Crown-Indigenous Relations and Northern Affairs Canada (Re), 2026 OIC 11

Date: 2026-01-27
OIC file number: 5824-00643
Access request number: A-2023-00225/AK

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 Nation.

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 in response to an access request for a settlement agreement between Squamish Nation and the Federal Government from 2000. This agreement concerned a claim made by Squamish Nation from 1977, seeking compensation for the wrongful taking of the lands at Kitsilano Point in 1913. The claim was settled in 2000 with the Federal Government paying Squamish Nation $92.5 million (“Settlement Agreement” or “Agreement”).

[2]The allegation falls under 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 third party, the Squamish Nation and CIRNAC pursuant to section 35 of the Act. CIRNAC maintained that the responsive records, in their entirety, are properly withheld under paragraph 20(1)(b), paragraph 20(1)(c) and section 23, and, during the investigation, decided also to rely on paragraph 20(1)(d) (negotiations by a third party) and paragraph 18(b) (competitive position of government institutions or negotiations by government institutions) to withhold the information. The Squamish Nation’s position was that the information should continue to be exempt under paragraph 20(1)(b), paragraph 20(1)(c) and paragraph 20(1)(d).

[5]The OIC also notified the Squamish Nation pursuant to subsection 36.3(1) of my intention to order CIRNAC to disclose the information at issue. The Squamish Nation responded on August 1, 2025, indicating that it remains 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 Squamish Nation did not further elaborate on its position.

Paragraph 18(b): competitive position of government institutions, negotiations by government institutions

[6]Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.

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

Disclosing the information could injure the competitive position of a government institution.
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 contractual or other negotiations, institutions must show the following:

Contractual or other negotiations are under way or will be conducted in the future.
Disclosing the information could interfere with the negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[9]When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[10]CIRNAC has applied paragraph 18(b), concurrent with paragraph 21(1)(b), paragraph 20(1)(c), paragraph 20(1)(d), and section 23, to withhold the entirety of the records. CIRNAC did not apply paragraph 18(b) when it originally responded to the access request but invoked it during the course of the investigation.

[11]CIRNAC represented that should these records be released, “Canada may have other third parties engage in litigation for lands disclosed in the settlement agreement that Squamish Nation is currently not pursuing at this time. Canada’s negotiations may be jeopardized by the fact the third parties may have a negotiation advantage or other third parties feeling mistrust of Canada."

[12]CIRNAC has only alluded to the mere possibility that contractual or other negotiations may be conducted in the future, providing no concrete representations to show that these contractual or other negotiations are under way or will be conducted in the future.

[13]The word “interference” in paragraph 18(b), which uses the same wording as paragraph 20(1)(d), denotes an “obstruction” or “thwarting” of the negotiations (See, for example: Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), 1990 CanLII 8108 (FCA) (“Saint John Shipbuilding”); Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue), 2003 FC 1037, at para. 133). Heightened competition flowing from disclosure is not enough (See, for example: Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42). The courts have established that paragraph 20(1)(d) must refer to an obstruction to negotiations rather than merely the heightening of competition which might flow from disclosure (See Société Gamma Inc. v. Canada (Secretary of State) (1994)). CIRNAC’s representations did not convince me that the release of the information would result in an obstruction of negotiation by government institutions.

[14]The Supreme Court has established that the accepted formulation for alleged harm is “reasonable expectation of probable harm”. Parties must demonstrate a clear and direct link between the disclosure of the information at issue and a risk of harm that goes well beyond mere possibility, although risk need not be established on a balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras 194-197).

[15]CIRNAC’s submissions do not demonstrate how disclosure of the information at issue could reasonably be expected to interfere or impede negotiations for lands in the future. Furthermore, CIRNAC’s representations do not demonstrate how disclosure of the information in question would likely, i.e. beyond a mere possibility, allow an actual or potential third party to harm its competitive position. Indeed, the harm alleged seems to me to be speculative in nature.

[16]I conclude that the information does not meet the requirements of paragraph 18(b). Consequently, there is no need to examine the issue of discretion.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[17]Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[18]To claim this exemption, institutions must show the following:

The information is financial, commercial, scientific or technical.
The information is confidential.
The third party supplied the information to a government institution.
The third party has consistently treated the information as confidential.

[19]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.

[20]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.

[21]However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(b) 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?

[22]CIRNAC has applied paragraph 20(1)(b), concurrent with paragraph 18(b), paragraph 20(1)(c), paragraph 20(1)(d), and section 23, to withhold the entirety of the records.

