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A. Cases Completed

  1. Canada (Attorney General)
  2. v. H.J. Heinz Co. of Canada Ltd. and Canada (Information Commissioner)

    2006 SCC 13, Supreme Court of Canada, Majority Judgement: Deschamps J. (Binnie, Fish and Abella JJ.) Dissent: Bastarache J. (McLachlin C.J.C. and LeBel J.), April 21, 2006 (See Annual Report 2005-2006, p. 69 for more details)

    Nature of Proceedings

    This was an appeal brought by the Attorney General of Canada of a judgement of the Federal Court of Appeal, which upheld the decision of the Application Judge and allowed a third party, H.J. Heinz Co. (Heinz), to raise an exemption, other than section 20 (commercial confidentiality), in the context of a proceeding brought pursuant to section 44 of the Act. The Information Commissioner was an intervener before the Federal Court of Appeal and, again, before the Supreme Court of Canada.

    Factual Background

    On June 16, 2000, a request for information was made to the Canadian Food Inspection Agency (CFIA). Pursuant to section 27 of the Act, CFIA advised the third party, Heinz, of its intention to disclose information requested under the 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 Act. In its Notice of Application, the sole exemption raised by Heinz was the purported application of section 20 of the Act. 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 may 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.

    On appeal, Nadon J.A. refused to overturn the decision in Siemens, deciding that the decision was not "manifestly wrong" [para. 56]. He therefore dismissed the appeal.

    Issues Before the Court

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

    Findings

    The majority decision, in a 4:3 split, determined that a third party may raise the "personal information" exemption in the context of a proceeding commenced under section 44 of the Act. In reaching this decision, Justice Deschamps, for the majority, rejected both the Information Commissioner’s and the Attorney General’s arguments that the review mechanism in section 44 of the Act is limited to a review of a government institution’s decision to release information which the "third party" contends ought not to be released because it consists of "business information".

    The Information Commissioner’s and Attorney General’s position was based inter alia on the fact that the special notice given to third parties under section 27 of the Act arises only as a result of the possible application of subsection 20(1) to records intended to be released by the head of a government institution. It was argued that the scope of review in a section 44 proceeding ought to similarly be limited to the issue of whether records ought to be withheld based on subsection 20(1) of the Act. Moreover, as was pointed out by the Attorney General, to allow third parties to raise the section 19 exemption in a proceeding commenced under section 44 would afford greater rights to "third parties" receiving notice pertaining to the possible application of subsection 20(1), than parties who are not deemed "third parties" under the Act.

    Although Justice Deschamps acknowledged that "the right to notice accorded to third parties follows logically from the specific nature of the confidential business information exemption . . .", she held that the right to notice " . . . does not limit the right of review provided for in section 44" [para. 56]. She reasoned that, because sections 28, 44, or 51 of the Act do not explicitly state that a third party is precluded from raising extra-section 20 exemptions, a third party must be capable of raising other exemptions in a section 44 application for review. Justice Deschamps stated:

    "What matters is not how the reviewing court became aware of the government’s wrongful decision to disclose personal information, but the court’s ability to give meaning to the right to privacy. A reviewing court is in a position to prevent harm from being committed and the statutory scheme imposes no legal barrier to prevent the court from intervening" [para. 2].

    Stressing the mandatory nature of the subsection 19(1) exemption and the inadequacy of other avenues of challenging a government institution’s decision to disclose "personal information", the Court concluded that a section 44 proceeding is "the only direct access to the effective protection afforded by a reviewing court" [paras. 45 - 46]. Justice Deschamps held:

    "Where it has come to the attention of a third party that a government institution intends to disclose information which will violate the statutorily mandated, quasi-constitutional privacy rights of an individual, the third party must have the right to raise this concern upon judicial review. A contrary ruling would force individuals to wait until the personal information has been disclosed and the (potentially irreversible) harm done before looking to the Privacy Commissioner and the courts for a remedy" [para 63].

    In the dissenting opinion, Justice Bastarache noted that a section 44 proceeding constitutes the sole exception to a legislative scheme which establishes the Information Commissioner’s investigation as a requisite first step in a two-tiered level of independent review of government decisions concerning the disclosure of records requested under the Act [para. 80]. It is only in the context of a section 44 proceeding that ". . . a third party who has received notice that the government institution intends to disclose the record can apply directly to the court . . ." The notice, in turn, is based exclusively on the possibility that confidential business information [subsection 20(1) information] is contained in records intended to be disclosed: "[t]here is no notice provision prior to the disclosure of a requested record that might contain exempted personal information".

