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Annual Report: 2002-2003CHAPTER V:THE ACCESS TO INFORMATION ACT IN THE COURTS C. Court Decisions Not Involving the Information Commissioner AB v. Canada (Minister of Citizenship and Immigration) 2002 FCT 471, IMM-1683-01 Federal Court Trial Division O'Keefe J., April 26, 2002 Nature of Proceedings This was an application for judicial review of a decision of the Immigration and Refugee Board pursuant to section 18.1 of the Federal Court Act. Factual Background The applicant, a former member of the Peruvian wrestling team, is a successful refugee claimant. On February 19, 2001, he was informed by the Board that his personal information form, the transcript of his refugee determination hearing and the reasons for the determination that he was a refugee were being put into evidence at the hearing of a refugee claimant with a similar background. The applicant objected to the release of his personal information. Despite his representations, the information was released by the Board and put into evidence. Before the court, the Board argued that, because the personal information was provided for "immigration purposes", the use of the information in a subsequent refugee determination hearing was a "consistent use" pursuant to paragraph 8(2)(a) of the Privacy Act. Issues Before the Court The issue to be decided by the court was : "Is the Board's decision to disclose the applicant's personal information unlawful, in that the disclosure was for a purpose and to an extent not permitted under the Privacy Act?" Findings The court concluded that the Board had improperly released the applicant's personal information. The court found that the Board was required to comply with the provisions of the Privacy Act as well as the confidentiality provisions in its own Act. When considering the exceptions set out in subsection 8(2) of the Privacy Act, the court stated that the exceptions in paragraphs 8(2)(a) and (b) of the Privacy Act are not "intended as a blanket endorsement for personal information of refugees to be shared at all refugee hearings [. . .] each case must be dealt with on its own merits." An example of a "consistent use" of a refugee's personal information would be the release of the information to show that subsequent testimony of a refugee giving evidence in another refugee determination hearing contradicts the information given by that person to the Board. The court concluded : "In this case, the purpose for which the information was obtained was the determination of the applicant's claim for convention refugee status. In order for the disclosure of the applicant's personal information to be justified under this section, the use of that information must be a use consistent with the purpose for which the information was collected. I do not find that the determination of the refugee claim of the other applicant is consistent with the purpose of determining the applicant's claim for convention refugee status." In considering sub-paragraph 8(2)(m)(i) of the Privacy Act, the court found that it would not apply unless the head of the government institution "provides an opinion that the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure". Since there was no such opinion, sub-paragraph 8(2)(m)(i) was inapplicable. Judicial Outcome The application for judicial review was allowed. The Board's decision to release personal information was unlawful and was consequently set aside (although the information had already been released). Sherman v. Canada (Minister of National Revenue), [2002] F.C.J. No. 779 (FCTD) Federal Court Trial Division, McKeown J., May 22, 2002 Nature of Proceedings This matter involves an application for judicial review, under section 41, of a decision by the minister refusing access. Factual Background This case involved an access request to the Minister of National Revenue for information concerning the extent to which Revenue Canada uses the United States Internal Revenue Service (IRS) to collect Canadian taxes and, in turn, the extent to which the IRS uses Revenue Canada to collect U.S. taxes. The minister refused to disclose the requested information, primarily based on paragraph 13(1)(a) of the Access to Information Act, which states that information obtained in confidence from the government of a foreign state is exempt from the right of access. In support of this position, the minister cited the Canada-United States Tax Convention, pursuant to which information received by either country is to be treated as secret and cannot be disclosed, save to those persons or authorities involved in the assessment of, collection of, or administration and enforcement in relation to taxes to which the convention applies. Further exemptions relied on by the minister included subsection 15(1), paragraphs 16(1)(b) or 16(1)(c) of the Access to Information Act. The requester complained to the Information Commissioner who, following his investigation, determined that the complaint was not well-founded. Thereafter, the requester brought an application for judicial review pursuant to section 41 of the Access to Information Act in relation to the minister's refusal. Issues before the Court The principle issue in this case was the proper interpretation to be given to paragraph 13(1)(a) of the Access to Information Act and whether this exemption applied to information concerning the extent to which the Canadian and American tax agencies rely on one another for the purposes of collecting taxes. A subsidiary issue was whether statistics about information properly exempted from disclosure pursuant to paragraph 13(1)(a) are, likewise, subject to the mandatory exemption with respect to information obtained in confidence from the government of a foreign state? Findings The court noted that paragraph 13(1)(a) is a mandatory class exemption such that it is not necessary to justify non-disclosure by reference to probable harm. (paragraph 17) Thus, the role of the court when