[23]While CIRNAC represents that “technically, a settlement agreement contains financial, commercial and technical information about the lands, monies and concessions of the third party”, no representations were provided to demonstrate that all of the withheld information falls within the ordinary meaning of the terms “financial”, “commercial”, “scientific”, or “technical” (Merck Frosst Canada Ltd. V. Canada (Health), 2012 SCC3). While there are small portions of information within the agreement that appear to constitute financial information, such the settlement amount which has already been disclosed by the Minister, most of the information does not meet this requirement. The fact that a record was created within a context that may have financial or commercial implications is insufficient to establish that the entire record contains information that is financial or commercial under paragraph 20(1)(b) of the Act (Appleton & Associates v. Canada (Clerk of the Privy Council Office), 2007 FC 640, para. 26).

[24]The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

the content of the record is not available from sources otherwise accessible by the public or obtainable by observation or independent study by a member of the public acting on their own;
the information originates and is communicated in circumstances giving rise to a reasonable expectation of confidence that it will not be disclosed;
and the information, whether provided by law or supplied voluntarily, be communicated in the context of a relationship which is either a fiduciary relationship or one that is not contrary to the public interest, and which will be fostered for the public benefit by confidential communication. (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133; Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157, para. 72; Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.)).

[25]During the investigation, the OIC noted that the Settlement Agreement consists of information that is, to an extent, in the public domain. More specifically, the then department of Indigenous and Northern Affairs Canada (INAC) made public the basis upon which the settlement was reached, including the specific settlement amount agreed to and some details of the claims resolved (see Press Release and backgrounder (June 2000).

[26]Regarding the first part of the confidentiality test, while the records in their entirety do not appear to be publicly available, as noted above, information about the specific settlement amount and details of the claims resolved are available from sources accessible to the public. While CIRNAC reiterated that not all of the information was in the public domain, they failed to address how the exemption applied to information that is publicly available.

[27]Regarding the second part of the confidentiality test, CIRNAC argues that the agreement “was created as a negotiation between the government and Squamish Nation” and that “the information contained within is a negotiation process … where Squamish Nation has provided the information contained in the records in confidence as part of the settlement process.” It is unclear whether CIRNAC is suggesting that Agreement in its entirety reflects without prejudice communication and therefore protected by settlement privilege. CIRNAC “assumed that the supply of information took traditional routes such as meeting and information packages sent between the two parties” but provided no representations establishing that the Agreement contains information that is protected by settlement privilege or that it was originated with and was communicated with, a reasonable expectation of confidence that it not be disclosed. In any event, CIRNAC’s assumption “that the supply of information took traditional routes” is insufficient to stablish the three part test that settlement privilege applies and/or establish that it was supplied under circumstances giving rise to a reasonable expectation of confidence (see Appleton, para 24 and (Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), [1989] 2 F.C. 480).

[28]Furthermore, it is difficult to reconcile that the parties had a reasonable expectation of confidentiality or that the privilege was not waived, given the INAC’s press release and backgrounder.

[29]Finally, regarding the third part of the confidentiality test, CIRNAC did not provide sufficient evidence to confirm that the information was communicated to the government within a relationship that is either fiduciary or not contrary to the public interest and that will be fostered for the public benefit by confidential communication.

[30]The third requirement of paragraph 20(1)(b) is that the third party supplied the information to a government institution. The settlement agreement was created as a negotiation between the government and the Squamish Nation, and as such it is unclear how it could be considered to be supplied by the Squamish Nation. The case law under the Act demonstrates that negotiated terms do not constitute information that is supplied by a third party (Canada Post Corp. v. National Capital Commission, 2002 FCT 700, para. 14; see also: Halifax Developments Ltd. v. Minister of Public Works, (1994) FCJ No. 2035 (QL) (F.C.T.D.).

[31]The fourth requirement of paragraph 20(1)(b) is that the third party has consistently treated the information as confidential. Again, while CIRNAC repeatedly stated that the information is confidential, no representations were provided to indicate that the information has consistently been treated as confidential by the Squamish Nation. A statement that the information was consistently treated as confidential is generally insufficient to meet this requirement (Canada (Information Commissioner) v. Canada (Atlantic Canada Opportunities Agency) (1999), 250 N.R. 314 (FCA) In order to meet this requirement, the Federal Court held that third parties were required to provide evidence showing “careful consistent measures to restrict access to the information” (Canada post v. National Capital Commission, 2002 F.C.J. no 982, at paras 11-14.) Neither CIRNAC nor Squamish Nation provided any representations showing how Squamish Nation consistently treated the Settlement Agreement as confidential including any measures that were taken by Squamish Nation to ensure that the confidentiality was maintained by its members.