    Justice Bastarache’s interpretation of the scope of section 44 is based on a review of the Access to Information Act and Privacy Act as a whole. He states:

    "The structure of the Access Act and of the Privacy Act suggests that Parliament intended that the protection of personal information be assured exclusively by the Office of the Privacy Commissioner. Equally important is Parliament’s desire to have all judicial reviews under the Acts preceded by an impartial investigation conducted by the Information Commissioner. The only exception provided in the statutory scheme is where confidential business information potentially appears in the requested record" [para. 97].

    Although Justice Bastarache acknowledges that neither the Information Commissioner nor the Privacy Commissioner have the decision-making or remedial capacity to prevent the unlawful disclosure of a requested record (para. 104), he concluded that this did not warrant circumventing Parliament’s intent that judicial review of decisions to disclose records under the Act be limited to the application of third-party business information. As an aside, Justice Bastarache noted the possibility that a third party might be able to raise the section 19 exemption for personal information under section 18.1 of the Federal Courts Act.

    Judicial Outcome

    The appeal was dismissed with costs.

  3. Canada (Minister of Justice)
  4. v. Blank, the Attorney General for Ontario, the Advocates’ Society and Canada (Information Commissioner)

2006 SCC 39, Supreme Court of Canada, September 8, 2006 (See Annual Report 2005-2006, pp. 69-72 for more details)

Nature of Proceedings

This was an appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal in Blank v. Canada(Department of Justice), 2004 FCA 287.

Factual Background

The proceedings before the Supreme Court of Canada arose as a result of a refusal by the Minister of Justice (hereafter, "the Crown") of a request for records, pertaining to the Crown’s prosecution of regulatory charges laid against the access requester, Mr. Sheldon Blank, the owner and operator of a pulp and paper mill, and his company, Gateway Industries.

In 1995, the Crown had laid thirteen (13) charges against Mr. Blank and his company for regulatory offences under the Fisheries Act. These charges were subsequently quashed in 1997 and 2001. In 2002, the Crown laid new charges by way of indictment. However, these charges were stayed prior to trial, whereupon the Crown declared that it would no longer pursue the prosecution. As a result of the Crown’s prosecution, Mr. Blank and his company sued the federal government for damages for alleged fraud, conspiracy, perjury, and abuse of prosecutorial powers.

Mr. Blank, both in the penal proceedings and under the Access to Information Act, attempted to obtain all records pertaining to the prosecutions of himself and his company. In response, the Crown furnished only some of the requested information. The basis for the Crown’s refusal to disclose the records sought included a claim that the records were subject to "solicitor-client" privilege and therefore exempted under section 23 of the Act.

After a complaint to the Information Commissioner concerning the Crown’s response to his access requests, some of the withheld information was released to Mr. Blank. Further information, however, continued to be withheld, primarily based on the Crown’s continued contention that non-disclosure was justified under section 23 of the Act. The Information Commissioner recommended to the Crown that portions of these records also be released and, upon the Crown’s refusal to heed that recommendation, advised Mr. Blank that the Information Commissioner would, with his consent, pursue the matter in the Federal Court pursuant to section 42 of the Act. In the alternative, the Information Commissioner advised Mr. Blank of his right to seek judicial review of the Crown’s access refusal on his own behalf pursuant to section 41 of the legislation. Mr. Blank opted for the latter means of recourse. On November 8, 2000, he filed his Notice of Application for judicial review of the Crown’s access refusal pursuant to section 41.

The Federal Court upheld most of the claimed exemptions (see: Blank v. Canada(Department of Justice), 2003 FCT 462), yet ordered that documents claimed by the Crown to be subject to "litigation privilege" and therefore protected under section 23 of the Act should be released as the litigation to which the records related had ended. The Crown appealed this aspect of the Federal Court’s judgment.

On appeal, the Federal Court of Appeal was divided on the duration of litigation privilege. The majority, however, agreed with the Federal Court Judge’s decision. According to the majority, section 23 of the Act includes litigation privilege but that, unlike legal advice privilege, litigation privilege is of limited duration, expiring at the end of the litigation that gave rise to the privilege, "subject to the possibility of defining . . . litigation . . . broadly" ([2005] 1 F.C.R. 403, at para. 89). As the documents in issue had been created for the dominant purpose of a criminal prosecution which had subsequently ended, the majority determined that litigation privilege no longer applied to exempt the records from disclosure under section 23 of the Act. However, the dissenting Judge stated that, in his view, litigation privilege need not end with the termination of the litigation that gave rise to the privilege and that, in this instance, the privilege ought to have been upheld.

The Crown sought leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada. Upon being granted leave, the Attorney General of Ontario, the Advocates’ Society, and the Information Commissioner were granted intervener status before the Supreme Court.

Issues Before the Court

The narrow issue before the Court was whether documents once subject to litigation privilege remain privileged when the litigation ends.