reviewing decisions not to disclose pursuant to subsection 13(1) is to determine whether the head of the government institution erred in the factual determination that the requested information falls within the exemption. If it is determined that the information falls within the mandatory exemption contained in paragraph 13(1)(a), the head of the government must refuse to disclose the information unless the United States either consents to disclosure or makes the information public. The court determined that the requirements for paragraph 13(1)(a) were met. The information was exchanged pursuant to articles within the International Convention which require both CCRA and the IRS to treat the information obtained as secret. The court rejected the requester's argument that there was a difference between statistics about exempted information and the information itself, ruling that: ". . . the statistics are an integral part of the information supplied under the Convention, as the statistics could not exist without the information from the United States." (paragraph 18) The court held that subsection 13(2) of the Access to Information Act did not apply so as to permit the disclosure, as the IRS had neither consented to the disclosure nor made the information public. Further, having determined that paragraph 13(1)(a) applied so as to exempt the requested information from disclosure, the court did not go on to consider the application of subsection 15(1) or paragraphs 16(1)(b) and (c) of the Access to Information Act. Judicial Outcome The application for judicial review was dismissed. With respect to costs, the court did not accept the applicant's argument that important new principles were raised in relation to the Act so as to warrant costs being awarded in favour of the applicant regardless of the outcome, pursuant to subsection 53(2) of the Access to Information Act. However, because the application was brought in the public interest, i.e. as the applicant did not stand to benefit personally from the disclosure, the court refused to order costs. Bacon International Inc. v. Canada (Agriculture and Agri-Food Canada) 2002 CFPI 587, File Nos.
T-2290-98, T-2291-98, T-2292-98, T-2294-98 Nature of the proceedings This involves an application for judicial review under section 44 of the Access to Information Act concerning the decision of Agriculture and Agri-Food Canada to disclose a record of which the applicants requested its non-disclosure by relying on paragraphs 20(1)(b), 20(1)(c) and 20(1)(d) of the Act. Facts The applicants each operate a meat-packing and processing plant in the province of Quebec. The requester wanted to obtain the department's overall rating for all plants specializing in meat-packing and processing in the province of Quebec. The department decided to disclose the record because the applicants did not convince it that subsection 20(1) applied in order for the record not to be disclosed. The applicants filed this application for review to the Federal Court. Questions determined by the Court Do the exceptions stipulated in paragraphs 20(1)(b), 20(1)(c) and 20(1)(d) of the Act apply in the record? Findings The court reaffirms the general principles:
To assess the exceptions to disclosure, the court took into consideration Mr. Justice Rothstein's list of guiding principles in Canada (Information Commissioner) v. Canada (Prime Minister). With regard to the application of paragraph 20(1)(b), the court found that it did not apply in the case at bar because it did not satisfy the criteria requiring that the record contain information supplied to a government institution by a third party. The record for which the applicants requested an exemption from disclosure was not supplied by them but came from the department. With regard to paragraphs 20(1)(c) and 20(1)(d) of the Act, the court was not convinced that the rating received in 1998 could have caused them to suffer financial loss or could have interfered with future negotiations with the requester. The court wrote: [Translation] "The applicants' affirmations concerning the prejudice they could suffer are too general and laconic for the court to find non-disclosure of the record to be preferable. It involves, rather, a possibility of prejudice and not a probability, as the applicants must prove." On account of these findings, Mr. Justice Beaudry chose not to address the issue concerning the concepts of the C.C.Q. for the interpretation of paragraphs 20(1)(b), 20(1)(c) and 20(1)(d) of the Access to Information Act that were raised by the appellants. The court dismissed the application for judicial review and authorized the disclosure of the records. Jaylynn Enterprises Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2002] F.C.J. No. 791 (FCTD) Federal Court Trial Division McGillis J., May 27, 2002 Nature of Proceedings This was a motion in which Jaylynn Enterprises sought an extension of time to file an application for judicial review purportedly challenging a "decision" of the Information Commissioner. Factual Background Jaylynn Enterprises filed an application for judicial review in relation to decisions rendered by both the Information Commissioner and Privacy Commissioner. This application was struck on the grounds that, contrary to Rule 302 of the Federal Court Rules, (1998), two separate decisions were being challenged within a single application for review. Still, the Motions Judge stated that, in the event that leave was sought and obtained from the court to provide for any necessary extensions of time, Jaylynn Enterprises was at liberty to file separate applications against the Information Commissioner and/or Privacy Commissioner. Three months passed before Jaylynn Enterprises filed a motion seeking an extension of time for filing the application for review in relation to the Information Commissioner's determination. Issues Before the Court The procedural issue on this motion was whether or not to grant the applicant an extension of time to serve and file an application for judicial review of the Information Commissioner's decision? Findings on the Issue and Outcome The court noted that the applicant had:
