Annual Report: 2003-2004

B. The Commissioner in the Courts

The Information Commissioner of Canada v. The Attorney General of Canada and Jean Pelletier (A-268-03) Federal Court of Appeal

(See 2001-2002 Annual Report p. 88-90 for more details in the proceedings in Trial Division)

This is an appeal from an interlocutory order rendered within the context of an application under section 18.1 of the Federal Court Act.

Within the context of an application under section 18.1 of the Federal Court Act, in which the applicants seek a declaration that six specific documents are under the control of the Office of the Prime Minister and are not records under the control of the Privy Council Office within the meaning of subsection 2(1) of the Access to Information Act, the Attorney General and Jean Pelletier brought a motion to file certain evidence on a confidential basis.

This evidence consists of an affidavit attaching as exhibits a subpoena duces tecum issued by the Information Commissioner to Mr. Pelletier, listing and describing six documents ordered to be produced during the course of the commissioner’s investigation and a letter which accompanied the transmittal of these documents to the commissioner.

Because the application as against the commissioner was brought under the Federal Court Act and not the Access Act, the applicants could not rely on the protection offered by section 47 of the Access to Information Act, but instead were required to meet the test for the filing of materials on a confidential basis under the Federal Court Rules. Jurisprudence under these Rules makes clear that confidentiality orders go against the constitutional imperative of an open court and should only be issued where there are compelling, justifiable reasons to do so based on evidence before the court.

The commissioner opposed the motion on the basis, inter alia, that the only ground relied upon to support the purported need for confidentiality is a bald contention that, if the Applications Judge ultimately determines that requested records are not subject to PCO’s control, then not even a description of those records would be made public. The commissioner maintained that there is a distinction between records subject to an access request, not yet determined to be subject to release, and a document which provides only identifying information concerning those records. In support of this position, the commissioner relied on the SCC’s decision in Babcock which makes clear that a description of records is required even for "Cabinet Confidences" protected by a certificate issued under the Canada Evidence Act. The commissioner also pointed out that, in parallel proceedings T-1640-00 and T-1641-00, the Crown has identified the records being the subject of the Application for Review.

While the commissioner adopted the position that a confidentiality order was not needed with respect to the evidence filed, the commissioner argued that, if a confidentiality order was in fact deemed necessary, it should be granted subject to a direction that information with respect to the date, title, author and recipient of records subject to the applicants’ prayer for declaratory relief is not confidential.

Unconvinced, Mr. Justice MacKay granted the applicants’ motion on May 28, 2003. The reason provided was his conclusion that one of the purposes of the Application for Review is to determine whether information in issue is subject to disclosure under the Access to Information Act.

The commissioner has appealed this interlocutory order. He maintains inter alia that the evidence did not support either the subjective or objective test for filing information on a confidential basis as required by Rule 152(2) and that Mr. Justice McKay erred in fact and law when concluding that, when information relates to records alleged not to be subject to disclosure under the Access to Information Act, the material should be treated as confidential, notwithstanding the public interest in an open and accessible court.

However, whether there will be any need to pursue legal remedies, the appeal will require an assessment of the outcome of proceedings consolidated under Court File: T-582-01. Accordingly, the Information Commissioner brought a motion on consent requesting that the time for filing an agreement as to the contents of the appeal book be extended and the appeal be held in abeyance until the final determination of the applications consolidated under court file T-582-01. This motion was granted by Chief Justice Richard on January 5, 2004. The decision has now been rendered in the consolidated proceedings (see report at pages 9 to 13) and the commissioner will decide soon whether or not to proceed with this appeal.

The Information Commissioner of Canada v. The Executive Director of the Canadian Transportation Accident Investigation and Safety Board and NAV Canada, (T-465-01, T-650-02, T-888-02 and T-889-02) Federal Court (See Annual Report 2001-2002 p. 87, Annual Report 2000-2001 p. 116 and Annual Report 2002-2003 p. 88 for more details)

During the reporting year, the Information Commissioner’s motion for leave to amend the Notices of Application was granted. The Attorney General filed its evidence on the constitutional issue and the added respondent, NAV Canada, filed supplementary evidence. Cross-examinations were held in the fall of 2003 and the parties filed their respective memoranda in the following months. The proceeding will continue before the Federal Court and results will be reported in next year’s annual report.

The Information Commissioner of Canada v. The Minister of Industry Canada, (T-0053-04) Federal Court

This is an Application for Judicial Review under section 42 of the Access to Information Act of a refusal, by Statistics Canada, through the delegated authority of the Minister of Industry Canada, to release some returns from the 1911 Census.

On May 29, 2002, a citizen requested access to the 1911 Census records for two specific regions in Ontario. Arguing that the records are exempt from disclosure pursuant to sections 19 and 24 of the Act, which makes reference to section 17 of the Statistics Act, Statistics Canada refused disclosure. After investigating the resulting complaint, the Information Commissioner recommended disclosure of the requested records. Statistics Canada refused to follow the commissioner’s recommendation.

On January 12, 2003, the Information Commissioner of Canada filed an Application for Judicial Review of the decision to refuse access. During the month of February, the commissioner filed his affidavit evidence in support of the application.

1. Did the respondent err in relying on section 24 of the Act and section 17 of  the Statistics Act to refuse to disclose the Perth County, Ontario Census nominal returns for 1911?


2. Are the privacy interests in historical census records determined by paragraphs 19(2)(b) and (c) of the Access to Information Act, by paragraph 8(2)(j)  and subsection 8(3) of the Privacy Act and section 6 of the Privacy Regulations?

This proceeding will continue before the Federal Court, and results will be reported in next year’s annual report.

The Information Commissioner of Canada v. The Minister of Industry Canada, (T-0421-04) Federal Court

This is an Application for Judicial Review by the Information Commissioner under section 42 of the Access to Information Act of a refusal, by Statistics Canada, through the delegated authority of the Minister of Industry Canada, to release the 1911, 1921, 1931 and 1941 Census records. Statistics Canada relied on section 24 of the Act as well as section 17 of the Statistics Act to justify the refusal to disclose.

On November 2, 2001, a native claim researcher requested access to the 1911, 1921, 1931 and 1941 Census records for specific districts in Quebec and Ontario. Arguing that the records are exempt from disclosure pursuant to section 24 of the Act, which makes reference to section 17 of the Statistics Act, Statistics Canada refused disclosure. After investigating the resulting complaint, the Information Commissioner recommended disclosure of the requested records. Statistics Canada refused to follow the commissioner’s recommendation.

On February 26, 2004, the Information Commissioner filed an Application for Judicial Review of the decision to refuse access. During the month of February, the commissioner filed its affidavit evidence in support of the application.

1. Did the respondent err in relying on section 24 of the Act and section 17 of the Statistics Act to refuse disclosure of the Census returns?
2. To the extent that the information is subject to section 17 of the Statistics Act, did the respondent properly exercise his discretion under subsection 17(2) of the Statistics Act?
3. Are the 1911 Census records deemed to be publicly available pursuant to paragraph 19(2)(b) of the Act?
4.  Is access to the Census returns of 1911, 1921, 1931 and 1941 authorized pursuant to paragraph 19(2)(c) of the Act by reference to paragraph 8(2)(k) and subsection 8(3) of the Privacy Act and section 6 of the Privacy Regulations?

The proceeding will continue before the Federal Court, and results will be reported in next year’s annual report.