decision issued on March 6, 2003.

(See 2001-2002 Annual Report, p. 85, 2000-2001 Annual Report, p. 111 and 1999-2000 Annual Report, p. 47 for further details.)

Nature of Proceedings

This was an appeal from a decision rendered by the Federal Court of Appeal, upholding the Applications Judge's ruling which dismissed the Information Commissioner's application for review brought pursuant to section 42 of the Act.

Factual Background/Issues/Outcome

(See pages 17 to 19 for details.)

The Information Commissioner of Canada and TeleZone Inc. v. The Minister of Industry Canada, (A-824-99) Court of Appeal

3430901 Canada Inc. and TeleZone Inc. v. The Minister of Industry Canada, (A-832-99) Court of Appeal

The Minister of Industry Canada v. The Information Commissioner of Canada and Patrick McIntyre, (A-43-00) Court of Appeal

Nature of Proceedings

(See Annual Report 2001-2002 p. 75 for more details.)

The commissioner had sought leave to appeal the decision of the Federal Court of Appeal to the Supreme Court. On June 13, 2002, the Supreme Court of Canada dismissed the application for leave to appeal with costs.

The Minister of Environment Canada v. The Information Commissioner of Canada et al., 2003 FCA 68, Court File No. A-233-01, Federal Court of Appeal

Décary, Noël, Sharlow J.A., February 7, 2003

(See 2001-2002 Annual Report, p. 86 for more detail and 2000-2001 Annual Report, p. 107 for more details.)

Nature of Proceedings

This matter involved an appeal from the determination of the Trial Judge, Blanchard J., which allowed the Information Commissioner's application for judicial review, pursuant to section 42 of the Access to Information Act in relation to the minister's refusal to disclose requested records based on section 69 of the Act.

(See pages 15 to 16 for details.)

Canada Post v. Canada (Minister of Public Works) 2002 FCA 320, Court File No. A-489-01 Court of Appeal

Décary, Evans and Pelletier JJ.A., September 11, 2002

Background

This is an appeal of an order of Madam Justice Tremblay-Lamer varying the confidentiality order issued by Mr. Justice Blanchard in court file T-2117-00.

On May 1, 2000, the Minister of Public Works and Government Services Canada (PWGSC) received a request for access to a specific report which had been provided to it by Canada Post. The request was denied as being a cabinet confidence and the requester complained to the Information Commissioner.

During the Information Commissioner's investigation, the Minister of Public Works changed his position and determined that some of the requested information was not excluded pursuant to section 69. Notices pursuant to sections 27 and 28 were sent to Canada Post indicating that PWGSC intended to disclose some of the requested information.

On October 23, 2000, Canada Post applied to the Federal Court of Canada pursuant to section 44 of the Act seeking to block disclosure. On December 7, 2000, in the course of the proceedings, Mr. Justice Blanchard issued a confidentiality order. The Information Commissioner was not a party to these proceedings.

On August 17, 2001, in the course of the commissioner's ongoing investigation into the refusal to disclose some of the requested information, PWGSC refused to provide records to the commissioner because of the confidentiality order issued by Justice Blanchard. The commissioner took the view that the confidentiality order did not justify refusal to provide records to him. He issued a subpoena duces tecum requiring the ATIP coordinator at Public Works and Government Services Canada to produce the information.

The minister filed a motion for a variance of Mr. Justice Blanchard's confidentiality order in order to comply with the subpoena. The Information Commissioner was granted leave to intervene on the motion and opposed the motion, arguing that there was no conflict between the confidentiality order and the subpoena. The commissioner's reason for opposing the motion was to ask the court to settle, for the future, the principle that disclosure of the records to the commissioner does not violate any confidentiality order which is issued in a parallel section 44 case.

On August 23, 2001, the Motions Judge, Madam Justice Lamer, agreed that there was no conflict between the confidentiality order and the subpoena but, by abundance of caution, she varied the confidentiality order. The Information Commissioner appealed that decision in order to seek a more definitive direction for future cases.

Issues Before the Court

Since the Information Commissioner's subpoena was supported by the Trial Judge and since it had been complied with, the court considered whether or not the appeal was moot.

Findings

The court held that the criteria established in Borowski governing the court's exercise of its residual discretion to hear and determine moot issues had not been met. The fact that a question was liable to recur in subsequent litigation was not in itself sufficient to engage the discretion of the court, when, as here, the issue was not one that of its very nature is evasive of review. Moreover, the court held that the future utility of deciding the appeal on its merits was diminished by the fact that the terms of confidentiality orders issued under section 47 of the ATIA varies from case to case.

Judicial Outcome

The appeal was dismissed. The court, however, concluded by stating the following: "we would only observe that, in all the cases to which counsel drew our attention, the deciding prothonotary or judge concluded that the terms of the confidentiality orders under consideration did not conflict with the commissioner's subpoena. Moreover, in none of these cases was it said that a variance was necessary in order to avoid a conflict."

Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 950 Court of Appeal, Court File No. A-326-01

Décary, Noël and Evans JJ.A., June 21, 2002

Nature of Proceedings

This was an appeal from a decision by the Applications Judge, Madam Justice Dawson, dismissing the Information Commissioner's application for review brought pursuant to section 41 of the Act.