On this basis, the court dismissed the motion requesting leave to serve and file the judicial review application beyond the requisite timeframe. Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] S.C.J. No 55 (SCC), Gonthier J., June 20, 2002 Nature of Proceedings This case involves the application of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA), and the Privacy Act, R.S.C. 1985, c. P-21 (PA), and, more precisely, the issue of whether the disclosure of personal information pursuant to the latter could reasonably be expected to be injurious to the conduct of lawful investigations by the Commissioner of Official Languages (COL). Factual Background The respondent, Robert Lavigne, worked in the Montreal office of the Department of National Health and Welfare. Between November 1992 and March 1993, Lavigne filed four complaints with the COL alleging that his rights in respect of language of work, and employment and promotion opportunities, had been violated by being forced to use French. In the course of their investigation, the investigators working for the Office of the COL questioned some 25 employees of the department, including the respondent, his immediate supervisor and some of his co-workers, as well as managers and other employees. Where the investigators encountered problems in conducting the investigation because the employees were reluctant to give information, fearing reprisals by the respondent, the investigators gave assurances that the interviews would remain confidential within the limits of sections 72, 73 and 74 of the Official Languages Act. After the interviews were conducted, the investigation report concluded that the respondent's four complaints were well-founded and made five recommendations to the department. The department did not question the COL's findings and agreed to implement the recommendations. In the course of proceedings initiated by the respondent for a remedy under Part X of the OLA, the respondent made several requests to the COL for disclosure of personal information contained in the files on the complaints he had made to him. While some information was provided to the respondent, other portions were withheld under the exemption set out in paragraph 22(1)(b) of the Privacy Act. The respondent filed a complaint with the Privacy Commissioner, who launched an investigation in the course of which he attempted to settle the respondent's complaints by mediation. The Privacy Commissioner ruled that the personal information contained in the testimony of the interviewees, for which consent to disclose had not been obtained, had been properly exempted from disclosure under paragraph 22(1)(b) of the Privacy Act. The respondent subsequently brought an application for judicial review of the COL's decision. At the time of the hearing of the appeal, the only personal information remaining at issue in the dispute consisted of the notes taken by the investigators in the Office of the COL of an interview with a named individual. Issues Before the Court
Findings Decisions of the Lower Courts: Federal Court, Trial Division According to Dubé J., under the Privacy Act, disclosure of personal information is the rule and withholding is the exception. Paragraph 22(1)(b) of the Privacy Act is an exception to the general rule and must therefore be narrowly construed. In this way, Dubé J. concluded that the section is a limited exemption relating solely to investigations that are underway or about to begin; it does not apply to future investigations. Being of the view that the investigation at bar was over, paragraph 22(1)(b) had no application. Additionally, Dubé J. concluded that the COL had not established that the disclosure of the personal information could reasonably be expected to be injurious to the conduct of its investigations. Federal Court of Appeal The Federal Court of Appeal concurred with Dubé J. that paragraph 22(1)(b) of the Privacy Act does not apply to protect information once the investigation has concluded. It also rejected the appellant's argument that Dubé J. had failed to consider whether disclosure could reasonably be expected to be injurious to the enforcement of any law of Canada, holding that the evidence in the record was not capable of supporting such a conclusion. The court held that the evidence, at most, established the possibility that witnesses may be reluctant to cooperate in an investigation unless they have an absolute assurance of secrecy. Analysis The Law: The Supreme Court began its analysis of the interplay between the Official Languages Act and the Privacy Act by considering the purpose and scope of the two Acts, and the respective roles of the two commissioners. Both the Official Languages Act and the Privacy Act are recognized by the court as having a special or "quasi-constitutional" status in the Canadian legal framework. The court states: "the Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this court has recognized them as having". However, the court goes on to state the following: "that status does not operate to alter the traditional approach to the interpretation of legislation, defined by Driedger in Construction of Statutes (2nd ed. 1983), at p. 87: today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The quasi-constitutional status of the Official Languages Act and the Privacy Act is one indicator to be considered in interpreting them, but it is not conclusive itself. The only effect of this court's use of the expression "quasi-constitutional" to describe these two Acts is to recognize their special purpose". The Privacy Act clearly applies to the Office of the COL, according to the court, because the latter is listed in the schedule to the Act as a government institution. Section 2 of the Privacy Act provides that its purpose is to extend the present laws