Annual Report: 2004-2005

The Information Commissioner of Canada v. Transportation Accident Investigation and Safety Board, Nav Canada and the Attorney General of Canada, 2005 FC 384, Court files T-465-01, T-888-02, T-889-02, T-650-02, Snider J., March 18, 2005

There were four (4) applications for judicial review brought pursuant to paragraph 42(1)(a) of the Access to Information Act (the "ATIA").

The Information Commissioner sought judicial review of the decisions of the Executive Director of the Canadian Transportation Accident Investigation and Safety Board (hereinafter, the "TSB") to refuse to disclose requested records. In addition, the Information Commissioner sought an order declaring that subsection 9(2) of the Radiocommunication Act, R.S.C. 1985, c. R-2, infringes paragraph 2(b) of the Canadian Charter of Rights and Freedoms.

The records at issue consist of tapes and transcripts of communications between air traffic control and aircraft personnel ("ATC communications") with respect to the provision of aeronautical services in relation to four separate airplane collisions or crashes, namely the Clarenville Occurrence (T-465-01), the Penticton Occurrence (T-650-02), the Fredericton Occurrence (T-888-02), and the St. John’s Occurrence (T-889-02). ATC communications are merely an exchange of information related to the provision of aeronautical services.

In each case, TSB maintained the position that ATC communications are personal information within the meaning of subsection 19(1) of the ATIA and that disclosure of the ATC communications is not warranted under subsection 19(2) of the ATIA. Nav Canada intervened in these applications to raise and argue third-party exemptions pursuant to paragraphs 20(1)(b) and (d) of the Act. More specifically, Nav Canada argued that the ATC communications either fit the criteria in paragraph 20(1)(b), either as commercial or technical information, or are records the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

The issues as defined by the court are as follows:

1. Do ATC communications constitute "personal information" as defined in section 3 of the Privacy Act, thus preventing disclosure under subsection 19(1) of the ATIA?

2. Did the TSB err in determining that disclosure of the ATC communications was not warranted by subsection 19(2) of the ATIA?

3. Does subsection 20(1) of the ATIA prohibit the disclosure of ATC communications?

4. Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to section 25 of the ATIA?

5. Does subsection 9(2) of the Radiocommunication Act infringe paragraph 2(b) of the Charter and, if so, is such an infringement justified under section 1 of the Charter?

The court refused to determine the constitutional issue and did not address the section 20 exemption. The court found against the Information Commissioner on the remaining issues. A summary of the reasons is available on request or at www.infocom.gc.ca.

The four (4) applications for review were dismissed.

The Information Commissioner is appealing Madam Justice Snider’s decision.

The Attorney General of Canada et al. v. Information Commissioner of Canada, Court files T-984-04 to T-990-04, T-992-04 to T-1002-04

These proceedings involved eighteen (18) applications for judicial review, brought by the Attorney General of Canada and various government officials (hereinafter, "the government"), against the Information Commissioner, under section 18.1 of the Federal Courts Act, for an order, inter alia, declaring that the Information Commissioner (and/or his delegate) lacks jurisdiction to make certain confidential orders, and quashing those confidentiality orders issued.

The within applications for review have their background in that portion of the proceedings adjudicated by the Federal Court in Canada (Attorney General et al.) v. Canada (Information Commissioner) 2004 FC 431, on the issue of the Information Commissioner’s jurisdiction to impose confidentiality orders on witnesses appearing before the Information Commissioner’s delegate during the course of investigations carried out under the ATIA (the Group B – "Confidentiality Order Applications"). As reported in the 2003-04 annual report of the Information Commissioner, at pages 9 –13, on this issue, Justice Dawson held that the imposition of confidentiality orders is a procedure which the commissioner may follow when exercising his power to compel persons to give evidence. Yet, Justice Dawson held that the particular orders issued in that case were overly broad, in that they went further than was reasonably necessary in order to achieve the commissioner’s objects and therefore infringed upon the witnesses’ rights to freedom of expression enshrined in paragraph 2(b) of the Canadian Charter of Rights and Freedom.