Factual Background

In response to allegations of discriminatory behaviour and harassment at Citizenship and Immigration Canada's Case Processing Centre in Vegreville, Alberta, the minister requested an independent consultant to undertake an administrative review with the objective of enhancing respect in the workplace for all individuals. As part of this administrative review, a number of employees and former employees were interviewed on a voluntary basis. They were, likewise, assured that their interviews would remain confidential.

The administrative review culminated in the consultant preparing a report to the minister. In part, this report was critical of the director of the Centre, as bearing some responsibility for the problems which were found to exist at the Centre. On the same day that the director was provided with a copy of the report, he was relieved of his duties.

Having effectively been dismissed subsequent to the report's release, the director made an access request to Citizenship and Immigration for the interview notes upon which the report was based. Ultimately, the minister provided portions of the opinions expressed about him but refused to release the names of the interviewees and any contextual information within the notes that might reveal the identities of those interviewed. The basis for this refusal was the minister's reliance on subsection 19(1) of the Access to Information Act which incorporates the definition of personal information contained in section 3 of the Privacy Act.

The requester complained to the Information Commissioner, who after investigating the complaint, commenced an application for judicial review under section 42 of the Access to Information Act.

This was an appeal from the Trial Judge's ruling which dismissed the Information Commissioner's application for review. The Trial Judge held that paragraph 3(j) required the release of the names of those managers with the responsibility of preventing harassment in the workplace, along with their views and/or opinions expressed. However, with regard to the non-management employees interviewed, the Trial Judge held that paragraph 3(i) of the Privacy Act applied so as to exempt from disclosure the names and any contextual identifying information contained in the interview notes. The Trial Judge reasoned that the disclosure of these interviewees' names and identifying information would reveal these individuals' participation in a voluntary administrative review, and that this, in itself, was the personal information of participants.

The Information Commissioner appealed the Trial Judge's ruling. The minister cross-appealed with regard to the application of paragraph 3(j) to those interviewees who were managers.

The Privacy Commissioner was granted leave to intervene and advanced the same position as the Information Commissioner.

Issues Before the Court

The central issues before the Federal Court of Appeal were as follows:

a) whether the promise of confidentiality provided to interviewees can override the obligation to disclose views and opinions expressed about another;

b) whether the names of individuals who express views or opinions about another are exempted from disclosure on the basis that the same constitutes the "personal information" of the individual expressing the same, pursuant to paragraph 3(i) of the Privacy Act, and

c) where personal information pertaining to the interviewee is intermixed with views and opinions about another, such that to sever the same would render the views and opinions about another incomprehensible, must the personal information pertaining to the interviewee be disclosed.

Findings

The Federal Court of Appeal rejected the argument that a promise of confidentiality can override the obligation to disclose, stating:

". . .the promise of confidentiality made by the department to some of the interviewees cannot override the obligation imposed by statute to release the information, nor be opposed to Mr. Pirie should he be entitled to disclosure." (paragraph 11)

The Federal Court of Appeal also held that, pursuant to paragraph 3(g) (and mirrored in paragraph 3(e)), the names of individuals, who express views or opinions about another, are the "personal information" of the person being the subject of the view or opinion expressed, stating:

"Contrary to the Applications Judge, I conclude that the name and identity of interviewees are as much the personal information of Mr. Pirie, pursuant to paragraph 3(g), as is the substance of the opinions or views expressed." (paragraph 25)

Further, the Federal Court of Appeal noted that the privacy interest in preserving the anonymity of participants in the inquiry is minimal in that "to the extent that they can justify the views they expressed, they should not fear the consequences of the disclosure" (paragraph 31) According to the court, the private interest of the requester is significant, given that the actions taken by the department as a result of the report is indicative that the department viewed the requester as bearing some responsibility for the problems which existed. The court stated :

"the public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. . . fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views, to challenge their accuracy and to correct them if need be." (paragraph 34)

Finally, the Federal Court of Appeal concluded that severance of "intermixed" information must be done in such a way as to give the requestor sufficient contextual information to enable him to fully understand the opinions which had been expressed about him.

Judicial Outcome

The appeal was allowed. The Minister of Citizenship and Immigration Canada was ordered to disclose to the requester the records, or parts thereof, that contain the opinions expressed about the requester, the names of those expressing the opinions and the contextual information relating to the opinions.

The Information Commissioner of Canada v. The Attorney General of Canada and Brigadier General Ross, (T-656-01, T-814-01 and T-1714-01) Federal Court Trial Division

(See 2001-2002 Annual Report, p. 86 for further details.)

These applications for review were discontinued on May 29, 2002, and the records in respect of which the government had asserted privilege were disclosed to the Information Commissioner.

The Attorney General of Canada and Brigadier General Ross v. The Information Commissioner of Canada, (T-924-01) Federal Court Trial Division

(See 2001-2002 Annual Report, p. 88 for further details.)

This application for review was discontinued on February 28, 2002, and the records in respect of which the government had asserted privilege were disclosed to the Information Commissioner.