The Court’s determination of this narrow issue hinged upon the Court’s consideration of the following preliminary issues:

    1. Does "solicitor-client privilege" encompass both legal advice privilege and litigation privilege?
    2. What is the distinction between legal advice privilege and litigation privilege?
    3. What is the scope and duration of litigation privilege?
    4. Did Parliament intend, when enacting section 23 of the Act, to extend the protection afforded to litigation privilege at common law?

Findings

The Majority’s Reasons for Judgment

  1. Does "solicitor-client privilege" encompass both legal advice privilege and litigation privilege and, if so, are they "branches" of the same privilege?

    Justice Fish, writing the reasons for judgment of the majority (on behalf of five (5) of seven (7) members of the Court), accepted the parties’ interpretation that "solicitor-client privilege" as a matter of statutory interpretation encompasses both legal advice privilege and litigation privilege, yet rejected the contention by the Federal Crown and, intervener, Attorney General of Ontario, that legal advice privilege and litigation privilege should be viewed as two "branches" of "the same tree". While, at an overarching level, both privileges facilitate "[t]he secure and effective administration of justice according to law" [para. 31], legal advice privilege and litigation privilege are based on different rationales. They are not, as argued by the Crown, premised on the common objective of promoting candour in the solicitor-client relationship. Instead, the majority, agreeing with the respondent, Mr. Blank, and the interveners, the Information Commissioner of Canada and the Advocates’ Society, determined that "legal advice privilege" and "litigation privilege" are distinct concepts and that, as a result, they do not warrant analogous protection.

  2. What is the distinction between legal advice privilege and litigation privilege?

    "Legal advice privilege", the majority explained, is a concept intended to promote the relationship between a solicitor and his/her client based on the notion that the effective administration of justice depends for its vitality on full, free, and frank communication between those who need legal advice and those who are best able to provide it. "Litigation privilege", in contrast, is intended to facilitate the adversarial trial process based on the notion that the efficacy of the adversarial process is advanced by ensuring that parties to litigation are afforded a "zone of privacy" within which they are left to investigate and prepare their case for trial without adversarial interference or fear of premature disclosure [paras. 26-28].

    The majority went on to recognize additional distinctions, pointed out by the Information Commissioner and the Advocates’ Society, between legal advice privilege and litigation privilege. Notably, for example, litigation privilege ". . . arises and operates even in the absence of a solicitor-client relationship; it applies indiscriminately to all litigations, whether or not they are represented by counsel" [para.32], and confidentiality, the sine qua non of legal advice privilege, is not an essential component.

    Having determined that legal advice privilege and litigation privilege are based on distinct rationales, the majority went on to reject the Crown’s contention that the two privileges must be afforded analogous protection [para. 33]. The majority made clear that jurisprudence that speaks of the primacy of solicitor-client privilege, its evolution from a rule of evidence to a rule of substantive law, and its near-absolute protection, including permanency, is limited to "legal advice privilege" and not "solicitor-client privilege" in general. Therefore, while [legal advice privilege] has been strengthened, reaffirmed and elevated in recent years, litigation privilege has been eroded by trends towards mutual and reciprocal disclosure which is the hallmark of the judicial process [para. 61].

  3. What is the scope and duration of litigation privilege and how does that compare to the scope and duration of legal advice privilege?

    The majority, agreeing with the position advanced by the respondent, the Information Commissioner, and the Advocates’ Society, held that "litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration" [para.37]. Rather, the majority explained, "[i]n each case, the duration and extent of the litigation privilege are circumscribed by its underlying purpose, namely the protection essential to the proper operation of the adversarial process" [para. 41].

    In most instances, the majority held, once the litigation ends, so too does the purpose of the privilege. Therefore, in general, litigation privilege will expire with the litigation of which it was born [para. 34]. Nonetheless, the majority did acknowledge the possibility that litigation may be defined "more broadly than the particular proceeding which gave rise to the claim" [para. 38]. Whether or not the privilege can extend beyond the litigation of which it was born will hinge on whether or not the privilege retains its purpose, namely "the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate" [para. 40]. The majority stated that examples of when "litigation" would be defined more broadly, include: ". . . separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or "juridical source"). . . [and] [p]roceedings that raise issues common to the initial action and share its essential purpose . . ." [para. 39].

    The majority went on to consider whether an extended definition of litigation privilege was warranted in the case at bar. The majority concluded that it did not. More specifically, the majority noted that the documents for which privilege was claimed were prepared for the dominant purpose of a criminal prosecution that had ended. The majority held that Mr. Blank’s subsequent civil action against the government in relation to the manner in which the government conducted the criminal prosecution sprung from a different juridical source and, in that sense, was unrelated to the litigation of which the privilege claimed was born [para. 43].