of Canada, and this includes the Official Languages Act, although section 82 of the Official Languages Act provides that the provisions of Parts I to V prevail over any other Act of Parliament. None of the sections relied on by the appellant, however, are found in those parts. According to the Supreme Court, the Privacy Act must be applied to the Office of the COL in a manner consistent with the objective of the Official Languages Act of promoting equality of status of the two official languages of Canada and guaranteeing minority language groups the right to use the language of their choice within federal institutions. Parliament has expressly provided that investigations by the COL shall be conducted in private and that investigators shall not disclose information that comes to their knowledge in the performance of their duties and functions. These provisions illustrate Parliament's desire to facilitate access to the COL and to recognize the very delicate nature of the use of an official language at work by a minority group. On the other hand, the court concluded that the COL's argument was overly broad when it asserted that Parliament intended that the information collected by the COL would remain confidential, unless, disclosure is authorized by the Official Languages Act. The court held that "the effect of that interpretation is to exempt the Official Languages Act from the application of the Privacy Act." It would defeat the complainant's right to obtain access to personal information under the Privacy Act and would contravene the clear intention of Parliament. The two Acts, according to the court, must be interpreted and applied harmoniously. On the matter of whether or not the exemption for investigations contained in paragraph 22(1)(b) applies after an investigation is complete, the court found nothing in the provision that would suggest that it is limited to a specific investigation, or an investigation that is circumscribed in time. The court therefore held that there is no justification for limiting the scope of paragraph 22(1)(b) to current investigations. However, that determination did not end the matter. The court went on to examine whether or not disclosure of the withheld information could reasonably be expected to be injurious to future investigations by the COL. On this matter, the court concluded that the COL had failed to discharge the burden of proof of injury. The court noted that: "A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process. The COL has an obligation to be sensitive to the differences in situations, and he must exercise his discretion accordingly." Accordingly, the appeal was dismissed. Canada Post Corp. v. National Capital Commission 2002 FCT 700, Court File No. T-558-01 Federal Court Trial Division Kelen J., June 21, 2002 Nature of Proceedings This was an application for review pursuant to section 44 of the Access to Information Act of the respondent's decision to disclose certain information concerning financial sponsorship assistance received by the National Capital Commission (NCC) from Canada Post Corporation with respect to three events: Canada Day, the Sound and Light Show, and Christmas Lights. Factual Background A request was filed with the NCC under the Act for access to information related to financial assistance received from sponsors, for public events for which the NCC is responsible. Pursuant to sections 27 and 28 of the Act, the NCC informed Canada Post of this request. Attached to the letter was a record detailing information about Canada Post with respect to contributions made for events on Canada Day, the Sound and Light Show, and the Christmas Lights, that the NCC intended to release, on the grounds that the information was not protected under subsection 20(1) of the Act. Canada Post provided the NCC with submissions objecting to the release of the information. NCC rejected Canada Post's submissions. Canada Post proceeded with an application to the Federal Court. Issues Before the Court The issue was whether the amounts paid by Canada Post for sponsoring these events are exempt from disclosure pursuant to either paragraphs 20(1)(b), (c) or (d) of the Act. Findings As regards paragraph 20(1)(b) of the Act, the court concluded that the amounts of financial assistance for sponsorship was "financial and commercial information", which information was confidential in nature. It held, however, that the negotiated amounts of financial assistance cannot be characterized as information "supplied to a government institution by a third party" as required by paragraph 20(1)(b). As regards paragraph 20(1)(c), however, the court held that Canada Post had met its burden of proving that a reasonable expectation of probable harm would result from the disclosure of the information. Specifically, it held that the disclosure would give Canada Post's competitors a competitive advantage over Canada Post by enabling them to outbid Canada Post. The court also accepted that disclosure would probably undermine Canada Post's negotiating position just as disclosure of rental rates paid by one tenant to prospective tenants could prejudice the competitive position of a landlord. The court held that paragraph 20(1)(d) does not apply, as the evidence and submissions did not establish that disclosure would obstruct future negotiations. Judicial Outcome The application was allowed on the basis of paragraph 20(1)(c), and the court ordered that the respondent refuse to disclose the information. NCC decided not to appeal the decision. Proxamis Systems Inc. v. Canada (Minister of Public Works and Government Services), [2002] F.C.J. No. 1204, Federal Court Trial Division MacKay J., August 30, 2002 Nature of Proceedings This matter involved an application under section 44 of the Access to Information Act for review of the decision by the minister to release certain information originally submitted by Proxamis Systems Inc. concerning specified contracts concluded between it and the minister. Factual Background Proxamis sought to prevent the Minister of Public Works from disclosing certain "total cost figures" contained in a contract proposal that was accepted by the government, on the basis that such disclosure would be detrimental to Proxamis' competitive position and could severely damage its business. Issues Before the Court Are total cost figures contained in a proposal and/or tender bid exempt from disclosure pursuant to subsection 20(1)? More specifically