In accordance with Justice Dawson’s ruling, the Information Commissioner, on April 23, 2004, issued new confidentiality orders to: Bruce Hartley, Art Eggleton, Emechete Onuoha, Merribeth Morris, Randy Mylyk, Sue Ronald, Mel Cappe, Judith Mooney and George Young. These confidentiality orders were more limited in scope.

On May 20, 2004, the Attorney General of Canada and those witnesses to whom confidentiality orders had been reissued, filed some 18 applications for judicial review against the Information Commissioner seeking to have the new confidentiality orders quashed.

By July 22, 2004, the Office of the Information Commissioner had completed the fact-gathering phase of his investigations into complaints arising from requests for the (former) Prime Minister’s agendas; the (former) Minister of Transport’s agendas; and records pertaining to the M5. The Information Commissioner’s delegate therefore terminated the confidentiality orders issued to the above-noted witnesses.

Thereafter, on August 19, 2004, the Attorney General of Canada and witness applicants discontinued the 18 judicial review applications against the Information Commissioner on the basis that the applications were moot.

The Attorney General of Canada et al. v. Information Commissioner of Canada, Court files T-589-04 and T-1076-04

This was an application for judicial review of the decision of the Information Commissioner’s delegate to issue a confidentiality order binding on legal counsel for the National Archivist and the Chief Statistician.

The Information Commissioner received some 90 complaints by requesters who had sought access to the 1911 Census of Canada returns. Statistics Canada had refused to disclose the records on the ground that they were exempt pursuant to section 24 of the Access to Information Act and section 17 of the Statistics Act. In the course of carrying out his investigation, the Deputy Information Commissioner received oral testimony from both the National Archivist and the Chief Statistician. The two witnesses appeared before the Deputy Information Commissioner accompanied by counsel who also represented the Attorney General of Canada. The Deputy Information Commissioner requested that counsel sign an undertaking to keep the questions asked, answers given, and exhibits used during the interview confidential except with the client’s authorization. The purpose of the undertaking was to give the witnesses the opportunity to give evidence in private and out of the presence of their superiors. Counsel signed the undertaking.

The Attorney General of Canada then brought an application for judicial review, seeking declarations that the Information Commissioner’s delegate erred in the exercise of his discretion to issue the confidentiality orders, and a declaration that the Information Commissioner’s delegate exceeded his jurisdiction in seeking to obtain undertakings from counsel.

The Information Commissioner subsequently reported to the Minister of Industry (the minister responsible for Statistics Canada) the results of his investigation into the 90 complaints. Given that the report referred extensively to the testimony of the National Archivist and the Chief Statistician, the Deputy Information Commissioner was of the view that the two confidentiality orders were no longer necessary. Consequently, counsel was released from the undertakings in the confidentiality orders. As a result, the Attorney General discontinued the judicial review applications.

Sheldon Blank v. The Information Commissioner of Canada, T-2324-03, Federal Court, Layden-Stevenson, J., May 27, 2004 (see annual report 2003-04, p. 59 for further details)

The applicant, Sheldon Blank, brought an application for a mandamus order on December 9, 2003, asking that the Information Commissioner be required to issue his report to the applicant pursuant to section 37 of the Access to Information Act. The applicant was of the view that his complaint had not been investigated and reported on in a timely manner.

Before the matter was heard, Mr. Blank was sent a report of the results of the commissioner’s investigation.

The application was dismissed by Madam Justice Layden-Stevenson on May 27, 2004, as being moot.

Sheldon Blank v. The Information Commissioner of Canada, Court file T-1623-04 Federal Court, O’Reilly, J., March 1, 2005

This was an application by the Information Commissioner to strike the applicant’s application for an order in the nature of mandamus on grounds of mootness.

The applicant, Sheldon Blank, brought an application for a mandamus order in an effort to require the Information Commissioner to issue his report to the applicant pursuant to section 37 of the Access to Information Act. The applicant submits that his complaint had not been reported on in a timely manner. The Information Commissioner supplied the applicant with that report on February 15, 2004, rendering the application for mandamus moot and brought an application to strike on grounds of mootness. The applicant urged the court to hear and decide his application nonetheless.

Should the court exercise its discretion to hear a matter that has become moot?

The court’s reasons are summarized at www.infocom.gc.ca.

The Information Commissioner’s motion to strike was allowed without costs.