    As an aside, the majority noted that, in any event, "litigation privilege would not protect from disclosure evidence of the claimant party’s abuse of process or similar blameworthy conduct". A court, the majority held, may review documents claimed to be privileged where a prima facie actionable misconduct is shown in relation to the proceeding with respect to which the privilege is claimed [paras. 44-45].

    Also as an aside, the majority observed that, in the case at bar, the Crown had failed to disclose information to which Mr. Blank had been constitutionally guaranteed [paras. 55-56]. In doing so, the majority dismissed the Ontario Attorney General’s argument that litigation privilege is not waived in a civil proceeding when, in a preceding criminal case, documents "favourable to an accused" are disclosed in accordance with the "innocence at stake" exception. The majority stated that it would be ". . incongruous if the litigation privilege were found in civil proceedings to insulate the Crown from the disclosure it was bound but failed to provide in criminal proceedings that have ended" [para. 57].

    As for the scope of the privilege, in keeping with the modern trend favouring increased disclosure, the majority agreed with the Information Commissioner and the Advocates’ Society; litigation privilege should only attach to documents created for the dominant purpose of litigation [para. 59]. The majority, however, refrained from deciding whether documents gathered or copied, but not created, for the purpose of litigation could be equally protected [paras. 62-64].

  4. Did Parliament intend when enacting section 23 of the Act to extend the protection afforded at common law to litigation privilege claimed by the government as litigant?

Although, the majority did recognize that the purpose of litigation privilege within the context of section 23 of the Act must take into account the nature of much government litigation [para. 40], the majority rejected the contention by the Federal Crown and Attorney General of Ontario that the government’s status as a "recurring litigant" could justify a litigation privilege that outlives its common law equivalent [para. 46].

The majority noted that nothing in the Act suggests that this was Parliament’s intent [paras. 51-52]. Moreover, such an interpretation would not be in keeping with the scheme of the Act, nor would it be consonant with the permissive language of section 23 which promotes disclosure by encouraging heads of government institutions ". . . to refrain from invoking the privilege unless it is thought necessary to do so in the public interest. And it thus supports an interpretation that favours more government disclosure, not less" [para. 52].

Still, the majority noted that access to the government lawyer’s brief upon the conclusion of the subject proceeding would not be automatic because of the possibility that litigation may be defined "more broadly than the particular proceeding which gave rise to the claim" [para. 38]. Similarly, disclosure would not be uncontrolled in that many documents within a litigation file will be covered, not only by litigation privilege, but legal advice privilege and, therefore, "will remain clearly and forever privileged" [paras. 49-50].

The majority went on to observe that, although the protection afforded to litigation privilege, in practice, may prove less effective for the government than for private litigants because of the Act, i.e. because the government may be required to disclose information once the original proceedings have ended and related proceedings are neither pending nor apprehended, this, the majority held, "is a matter of legislative choice and not judicial policy" [para. 53].

The Minority Reasons

Justice Bastarache, writing on behalf of two members of the Court, concurred with the results of the majority judgment, agreeing that the Crown's claim of litigation privilege failed in the case at bar, because the privilege expired after the termination of the litigation giving rise to the claim of privilege [para. 74]. However, Justice Bastarache proposed to clarify the scope of section 23 by offering separate reasons.

Justice Bastarache clarified that the Act imposes a statutory duty on government institutions to disclose records subject to limited exceptions. As a result, Justice Bastarache reasoned that, faced with a request under the Act, the government cannot refuse to disclose records by claiming litigation privilege at common law [para. 68]. That said, Justice Bastarache went on to state that section 23 creates an exemption for records that are subject to "solicitor-client privilege" and that this must be interpreted as encompassing both legal advice privilege and litigation privilege [para. 69].

In contrast to the majority judgment, Justice Bastarache accepted the view that litigation privilege is a branch of solicitor-client privilege [paras. 70-71]. However, he observed that, unlike legal advice privilege, which stands against the world, litigation privilege is protection only against the adversary, and only until termination of the litigation [para. 72]. Thus, the effect of section 23 is that it enables a government institution to refuse disclosure, not only to an adversary, but to any requester, so long as the privilege is found to exist [para. 72].

Judicial Outcome

The Supreme Court of Canada dismissed the appeal. It was unanimously agreed that litigation privilege, unlike legal advice privilege, expires at the end of the litigation that gave rise to the privilege, subject to the possibility of defining "litigation" broadly.

  1. Canada (Information Commissioner)
  2. v. Canada (Canadian Transportation Accident Investigation and Safety Board), NAV Canada and Canada (Attorney General)

2006 FCA 157 (Court files: A-165-05, A-304-05), May 1, 2006 (See Annual Report 2005-2006, pp. 64-65 for more details)

Nature of Proceedings

This was an appeal of the Federal Court’s decision in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board et al.), [2006] 1 F.C.R. 605 wherein Justice Snider dismissed four (4) applications for judicial review commenced by the Information Commissioner pursuant to paragraph 42(1)(a) of the Act.