Findings i) Paragraph 20(1)(b) - Confidential Information
In reaching this conclusion, the court noted that :
ii) Paragraph 20(1)(c) - Reasonably expected to result in material financial loss or prejudice to competitive position
iii) Paragraph 20(1)(d) - Reasonably expected to interfere with contractual or other negotiations of a third party
Judicial Outcome The section 44 application for review of the minister's decision to release the information in question was dismissed. PricewaterhouseCoopers, LLP. v. Canada (Minister of Canadian Heritage) [2002] F.C.J. No. 1465 (F.C.A.) Court of Appeal Justices Linden, Sexton and Sharlow, October 23, 2002 Nature of Proceedings This was an appeal from a decision by the Applications Judge, Campbell J., allowing PricewaterhouseCoopers' application for review, brought pursuant to section 44 of the Act. Factual Background The Department of Canadian Heritage (Canadian Heritage) had a contract with PricewaterhouseCoopers (Pricewaterhouse), pursuant to which Pricewaterhouse was to produce two reports which would review, analyze and recommend changes to documents used by Canadian Heritage to "outsource" elements of the department's work. Despite that the contract contained a confidentiality clause, Canadian Heritage subsequently decided to disclose the two reports produced. Pricewaterhouse opposed this release, taking the position that the disclosure of the two reports would permit competitors to deduce the proprietary methodologies and information that it had applied, so as to prejudice Pricewaterhouse's competitive position. The Trial Judge agreed, ordering that the minister not disclose the two reports based on subsection 20(1) of the Access to Information Act. Canadian Heritage appealed, arguing inter alia error of law on the basis that there was insufficient evidence to support the Trial Judge's conclusion that competitors would be able to deduce information about Pricewaterhouse's means, methodologies and analysis used when preparing the two documents. Issues Before the Court The main issue before the Federal Court of Appeal was the degree of deference to be given by an Appellate Court when reviewing the decision of a Trial Judge based on a contention of insufficient evidence. Findings The Federal Court of Appeal began by noting that "the sufficiency of the evidence is particularly within the purview of the motions judge and it is very difficult for a Court of Appeal to second guess the Motions Judge on this point" (paragraph 3). Accordingly, the appropriate question to ask is whether "there was evidence which permitted [the Applications Judge] to reach the conclusion he did". More specifically, in order to succeed in an appeal based on insufficient evidence, the appellant "would have to demonstrate that the Motions Judge had made an error of principle or completely misapprehended the facts or committed an overriding and palpable error". The court noted that Canadian Heritage had adduced no evidence to support the position that competitors would not be able to deduce information concerning Pricewaterhouse were the two reports released and had not cross-examined Pricewaterhouse's witnesses. Accordingly there was no basis upon which the Appellate Court could overturn the decision of the Applications Judge. Judicial Outcome The appeal was dismissed with costs. Canada (Minister of Public Works and Government Services Canada) v. Siemens Canada Limited 2002 FCA 414, Court file No. A-700-01, Federal Court of Appeal Linden, Sexton and Sharlow JJ.A., October 24, 2002 Nature of Proceedings Application pursuant to section 44 of the Access to Information Act Factual Background Pursuant to section 44 of the Access to Information Act, Siemens sought judicial review of a decision of the Minister of National Defence to release records concerning a successful proposal submitted by Siemens in response to a RFP for the provision of in-service support on Halifax and Iroquois class ships. Initially, Siemens relied on the exemption found in subsection 20(1) but later raised subsection 24(1) of the Access to Information Act. Siemens argued that the records were exempt pursuant to subsection 24(1) of the Access to Information Act because the contract at issue was a "defence contract" within the meaning of section 30 of the Defence Production Act which is a provision listed in Schedule II of the Access to Information Act. The respondent government institution argued that documents which are part of the solicitation process did not fall within the scope of section 30 of the Defence Production Act. The Applications Judge found that the information at issue was indeed "obtained under or by virtue of the Defence Production Act" since the Minister of National Defence derives his authority to conduct procurements and all things incidental to procurements from section 16 of the Defence Production Act. The judge concluded that it is irrelevant that the proposal was submitted prior to the contract being formed because section 30 does not distinguish between documents which are part of the contract and documents which are part of the solicitation process. Thus, he concluded that the information was obtained by the minister by virtue of the Defence Production Act and the records were therefore exempt pursuant to subsection 24(1). The Minister of Public Works and Government Services Canada appealed the decision. Issues Before the Court In his Notion of Appeal, the appellant minister raised two issues :