[32]In light of the above, I conclude that none of the withheld information meets all four requirements for exemption pursuant to paragraph 20(1)(b).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[33]I conclude that the circumstances set out in subsections 20(5) and 20(6) did not exist when CIRNAC responded to the access request. Consequently, there is no need to examine the issue of discretion.

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

[34]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.

[35]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.

[36]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.

[37]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.

[38]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.

[39]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?

[40]CIRNAC has applied paragraph 20(1)(c), concurrent with paragraph 18(b), paragraph 20(1)(b), paragraph 20(1)(d), and section 23, to withhold the entirety of the records.

[41]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).

[42]During the course of its investigation, the OIC confirmed that the settlement agreement consists of information that is, to a significant extent, in the public domain. More specifically, INAC made public the basis upon which the settlement was reached, including the specific settlement amount agreed to and some details of the claims resolved (see Press release and backgrounder (June 2000)).

[43]Notwithstanding the public availability of much of the information at issue, CIRNAC maintains that because the records contain information that is not public, disclosing the records could reasonably be expected to result in a harm described in paragraph 20(1)(c).

[44]While I accept that the entirety of the responsive records, or the information contained therein, may not be public, neither CIRNAC nor the Squamish Nation has shown how any of the information within the responsive records could reasonably be expected to result in a harm described in paragraph 20(1)(c) if disclosed. CIRNAC did not address the publicly available information. CIRNAC referred in general terms to non-public information pertaining to a Trust Agreement, Canada’s relief from certain fiduciary obligations, and conditions precedent agreed to by the Squamish Nation, without identifying which information, if disclosed could reasonably be expected to result in harm. It went on to assert that other parties will use these concessions in current and future negotiations, thereby harming Squamish Nation’s competitive position, resulting in delays, loss of money due to potential lost revenues and increased legal and other fees. CIRNAC offered no cogent explanation of how any particular information in the records at issue could have such an effect. It did not identify how any of the particular negotiations could reasonably be expected to be impacted by disclosure of any of the information at issue.

[45]As neither CIRNAC nor the Squamish Nation provided any clear and direct connection between the disclosure of any specific information and a risk of harm described in paragraph 20(1)(c) that is well beyond the merely possible or speculative, it has not been established that the exemption applies (Merck Frosst Canada v. Canada (Health), 2012 SCC 3, at paras. 197, 206).

[46]Even if CIRNAC was entitled to withhold information, given the public availability of some of the information, CIRNAC must ensure that public access to information is restricted as little as possible. Section 25 of the Act requires the disclosure of any portions of a record that does not contain information that warrants exemption and can reasonably be severed from information that must be withheld. CIRNAC’s position that the entirety of the record should be withheld despite the amount of information publicly available is hard to reconcile with its severance obligations set out in section 25.

[47]Consequently, I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[48]In conclude that the circumstances set out in subsections 20(5) and 20(6) did not exist when CIRNAC responded to the access request. Consequently, there is no need to examine the issue of discretion.

Paragraph 20(1)(d): negotiations by a third party

[49]Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

[50]To claim this exemption, institutions must show the following:

A third party is or will be conducting contractual or other negotiations.
Disclosing the information could interfere with those negotiations.
There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[51]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.

[52]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.

[53]However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) 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?

[54]CIRNAC has applied paragraph 20(1)(d), concurrent with paragraph 18(b), paragraph 20(1)(b), paragraph 20(1)(c), and section 23, to withhold the entirety of the records. CIRNAC did not apply paragraph 20(1)(d) when it originally responded to the access request but invoked it during the course of the investigation.

[55]The word “interference” in paragraph 20(1)(d) denotes an “obstruction” or “thwarting” of the negotiations (See, for example: Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), 1990 CanLII 8108 (FCA) (“Saint John Shipbuilding”); Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue), 2003 FC 1037, at para. 133). Heightened competition flowing from disclosure is not enough (See, for example: Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42).

[56]It also must be shown that the interference to the third party’s actual negotiations is reasonably expected, meaning that it is considerably above a mere possibility. (Merck, supra). The fear of interference in the form of an obstruction to actual contractual or other negotiations cannot be merely speculative. It must be supported by cogent and credible evidence.

[57]CIRNAC, in support of its position that paragraph 20(1)(d) applies, asserted that:

the Squamish Nation is currently negotiating with the federal government and local government regarding the use of lands within and adjacent to “Kitsilano IR 6”;
the Squamish Nation had “…counter claims from other indigenous bands seeking settlements against the Crown”; and
disclosing the records would provide “…information not publicly available to groups who may wish to initiate additional claims against the Squamish Nation and in turn, the Crown”.

[58]These submissions fall short of establishing that the requirements of paragraph 20(1)(d) are met.