Factual Background

Access requests were made for recordings and/or transcripts of air traffic control communications (ATC communications) pertaining to four air occurrences that were the subject of distinct investigations and public reports by the Transportation Accident Investigation and Safety Board (TSB). These communications were recorded by NAV Canada but subsequently put under the control of the TSB.

The Executive Director of the TSB refused to disclose the requested ATC communications based on the purported application of section 19 of the Act (the "personal information" exemption). The Information Commissioner commenced four applications for judicial review of the Executive Director’s access refusals. NAV Canada intervened in the proceedings, arguing that the records ought to be exempted based on paragraph 20(1)(b) of the Act.

The applications were heard by the Federal Court on January 18, 2005, and, on March 18, 2005, Justice Snider rendered her decision. Here, Justice Snider dismissed the applications for review, ruling that the requested ATC communications were "personal information" exempted from disclosure under section 19 of the Act.

The Information Commissioner appealed the Federal Court’s decision.

Issues Before the Court

The issues before the Court were as follows:

  1. Did the Federal Court err when determining that the ATC communications are "personal information" within the meaning of section 3 of the Privacy Act and, therefore, exempted under subsection 19(1) of the Act?
  2. If ATC communications are not "personal information", are they, nonetheless, exempted from disclosure under paragraph 20(1)(b) of the Act?

Findings

  1. Did the Federal Court err when determining that the ATC communications are "personal information" within the meaning of section 3 of the Privacy Act and, therefore, exempted under subsection 19(1) of the Act?

    The Federal Court of Appeal began its analysis by considering the meaning of the opening words of the definition of "personal information" set out in section 3 of the Privacy Act. This definition stipulates that, in order to qualify as "personal information," the information must be both "about" an individual and also permit or lead to the possible identification of that individual.

    The Court held that the word "about", in context, must be ascribed a meaning that coincides with values underlying the notion of privacy. Citing a number of decisions rendered by the Supreme Court of Canada, the Federal Court of Appeal surmised that the notion of privacy connotes concepts of intimacy, identity, dignity, and integrity of the individual. These concepts, the Court stated, must be borne in mind when determining whether or not particular information is "about" an individual, as opposed to being "about" something else.

    The Federal Court of Appeal then considered the content of the ATC communications in issue and whether the subject matter of these communications engaged individuals’ rights to privacy. The Court observed that the content of the ATC communications is limited to the safety and navigation of aircraft, the general operation of the aircraft, and the exchange of messages on behalf of the public. This, the Court held, ". . . are not subjects that engage the right to privacy of individuals". As a result, the Court concluded that the ATC communications could not be said to be "about" an individual.

    The Court noted that the information contained in the records was of a professional non-personal nature. Although the Court acknowledged that it was possible that the information might permit or lead to the identification of a person and/or assist in a determination as to how an individual performed a task, the Court held that this possibility did not suffice to render the information "personal information". The possibility that the records, when combined with other information, might be used to evaluate an individual’s performance could not transform the communications into personal information when the information in and of itself had no personal content.

    Thus, the Federal Court of Appeal concluded that the ATC communications did not fit within the Privacy Act’s definition of "personal information" and were therefore not exempted under subsection 19(1) of the Act. Having so determined, the Court observed that it was not necessary to consider the discretion to release "personal information" set out in subsection 19(2) of the Act.

  2. Are the ATC communications exempted under subsection 20(1) of the Act?

Having rejected the application of subsection 19(1) of the Act, the Federal Court of Appeal then considered the alternative issue raised by NAV Canada, namely, the application of paragraph 20(1)(b) of the Act. In order to qualify for exemption under this provision, it must be established that: 1) the information is financial, commercial, scientific, or technical information; 2) the information is confidential; 3) the information is supplied to a government institution by a third party; and 4) the information has been treated consistently in a confidential manner by a third party.

Turning to the first of these criteria, the Court considered whether, as alleged by NAV Canada, the ATC communications could be deemed to be either "commercial" or "technical" in nature. The Court rejected NAV Canada’s contention that, simply because NAV Canada provides air navigation services for a fee, the information could be deemed "commercial" in nature. Instead, the Court reasoned that the term "commercial" requires that the information in itself pertain to trade (or commerce). Although the Court noted that portions of the ATC communication might qualify as "technical" in nature, there was no basis for characterizing the entire record in this manner.

The Court then considered whether the second requirement, that of confidentiality, could be met. To this end, the Court noted that NAV Canada bore the burden of persuasion that the ATC communications were, in fact, confidential. Moreover, the Court made clear that that confidentiality must be assessed on an objective standard.