Findings The Federal Court of Appeal, Sexton J.A., writing for the court, dismissed the appeal from the bench. The court held that an Applications Judge has the jurisdiction to consider a subsection 24(1) exemption on a review pursuant to section 44 of the Access to Information Act brought by a third party duly notified of the government institution's intention to release records. The court also found that the Applications Judge properly interpreted section 30 of the Defence Production Act. Thus, the court held that documents which form part of the solicitation process are obtained by the Minister of National Defence "under or by virtue of" the Defence Production Act. Judicial Outcome Appeal dismissed. Ruby v. Canada (Solicitor General) 2002 SCC 75, Court File No.: 28029, Supreme Court of Canada (on appeal from the Federal Court of Appeal) McLachlin C.J., L'Heureux-Dube, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ., November 21, 2002 Nature of Proceedings Constitutional Law - Charter of Rights, sections 1, 2(b), 7, 8; Privacy Act, paragraphs 51(2)(a), (3), & paragraph 22(1)(b) Factual Background Paragraphs 51(2)(a) and (3) of the Privacy Act state that, where a government institution has claimed the "foreign confidences" or "national security" exemption, it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera and to accept ex parte submissions at the request of the government institution refusing disclosure. (The Access to Information Act contains identical provisions.) Prior to the hearing of a judicial review application brought pursuant to section 41 of the Privacy Act, the applicant, Mr. Ruby, brought a motion wherein he challenged the constitutionality of these procedural sections of the Privacy Act. He argued, inter alia, that the mandatory nature of these proceedings infringed upon his subsection 2(b) & section 7 Charter rights. The Motions Judge held that paragraphs 51(2)(a) and (3) of the Privacy Act did not violate section 7. Further, while these provisions infringing upon subsection 2(b), this infringement was justified pursuant to section 1 of the Canadian Charter of Rights and Freedoms. On appeal, the Federal Court of Appeal affirmed the Motions Judge's ruling. Mr. Ruby appealed to the Supreme Court of Canada. Issues Before the Court
Findings Madam Justice Arbour wrote the unanimous reasons of the court. With respect to the first issue, the court recognized that the effect of paragraphs 51(2)(a) and (3), is to exclude an applicant from portions of the government's submissions. Nonetheless, the court held that, even assuming that this exclusion amounted to a deprivation of liberty or security of the person, it was not contrary to the principles of natural justice so as to amount to a violation of section 7 of the Charter. The court reasoned that "fairness" depends on the context of a particular case. While, the general rule is that a fair hearing must include an opportunity for the parties to know the opposing party's case, some situations require measures of secrecy, in which case fairness may be met through the existence of alternative procedural safeguards. The court held that paragraphs 51(2)(a) and (3) exist within the context of a statutory framework that provides sufficient procedural safeguards to ensure that there is no breach of the principles of natural justice, including : a burden on the government institution to establish that the information is properly exempted; a duty on the government institution to act in the utmost good faith and make full, fair and candid disclosure of the facts, including those that may be adverse to its interests, when making ex parte submissions; and recourse to the Privacy Commissioner and to two levels of court who have access to the information sought and to the evidence supporting the claimed exemption. Accordingly, the court held that, in the context of the unique circumstances in which a government institution asserts an exemption that the requested information involves national security and foreign confidences, there is no violation of section 7 where an applicant is excluded from parts of the government institution's submissions. With respect to the second issue, the court held that the requirement to hear section 41 application or appeal in camera, as required by paragraph 51(2)(a), was overly broad. Accordingly, it did not meet the minimal impairment part of the Oakes test and could not be saved under section 1 of the Charter. In reaching this conclusion, the court stated that it did not matter that the Solicitor General and the courts interpreted the in camera requirement in paragraph 51(2)(a) so as to apply only to those parts of a hearing that involve the merits of an exemption. The court held that this interpretation was not supported by the wording of the act so that "unless the mandatory requirement is found to be unconstitutional and the section is 'read down' as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature." Accordingly, the court held that the appropriate remedy is to read down paragraph 51(2)(a) so that it applies only to the ex parte submissions mandated by subsection 51(3). Judicial Outcome The appeal was allowed in part. Paragraph 51(2)(a) of the Privacy Act was read down so that it applies only to the ex parte submissions mandated by subsection 51(3). Macdonell v. Quebec (Commissioner d'accès à l'information), [2002] SCC 71, Supreme Court of Canada on appeal from the Québec Court of Appeal McLachlin C.J., L'Heureux-Dubé, Gonthier, Iacobucci and Arbour JJ. (Major, Bastarache, Binnie and LeBel JJ. dissenting), November 1, 2002 Nature of Proceedings Factual Background A journalist with the Montreal Gazette requested documents, pursuant to Québec's access legislation (Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1), concerning the expenses of members of the National Assembly. The request was denied based on an exemption (section 34) which bars access to documents "produced for a member", save for if the member provides his/her