[59]CIRNAC failed to demonstrate how the disclosure of the records, or any particular information therein, could thwart or obstruct such negotiations, much less establish that such an outcome could reasonably be expected to occur.

[60]Claims that the Squamish Nation’s negotiations with the federal government could reasonably be expected to be interfered with are certainly undermined by the fact that the Squamish Nation and the Crown are already privy to the Agreement as signatories of the Settlement. Any interference with negotiations involving counter claims against the Squamish Nation by other indigenous groups are difficult to envision given that such claims appear to have been settled in advance of CIRNAC’s receipt of the access request. As noted in the British Columbia Supreme Court:

The Musqueam and Tsleil-Waututh had also initiated proceedings claiming that the federal government had failed to protect its interests when allocating the Kitsilano Reserve to the Nation. In 2000, the Nation settled their action and received $92.5 million. The claims by the Musqueam and Tsleil-Waututh were dismissed in 2001. As a result, the original grant of the reserve lands to the [Squamish] Nation was affirmed. (Kits Point Residents Association v Vancouver (City), 2023 BCSC 1706, para 18; see also Mathias v The Queen, 2000 CanLII 16282 (FC))

[61]Finally, alleged harms flowing from disclosure are further difficult to envision given the extent to which information concerning the Settlement are already in the public domain.

[62]Since CIRNAC failed to show that the disclosure of the information could result in a reasonable expectation of interference with negotiations, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[63]I conclude that the circumstances set out in subsections 20(5) and 20(6) did not exist when CIRNAC responded to the access request. Consequently, there is no need to examine the issue of discretion.

Section 23: solicitor-client and litigation privilege

[64]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.

[65]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.

[66]To claim this exemption with regard to litigation privilege, 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.

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

[68]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?

[69]CIRNAC has applied section 23, concurrent with paragraph 18(b), paragraph 21(1)(b), paragraph 20(1)(c), and paragraph 20(1)(d), to withhold the entirety of the responsive records.

[70]CIRNAC has claimed that the responsive records are subject to legal advice privilege and / or litigation privilege, so as to fall within the scope of section 23. Having reviewed the records at issue and considered CIRNAC’s submissions I am not satisfied that either privilege applies.

[71]CIRNAC, in support of its claim that the records are subject to legal advice privilege, submitted that the records include information provided as advice to CIRNAC from the Department of Justice Canada in consideration of mutual promises contained within the settlement agreement.

[72]As previously noted, the records at issue consist of a settlement agreement between two distinct parties, the Squamish Nation and the Crown. While the substance of what was agreed may have been informed by advice received by the respective parties’ legal counsel, no portions of the agreement consist of communications between a lawyer / notary and their client for the purpose of seeking or obtaining legal advice. It is also apparent that there was no intention for the Settlement Agreement to be kept confidential as between a solicitor / notary and their client, as the Agreement was shared and agreed to by adversarial parties with opposing interests. As such, it is not clear that the requirements of solicitor-client privilege in the form of legal advice privilege are met and how it was not waived when shared with the opposing party. Furthermore, the Federal Court confirmed that section 23 does not encompass “settlement negotiations” (Blood Band v. Canada (Minister of Indian and Northern Development, 2003 FC 1397, at para 55.)

[73]With regard to litigation privilege, CIRNAC rightfully concedes that the Settlement Agreement was not gathered for the dominant purpose of litigation. As mentioned above, the Settlement Agreement was created to settle a litigious dispute between two opposing parties and could therefore not be created under the “zone of privacy” to facilitate the investigation and preparation of a case for trial for which the litigation privilege was intended (Blank v. Canada (Minister of Justice), 2006 SCC 39). A settlement agreement, mutually agreed to by opposing parties, in no way advances these objectives.

[74]Rather, CIRNAC argues that the Settlement Agreement itself is subject to ongoing or separate litigation. While litigation privilege may be extended by “related proceedings”, the related proceedings must necessarily involve “the same or related parties and arise from the same or a related cause of action” or “issues common to the initial action” (Blank, ibid, at para 39).

[75]The litigation reference by CIRNAC relates to an access request made to Indigenous Services Canda (ISC) ISC-A-2021-00059 (“ISC litigation”). That litigation was commenced in 2024 and initiated under the Act, while the actions that preceded the Settlement Agreement related to reserve-based claims and other Indian Act related claims made by Squamish Nation against the federal government. The two proceedings spring from different juridical sources, 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, litigation privilege does not apply (Blank, ibid, at para 39). Furthermore, the ISC litigation was nowhere near in progress or reasonably expected to occur when the Agreement was created or prepared. I cannot accept that the Settlement Agreement was gathered to “prepare the case for trial” or relate to the “zone of privacy” which the privilege is meant to protect.