Upon reviewing the evidence filed by NAV Canada on this issue, the Court determined that NAV Canada had failed to discharge its burden. More specifically, the Court held that NAV Canada had not established, on a balance of probabilities, that the records in issue were, objectively, confidential.

Thus, the Court determined that the first two criteria for establishing that the requested records warrant exemption under paragraph 20(1)(b) of the Act had not been met. The Federal Court of Appeal, therefore, concluded it was not necessary to consider whether NAV Canada could satisfy the further requirements (that the information was supplied by NAV Canada to the TSB and treated consistently in a confidential manner by NAV Canada) under paragraph 20(1)(b).

Judicial Outcome

The appeals were allowed. The Federal Court of Appeal set aside the Federal Court’s decision, which dismissed the applications for review, and ordered, instead, that the TSB disclose the ATC communications to the access requesters.

Action Taken

On June 30, 2006, the applicants, the Executive Director of the TSB and NAV Canada, filed an application for leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada. Leave to appeal was refused (Supreme Court file 31528, April 5, 2007).

  1. Canada (Information Commissioner)
  2. v. Canada (Minister of Transport)

T-55-05, Federal Court, Blais, J., September 15, 2006, (See Annual Report 2005-2006, pp. 65-66 for more details)

Nature of Proceeding

This was an application for review under section 42 of the Act in relation to the Minister of Transport’s refusal to disclose "an electronic copy of the CADORS (Civil Aviation Daily Occurrence Reporting System) database table(s)" being information requested under the Act.

Factual Background

On June 12, 2001, a request was made under the Act for access to "an electronic copy of the CADORS database table(s) which track(s) aviation occurrences; a paper printout of the first 50 records, a complete field list, and information on any codes needed to interpret data in the tables." CADORS is a national database consisting of approximately 36,000 safety reports of individual aviation "occurrences" and is compiled by Transport Canada, which receives these reports from a variety of sources, including NAV Canada, the Transportation Safety Board, and aerodromes.

On August 9, 2001, Transport Canada responded by providing the requester with a copy of the record layout which lists the fields of information found in the CADORS database, but, otherwise, refused to provide the requested records in their entirety. Initially, this access refusal was based on the contention that the database could not be severed and reproduced. Subsequently, during the course of the Information Commissioner’s investigation, Transport Canada acknowledged that the database could, in fact, be copied, and, if necessary, severed. Still, Transport Canada withheld 33 of the 51 fields of information which comprise the CADORS database based on subsection 19(1) of the Act (the "personal information" exemption).

Transport Canada conceded that the information in and of itself did not constitute personal information, yet maintained that the release of CADORS information would amount to disclosure contrary to subsection 19(1) of the Act because of what is referred to as the "mosaic-effect" (a concept used in relation to information pertaining to security and intelligence in the context of assessing a reasonable expectation of injury). Specifically, Transport Canada stated that it was possible that CADORS information might be linked with other information publicly available to reveal "personal information" concerning identifiable individuals.

The Information Commissioner, for his part, maintained that the information contained in the database pertained to aircraft and air occurrences, not individuals, such that section 19 of the Act did not apply. The Minister refused to accept the Information Commissioner’s recommendation that the requested records be disclosed. On January 14, 2005, the Information Commissioner of Canada filed an application for judicial review of the Minister’s access refusal.

After the Information Commissioner had filed his Memorandum of Fact and Law in support of the application for review, but before the oral hearing, the Minister of Transport released additional portions of the database to the access requester. This information consisted of data pertaining to air occurrences involving "commercially operated" aircraft. Thus, by the time of the oral hearing, the portions of the requested records that continued to be withheld consisted of thirty-three (33) electronic fields of information contained in CADORS reports that pertain to "air occurrences" in which the "Operator Type" field was either marked "Private" or contained no information. These reports included reports pertaining to "air occurrences" involving aircraft "privately" operated by corporations, businesses, organizations, government, and other entities, in addition to aircraft operated by individuals, as well as reports in which no aircraft were involved in the occurrence.

The oral hearing took place on February 9, 2006. At the close of oral arguments, the presiding Judge opined that a case pending before the Federal Court of Appeal (Canada (Information Commissioner) v. Canada (Canadian Transportation Accident and Investigation and Safety Board) et al. [hereafter, the NAV Canada case]), might impact upon the disposition of the issues in dispute. The Judge, therefore, adjourned the hearing until such time as the Federal Court of Appeal had rendered its decision in the NAV Canada case.

The Federal Court of Appeal rendered its decision in the NAV Canada case on June 2, 2006, whereupon, the Judge presiding over the CADORS case directed the parties to make supplementary submissions concerning the effect of the NAV Canada case on the issues raised in the application for review.