consent to disclosure. Further, while one minister provided his consent to disclosure, the National Assembly took the position that the information, nonetheless, could not be released as it contains "nominative information", which is deemed "confidential" and not subject to disclosure under section 53 of the Act. The requester appealed the National Assembly's refusal to the Québec Information Commissioner. The commissioner, dismissed the appeal. The present case is an appeal from judicial review proceedings with respect to the commissioner's decision. Issues Before the Court The focus of the case is on the appropriate standard of judicial review for decisions rendered by Québec's Information Commissioner and the application of this standard to the commissioner's finding that the documents were properly exempted from disclosure under the Act. Findings The Supreme Court of Canada unanimously agreed that the issue of whether the documents in issue were "produced for a minister" is a question of mixed fact and law. Likewise, the court unanimously found that the appropriate standard of review for the Information Commissioner's findings of mixed fact and law is one of "reasonableness". The court split, however, on the application of the "reasonableness standard" to the commissioner's finding that documents showing the expenses of a member of the National Assembly were "produced for a minister". The majority (5 judges) noted that the text of the statute states that all documents provided to the minister are exempt. Because the documents in issue were provided directly to the ministers, the majority held that the finding that they were, therefore, "produced for a minister" was not unreasonable, regardless of whether the documents were also used by the services of the National Assembly, or even belonged to it. The minority (4 judges) disagreed, stating that, in light of the purpose of the Access Act, the exemption with respect to "documents produced for a minister" ought to be narrowly construed so as to apply only to documents pertaining to members' decision-making process. The court, likewise, split regarding the nature of the question : "do the documents contain confidential 'nominative information'". The majority held that this too was an issue of mixed fact and law and (noting the relative expertise of the commissioner, the limited scope of a right of appeal from the commissioner's findings and the existence of a strong privatise clause intended to limit the scope of a superior court's intervention) determined that the same deferential "reasonableness" standard ought to apply. While the minority implied the issue was one of pure law, which called for the application of a more stringent standard of judicial review of "correctness". The majority applying the "reasonableness standard" held that the commissioner's decision that the information contained confidential "nominative information" was not unreasonable and therefore ought not to be disturbed. While the minority stated that the commissioner's finding failed to satisfy the standard of reasonableness, much less the standard of correctness which they favoured in this instance. Judicial Outcome The appeal was dismissed and the Québec Court of Appeal's ruling, restoring the Information Commissioner's decision to exempt from disclosure information concerning the expenses of members of the National Assembly, was upheld. Correctional Service of Canada v. Yeager, 2003 FCA 30, Court File No, A-332-01 Federal Court of Appeal Isaac, Malone, Stone JJ.A., January 22, 2003 Nature of Proceedings The underlying application was made pursuant to section 41 of the Access to Information Act. Factual Background The requester is a criminologist who conducts research on and is a critic of the Canadian penal system. He requested from Correctional Service Canada (CSC) access to the "1992-93 CSC release cohort currently being used to recalibrate the (GSIR) General Statistical Indicator of Recidivism with personal identifiers deleted" and "the code book used to define and identify/locate the variables in each case" as well as "a copy of the Offender Intake Assessment software. . .". The evidence demonstrated that the requested records do not exist but that they could be recreated. The Applications Judge found that there was no evidence that the recreation of the CSC release cohort would unreasonably interfere with the operations of the CSC. Similarly, she found that the creation of a code book would not unreasonably interfere with the operations of CSC. Consequently, she ordered that these records be provided to the requester. However, she concluded that CSC was not required to provide the requester with a copy of the relevant software because the requested software only existed for mainframe applications and not for personal computers and the CSC was not in the business of writing personal computer software. She also found that software is not a "record" as defined in the ATIA and, even if it existed, it would not be accessible to the requester. CSC appealed the order of the Motions Judge and the requester cross-appealed. Issues Before the Court The main appeal raised two issues :
The cross-appeal raised three issues :
