Annual Report: 2004-2005

The Attorney General of Canada v. H.J. Heinz Co. of Canada Ltd. and The Information Commissioner of Canada 2004 FCA 171, T-161-03, Federal Court of Appeal, Desjardins J.A., Nadon J.A., Pelletier J.A., reasons for judgment by Nadon J.A., April 30, 2004

This was an appeal brought by the Attorney General of a decision of the Application Judge which allowed a third party, Heinz, to raise an exemption other than section 20 in the context of a proceeding brought pursuant to section 44 of the Access to Information Act. The Information Commissioner sought and obtained intervenor status for the purpose of the hearing of the appeal.

On June 16, 2000, a request for information was made to the Canadian Food Inspection Agency (hereinafter "CFIA"). Pursuant to section 27 of the ATIA, CFIA advised the third party, Heinz, of its intention to disclose information requested under the Access to Information Act and, after receiving representations from Heinz, informed Heinz of its intention to disclose requested records, subject to certain redactions.

In turn, Heinz applied for judicial review of CFIA’s decision to release the requested records pursuant to section 44 of the ATIA. In its notice of application, the sole exemption raised by Heinz was the purported application of section 20 of the ATIA. Subsequently, and after obtaining a broad confidentiality order, Heinz made written and oral arguments raising, in addition to section 20, the personal information exemption found at section 19.

The Application Judge concluded that portions of the records intended to be disclosed be redacted based on subsection 20(1) of the Act. However, more notable is the Application Judge’s conclusion that a third party can invoke section 19 as a basis for refusal within the context of a section 44 proceeding. In reaching this conclusion, the Application Judge reasoned that the decision in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 575 (F.C.A.) was binding.

At issue is whether a third party, within the meaning of the Access to Information Act, may raise an exemption other than subsection 20(1) within the context of section 44 application for judicial review.

Likewise, at issue is a novel argument raised at the hearing of the appeal, namely that the Federal Court of appeal is bound by the principle of stare decisis to its previous ruling in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 575 (F.C.A.).

See the summary of reasons at www.infocom.gc.ca.

The Court of Appeal dismissed the Attorney General’s appeal with costs.

The Attorney General of Canada has sought and successfully obtained leave to appeal to the Supreme Court of Canada on December 17, 2004 (SCC file 30417).

The Information Commissioner has been granted leave to intervene in this appeal.