Issues Before the Court

At issue, therefore, was:

  1. What impact, if any, does the Federal Court of Appeal’s decision in the NAV Canada case have on the determination of whether the CADORS database, in its entirety, must be released under the Act?

The Information Commissioner’s Supplementary Submissions were filed on May 17, 2006. In these submissions, the Information Commissioner argued inter alia that the information in issue in the NAV Canada case was analogous to that in issue in the case at bar in that, in both instances, the requested information related to "air occurrences". As the Federal Court of Appeal had determined that information "about" air occurrences is not information "about" an individual, the Information Commissioner maintained that the CADORS information could not be exempted under subsection 19(1) of the Act.

The Information Commissioner also argued that the Federal Court of Appeal’s determination in the NAV Canada case equally addressed the Minister of Transport’s "mosaic effect" argument with respect to the CADORS database. To this end, the Information Commissioner pointed out that, in NAV Canada, the Federal Court of Appeal had rejected the contention that non-personal information pertaining to air occurrences could be transformed into "personal information" simply because it was possible that the information, when combined with other sources, might be used to identify an individual or to evaluate an individual’s performance with respect to air occurrences.

Thus, the Information Commissioner maintained that the Federal Court of Appeal’s ruling in the NAV Canada case had disposed of the issue of whether information about air occurrences could be exempted under section 19 of the Act. Having found that information about air occurrences is not information about an identifiable individual, even where a cross-reference with other information is possible, the Information Commissioner submitted that the Federal Court in the case at bar was bound by the higher Court’s ruling.

Transport Canada did not file responding submissions. Instead, the Court was advised of the Minister of Transport’s intention to release the CADORS database in its entirety to the access requester. Thereafter, the Court directed that the proceedings be postponed to allow the parties to conduct discussions with the view of settling the matters in dispute.

Findings

The records in issue in the application were released in their entirety to the access requester on September 14, 2006, whereupon the Information Commissioner agreed to discontinue the application for review. An order acknowledging the discontinuance of the application with details of settlement was issued by the Court on September 15, 2006.

  1. Canada (Information Commissioner)
  2. v. Canada (Minister of Environment)

2006 FC 1235 (Court File T-555-05), Federal Court, Kelen J., October 17, 2006 (See Annual Report 2005-2006, p. 66 for more details)

Nature of Proceedings

This was an application for judicial review of the refusal of the Minister of Environment Canada to disclose portions of the analysis section of a Memorandum to Cabinet, dated March 1995, regarding Methylcyclopentadienyl Manganese Tricarbonyl (MMT). This refusal was based on the discretionary exemptions from disclosure provided for under paragraphs 21(1)(a) and (b) of the Act, which deal with operations of government.

Factual Background

The original access to information request in this case was made on behalf of Ethyl Canada Inc. on September 16, 1997. It requested discussion papers on MMT presented to Cabinet. In response, the Minister identified four records, but denied Ethyl access to them on the grounds that they were Cabinet confidences and were therefore excluded from the Act.

Ethyl filed a complaint with the Information Commissioner, who investigated and recommended the Minister disclose the portion of the requested records that was termed "Analysis", as it fell within the scope of discussion paper material identified in paragraph 69(1)(b) of the Act.

The Minister rejected the Commissioner’s recommendation. The Commissioner applied to the Federal Court for a review of the Minister’s decision.

The case was reviewed by both the Federal Court (Canada (Information Commissioner) v. Canada (Minister of Environment) [2001] 3 F.C. 514) and the Federal Court of Appeal (Canada (Information Commissioner) v. Canada (Minister of the Environment), 2003 FCA 68), who both ruled that the analysis section of the Memorandum to Cabinet was a discussion paper as contemplated by paragraph 69(1)(b) of the Act. The Court of Appeal added that this analysis section had to be returned to the Minister so that he be given the opportunity to invoke any exemption that might apply to the information under the Act.

Issues Before the Court

  1. Did the disputed passages properly fall into the exemptions provided for in paragraphs 21(1)(a) and (b) of the Act ?

The analysis on this point was subdivided as follows:

1) The interplay between section 21 and section 69 of the Act

Section 21 of the Act provides for a discretionary exemption of "certain records containing advice provided to the government," while section 69 "provides that, as a general rule, the Act does not apply to Cabinet confidences" but carves out an exception to this rule for discussion papers, when the decision on the issue they pertain to has been made public or after four years have passed since a decision on the issue was taken but not made public.

Using the modern approach to statutory interpretation proposed by Driedger and adopted by the Supreme Court of Canada, Justice Kelen determined that "[b]oth a plain reading of sections 21 and 69 and a review of the Access Act’s legislative history" led him to dismiss the Information Commissioner’s argument that any records falling within the scope of the section 69 carve out could not fall under the exemption contemplated by section 21.