Findings The Court of Appeal concluded that subsection 4(3) of the Act ". . .provides that a non-existent record that can be produced from an existing machine readable record is deemed to be a record to which the respondent [a requester] is entitled access." In so concluding, the court found that ". . .Parliament must have contemplated two different records : a new and distinct record must be produced from an existing machine-readable record." The court then set out several factors which would allow one to determine if a record is produced "from a machine-readable record". More specifically, the court stated that ". . .the answer to this question is largely fact specific. Whether a record is produced "from" a machine-readable record depends upon a number of factors, including the requisite amount of independent composition as compared to purely mechanical and routine editing or manipulation." The court then turned to section 3 of the Regulations which limits the obligation found in subsection 4(3) of the Act to cases where the production of the record would not "unreasonably interfere with the operations of the institution." The court concluded that the Applications Judge had misapprehended the evidence before her to such an extent that the error constituted an error of law. Thus, the court concluded that the evidence provided by the CSC was sufficient to demonstrate that the production of the requested data and the code book would "unreasonably interfere with the operation" of CSC. The Court of Appeal concluded that the Applications Judge had placed too high an evidentiary burden on the CSC. The court then turned to the cross-appellant's contention that the Applications Judge erred in not
ordering the release of the requested software. The court agreed that "software" is not a record
pursuant to the Access to Information Act. The court adopted the following reasons of the
applications judge, namely that : The Court of Appeal found that the Applications Judge had not erred in not declaring that the purpose and effect of CSC's actions were to deny the requester's constitutional right to freedom of expression as guaranteed by subsection 2(b) of the Charter. Finally, the Court of Appeal considered the issue of costs. The court concluded that the requester had raised an important new principle of law and should therefore be awarded his costs throughout despite his lack of success on appeal. On this point, Malone J.A. dissented stating that, once it has been determined that the requester has raised an important new principle of law in his application and subsequent appeal, the success of the requester is irrelevant to the matter of costs. Judicial Outcome The court allowed the appeal and dismissed the cross-appeal but awarded costs to the cross-appellant (requester) throughout on a party-and-party basis. Style of Cause : H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General) Neutral Citation: 2003 FCT 250, [2003] F.C.J. No. 344, T-1470-00, Federal Court of Canada - Trial Division Name of Judge : Layden-Stevenson J. Date of Judgment : February 27, 2003 Nature of Action: (sections 41, 42, 44 ATIA; section 18 FCA) This was an application for review brought pursuant to section 44 of the Access to Information Act. Factual Background H.J. Heinz Co. (Heinz) brought an application for review, objecting to the Canadian Food Inspection Agency's (CFIA) intention to release requested records. Heinz took the position that the records were exempted from disclosure based on section 19, paragraphs 20(1)(b) and (c) of the ATIA. The Application Judge presumed that the access requester was advised by the government institution of the third-party application. Heinz further raised a preliminary issue alleging that the records were not responsive to the request. Heinz maintained that the request was for "correspondence", a term which should be limited to "letters", as opposed to "communications". Prior to the hearing, CFIA conceded that portions of the requested records were exempt pursuant to section 19 but questioned Heinz's right claim exemptions, other than section 20 of the Act, within the context of a section 44 application for judicial review. In relation to the applicability of section 20 of the ATIA, the Crown took the position that paragraph 20(1)(b) could not apply because CFIA had created the records (albeit with confidential information from Heinz), and that there was insufficient evidence to support CFIA's reliance on paragraph 20(1)(c). Issues Before the Court
Findings on Each Issue (direct quotes from decision to extent possible)
Justice Layden-Stevenson held that the records identified by CFIA were responsive to the access request. In doing so, she rejected Heinz's argument that the term "correspondence" referred only to "letters", stating instead that "correspondence" included all "communications".
The court rejected the Crown's argument that, within the context of a section 44 application for review, the applicant third party is prevented from raising exemptions other than those set out in subsection 20(1) of the ATIA. Justice Layden-Stevenson noted that third parties are given the right, pursuant to section 28 of the Act, to make "respresentations" in relation to other exemptions, not just section 20 of the ATIA.
Layden-Stevenson J., applied the test for paragraph 20(1)(b) as outlined in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, stating:
Applying this test, she concluded that the records met these requirements and qualified for exemption.
Layden-Stevenson J. stated that Heinz could not demonstrated a reasonable expectation of harm simply by affirming in an affidavit that disclosure would result in financial loss and interfere with contractual and other relations (paragraph 39), stating that : "the threshold is probability, not possibility or speculation...There must exist, in the affidavit evidence, an explanation establishing that those outcomes are reasonably probable. Here, the evidence merely speculates as to probable harm and does not support the position that disclosure would result in a reasonable expectation of probable harm." (paragraph 40)
Layden-Stevenson J. rejected Heinz's argument that the records in their entirety ought not to be disclosed on the basis that severance would result in the release of "disconnected snippets". She held that severance was not unreasonable in the circumstances of this case. (paragraph 44) Judicial Outcome The application was allowed in part. Some portions were exempted under paragraph 20(1)(b) of the ATIA. Other portions were deemed to be exempted under section 19 as agreed by the government institution. CFIA was ordered to sever and release the records accordingly.
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