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Crown-Indigenous Relations and Northern Affairs Canada (Re), 2025 OIC 42

Date: 2025-08-01
OIC file number: 5823-00326
Access request number: A-2022-00167 / MN

Summary

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC had improperly withheld information under paragraph 20(1)(b) (confidential third party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), and section 23 (solicitor-client and litigation privilege) of the Access to Information Act. This was in response to an access request for the agreement, land claim settlement signed in the year 2000 between the federal Canadian government and the Squamish band.

Neither CIRNAC nor the third party showed that the information met the requirements of the exemptions - in particular how there was a clear and direct connection between the disclosure of any specific information and a risk of harm, that the information could result in a reasonable expectation of interference with negotiations, or that privilege applies. The Information Commissioner ordered CIRNAC to disclose the records in their entirety. CIRNAC gave notice to the Commissioner that it would not be disclosing the records.

Complaint

[1]        The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld information under paragraph 20(1)(b) (confidential third party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act. This was in response to an access request for the “agreement, land claim settlement signed in the year 2000 between the federal Canadian government and the Squamish band”.

[2]        The allegation falls within paragraph 30(1)(a) of the Act.

Investigation

[3]        When an institution withholds information, including information related to third parties, the third parties and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]        The Office of the Information Commissioner (OIC) sought representations from both the Squamish Nation (the third party) and CIRNAC pursuant to section 35 of the Act. While CIRNAC decided to no longer rely on paragraph 20(1)(b) to withhold information, they continue to maintain that the entirety of the responsive records are properly withheld under paragraph 20(1)(c) and section 23. A response was not received from the third party.

[5]        The OIC also notified the third party pursuant to subsection 36.3(1) of my intention to order CIRNAC to disclose the information at issue. The third party responded, indicating that they remain opposed to the disclosure of the information. Further, the Squamish Nation’s position is that “the settlement agreement is exempted under ss. 20(1)(b), 20(1)(c), and 20(1)(d) of the Access to Information Act as well as common law settlement privilege”. The third party did not further elaborate on its position.

Paragraph 20(1)(c): financial impact on a third party

[6]        Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[7]        To claim this exemption with regard to financial impact on a third party, institutions must show the following:

  • Disclosing the information could result in material financial loss or gain to the third party.
  • There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[8]        To claim this exemption with regard to competitive position, institutions must show the following:

  • Disclosing the information could injure the competitive position of the third party.
  • There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[9]        When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

[10]      In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

  • disclosure of the information would be in the public interest; and
  • the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[11]      However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[12]      CIRNAC maintains their application of paragraph 20(1)(c), concurrently with section 23, to withhold the entirety of the records.

[13]      It is generally accepted that publicly available information does not meet the requirements for exemption under section 20, either as a class of documents or under a harms test, and would require strong evidence that the information in the public domain would not be used (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 208-209).

Section 23: litigation privilege

[21]      Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[22]      To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

  • The information consists of communication between a lawyer or notary and his or her client.
  • That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
  • The parties intend the communication and advice to remain confidential.

[23]      To claim this exemption with regard to litigation, institutions must show the following:

  • The information was prepared or gathered for the dominant purpose of litigation.
  • The litigation either is in progress or is reasonably expected to occur.

[24]      Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[25]      When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[26]      CIRNAC maintains their application of section 23, concurrently with paragraph 20(1)(c), to withhold the entirety of the records.

[32]      CIRNAC also argued that there is pending litigation before the court concerning the records, associated with access request ISC-A-2021-00059 (“ISC litigation”). For the same reasons as above, I also cannot accept that the ISC litigation is a “related litigation” for which litigation privilege applies.

[33]      The ISC litigation was commenced in 2024 and relates to an access to information proceeding while the settlement agreement was reached in 2000 and settled multiple claims made by the Squamish Nation relating to reserve-based claims and other Indian Act related claims against the federal government. The two proceedings spring from a different juridical source, involve different parties and legal issues, and for those reasons they are unrelated. As the two proceedings do not raise common issues or share an essential purpose, the privilege does not apply (Blank, ibid, at para 39). 

[34]      Furthermore, the ISC litigation commenced in 2024, as a result of an investigation completed by the OIC, was nowhere near in progress or reasonably expected to occur when the records were created or prepared. I cannot accept that the document was gathered to “prepare the case for trial” or relate to the “zone of privacy” which the privilege is meant to protect.  CIRNAC has not provided any other representations which have convinced me that litigation privilege or section 23 could apply in the circumstance. Consequently, I cannot accept that the record was prepared or gathered for the dominant purpose related to or in contemplation of the ISC litigation.  Finally, even if litigation privilege could at one point have applied to any portions of the records at issue, the fact that the records were shared between opposing parties and, in some instances, filed publicly with the Court, would implicitly waive any prospective privilege claimed.

Outcome

[36]      The complaint is well founded because CIRNAC did not properly apply paragraph 20(1)(b), paragraph 21(1)(c), or section 23 when responding to the access request.

Order

I order the Minister of Crown-Indigenous Relations to disclose the records in their entirety.

Initial report and notice from institution

On June 25, 2025, I issued my initial report to the Minister of Crown-Indigenous Relations setting out my order.

On July 24, 2025, the Minister gave me notice that she would not be implementing the order. The Minister represented that while they had taken the OIC’s perspective into consideration, the disclosure of this information, which was submitted to Canada in confidence during the comprehensive land claims assessment process, will have significant adverse impacts on Canada’s relationship with the Squamish Nation and CIRNAC’s ability to conduct confidential and without-prejudice discussions; that releasing this information will indicate to the Squamish Nation that it cannot trust that the information it shares with Canada, in confidence, will be treated as such; and that CIRNAC consulted with the Squamish Nation, and it has stated that its documents are confidential, relate to land claims, and cannot be released. CIRNAC represented that they maintain their position in withholding records.

I remind the Minister that, if she does not plan to implement my order, she must apply to the Federal Court for a review by the deadline set out below.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review.

Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.

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