2) Applicability of paragraph 21(1)(a) of the Act: do the disputed passages contain "advice or recommendations"?

Justice Kelen turned to previous case law that determined the scope of this exemption and explained that "[h]aving reviewed the material, I conclude that some portions of the Disputed Passages are subject to the discretionary exemption under paragraph 21(1)(a)" [para. 53].

Justice Kelen reviewed the applicability of this "advice and recommendations" exemption to each of the paragraphs from the document for which the exemption had been claimed. In those portions of the record that he found "purely factual information" or "largely factual" information, as opposed to opinion, he ruled that the exemption could not apply. In one case, Justice Kelen described the withheld passage as containing "information that is entirely speculative in nature" that was "characterized more accurately…as explanatory than as an opinion on a policy matter" which he was not satisfied constituted "advice or recommendations" within the paragraph’s meaning [para. 61].

3) Applicability of paragraph 21(1)(b) of the Act: do the disputed passages contain an "account of consultations or deliberations"?

Noting that there had been "relatively little judicial consideration of paragraph 21(1)(b)" [para. 64], Justice Kelen was guided by the interpretive comments in one case and the interpretation suggested by a Treasury Board Manual on Access to Information Policy and Guidelines. He agreed "that the terms ‘account’, ‘consultation’ and ‘deliberations’ should be given their ordinary and usual meaning as reflected in the Treasury Board Manual". He determined that "[i]t follow[ed] from the definitions above that factual information must generally be excluded from the scope of paragraph 21(1)(b)" and concluded accordingly that the portion of the disputed passages that he had previously identified as containing largely factual information could not be exempt under paragraph 21(1)(b) [paras. 67-68].

Recognizing that "[i]n the context of a Memorandum to Cabinet, it is apparent that there may be considerable overlap between the scope of records covered by each of paragraphs 21(1)(a) and (b)," Justice Kelen was satisfied that, in this case, "the portions of the Disputed Passages that [he] ha[d] identified as falling within the scope of paragraph 21(1)(a) are also exempt under paragraph 21(1)(b)" [para.68].

He concluded that the section 21 exemptions applied to a portion of, but not all, the passages for which they had been claimed.

  1. Did the Minister lawfully exercise his discretion to refuse to disclose the disputed passages to which the section 21 exemptions applied?

Justice Kelen reiterated that "…the Minister bears the burden of satisfying this Court that the exercise of discretion was reasonable" [para.70].

It was apparent to Justice Kelen from the record that the Minister’s refusal to release the disputed passages was "primarily because the MMT issue remained an active policy file for the government." The material filed did not disclose any further reasons for the Minister’s refusal to release the disputed passages. He added that "[i]n conducting the requisite balancing of interests for and against disclosure, the Minister’s designate considered the ‘active’ status of the MMT file as the overriding factor in refusing disclosure" [paras. 73 and 75].

Turning to the case law on the matter, Justice Kelen concluded that it "addresses the need for the Minister to consider the public interest for and against disclosure and weigh these competing interests with the purposes of the Act in mind" [para. 76].

In this case, Justice Kelen found that "[t]he confidential cross-examination of the Deputy Minister [did] not provide any rationale for non-disclosure in relation to the public interest" except that MMT was an active file. It was unclear whether the Deputy Minister had "appreciated the principles relevant to her exercise of discretion" that is, whether disclosure was possible without impairing the effectiveness of government [para. 79].

He went on to make the following finding:

"In scrutinizing the Minister’s ‘weighing’ process on a standard of reasonableness, I find that there are insufficient reasons provided in support of the Minister’s refusal to disclose. In my view, the Deputy Minister’s analysis was somewhat capricious. Portions continued to be released even after the Deputy Minister determined disclosure would impair government action despite no appreciable change in circumstances. As well, much of what the Deputy Minister withheld based on impairment concerns do not, in this analysis, fall under section 21 in any event."

Justice Kelen also pointed out he had not been shown any evidence supporting the Minister’s decision that the release of the disputed passage would compromise future government action on the MMT issue [para. 81].

The Minister’s decision to withhold the disputed passages could not "…withstand a probing examination" and was "unreasonable in the circumstances" [para. 82].

Findings

The application was allowed.

The Court ordered the Minister to disclose to the requestor the portions of the disputed passages which were not subject to the section 21 discretionary exemptions. For those portions to which section 21 did apply, the Court ordered their return to the Minister to re-determine with reasons whether disclosure to the requestor was warranted, having regard to the public interest in favour of releasing information and in protection the internal processes for effective government.

The Minister appealed the decision to the Federal Court of Appeal, and the Information Commissioner filed a cross-appeal.

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