[76]While I have no doubt that ISC would have received legal advice in relation to its current ATIP litigation as suggested, CIRNAC has failed to convince me how the information contained in the Agreement (which was created in 2000) in any way reflects the legal advice that could have been given in a litigation that was commenced 24 years later. CIRNAC has not provided any other representations which have convinced me that litigation privilege or legal advice privilege could apply in the circumstance.

[77]Finally, although the ATIP is a shared service of both ISC and CIRNAC, each institution are distinct legal entities under the Act. While the Settlement Agreement may be the subject of whether it can be disclosed in the ISC litigation, the record was under the control of a distinct government institution and was responsive to a different access request. Therefore, each Head of government institution bears the onus to individually respond to request and justify the refusal.

[78]Considering the above, I conclude that the information does not meet the requirements of section 23. Consequently, there is no need to examine the issue of discretion.

Settlement Privilege

[79]In their representations, both Squamish Nation and CIRNAC’s submit that settlement privilege applies to restrict disclosure of the records, but neither party elaborates nor demonstrates how the privilege clearly applies in the circumstance.

[80]CIRNAC for its part appears to argue settlement privilege to demonstrate the confidential nature of the Settlement Agreement, while Squamish Nation appears to assert settlement privilege as a stand-alone basis for refusing disclosure.

[81]In response to CIRNAC’s position, the privileged or confidential nature of a record is not, in and of itself, a sufficient basis that meets the requirements of paragraphs 18(b), and 20(1)(b), (c) or (d). Paragraphs 20(1)(c), (d) as well as 18(b) are harms-based exemptions. Therefore, the Minister must demonstrate how the stated harm(s) could reasonably be expected to occur as a result of the disclosure of the Agreement, or parts thereof. While paragraph 20(1)(b) is a class-based exemption, the Agreement must fall under one (or more) of the stated classes of information and meet the remaining requirements of paragraph 20(1)(b). It is insufficient to state that the Agreement intended to be privileged and/or treated as confidential by the parties. In all cases, the Minister must meet all the requirements of the stated exemption to justify the refusal.

[82]To the extent that settlement privilege is being relied upon as a stand-alone basis to refuse disclosure by the Squamish Nation, the common law cannot be invoked as a stand-alone basis for refusing disclosure of records under the Act (Appleton, supra para 24; Blank supra, at paras 66-68). Given the scheme and its purpose, the Act provides for a general right of access to any record under the control of government institutions, subject only to necessary exceptions, which should be limited and specific. The “necessary exceptions” were decided by Parliament and must therefore be confined to those expressly stated under the Act (Rubin v. Canada (Minister of Transport), 1997 CanLII 6385 (FCA)). Therefore, if records under the control of an institution are subject to settlement privilege, they must fall within one of the exceptions specified within the Act to justify being withheld.

[83]While settlement privilege does not fall under section 23, the Federal Court has confirmed that it falls within section 20(1)(d) (Appleton, supra at para 24; and Blood Band, supra at para. 55). For the reasons already stated above, I am not satisfied that the Minister or Squamish Nation has met their burden in meeting the criteria of paragraph 20(1)(d).

[84]Even if settlement privilege were found to be a stand-alone basis for refusal under the Act, Squamish Nation has failed to demonstrate that settlement privilege applies to responsive records, and/or that the privilege has not been waived given the amount of information about the Settlement Agreement that was disclosed publicly. Alternatively, to the extent that settlement privilege could be found to apply to the responsive records, and that the common law privilege could be used as a stand-alone basis for refusing disclosure, I would conclude that the prevailing public interest to the right of access outweighs the public interest in encouraging settlement in the circumstances (Sable Offshore Energy Inc. v. Ameron International Corp., 2003 SCC 37). In my view, the quasi-constitutional right of access provided for under the Act, the restrictive language used to describe the exception to the general right of access, the explicit inclusion of other common law privileges as classed based exemption under the Act and the omission of settlement privilege therein, and the respect for the legislative scheme and legislative intent, all outweigh the public interest in preserving the privilege in the circumstances.

Outcome

[85]The complaint is well founded because CIRNAC did not properly apply paragraph 18(b), paragraph 20(1)(b), paragraph 21(1)(c), paragraph 20(1)(d) 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 December 18, 2025, I issued my initial report to the Minister of Crown-Indigenous Relations setting out my order.

On January 21, 2026, the Minister gave me notice that CIRNAC would not be implementing the order.

I remind the Minister that if she does not plan to implement my order, she must apply to the Federal Court within timelines 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.