Employment and Social Development Canada (Re), 2025 OIC 55

Date: 2025-11-18
OIC file number: 5823-01218
Access request number: A-2022-03053

Summary

The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under the following provisions of the Access to Information Act:

1. paragraph 16(1)(c) (law enforcement, conduct of investigations);
2. subsection 16(2) (facilitating the commission of an offence);
3. subsection 19(1) (personal information);
4. paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
5. paragraph 20(1)(c) (financial impact on a third party);
6. paragraph 21(1)(a) (advice or recommendations);
7. paragraph 21(1)(b) (accounts of consultations or deliberations); and
8. section 23 (solicitor-client and litigation privilege).

This was in response to an access request for records related to CSL Group Inc., including policy health and safety committee reports and workplace health and safety committee reports, from 2012 to 2022. This allegation falls under paragraph 30(1)(a) of the Act.

The complainant also alleged that ESDC had not conducted a reasonable search for records in response to the same access request. This allegation falls under paragraph 30(1)(a) of the Act.

Apart from some personal information and recommendations that clearly meet the requirements for exemption, ESDC and the third party did not establish that any of the other information was exempt from disclosure.

ESDC did not provide adequate evidence that its search for records was reasonable.

The Information Commissioner ordered that ESDC disclose most of the information and carry out a new search for records. ESDC gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]The complainant alleged that Employment and Social Development Canada (ESDC) had improperly withheld information under the following provisions of the Access to Information Act:

9. paragraph 16(1)(c) (law enforcement, conduct of investigations);
10. subsection 16(2) (facilitating the commission of an offence);
11. subsection 19(1) (personal information);
12. paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information);
13. paragraph 20(1)(c) (financial impact on a third party);
14. paragraph 21(1)(a) (advice or recommendations);
15. paragraph 21(1)(b) (accounts of consultations or deliberations); and
16. section 23 (solicitor-client and litigation privilege).

[2]This was in response to an access request for records related to CSL Group Inc. (CSL Group), including policy health and safety committee reports and workplace health and safety committee reports, from 2012 to 2022. This allegation falls under paragraph 30(1)(a) of the Act.

[3]The complainant also alleged that ESDC had not conducted a reasonable search for records in response to the same access request. This allegation falls under paragraph 30(1)(a) of the Act.

[4]During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate information about COVID-19. Consequently, pages 13-50 of the response were excluded from the scope of the complainant.

Investigation

[5]When an institution withholds information that includes information related to a third party, the third party and/or the institution bear the burden of showing that refusing to grant access is justified.

[6]During the investigation, ESDC decided to no longer rely on subsection 16(2) or paragraph 16(1)(c) to withhold information on pages 6, 8, 10-11, 55-56, 135-265, 267-277, 289, 300-302, 317-320 but did not release the information.

[7]During the investigation, ESDC decided also to rely on:

• paragraph 21(1)(a), paragraph 21(1)(b) and section 23 to withhold information on pages 55-56;
• subsection 19(1) to withhold information on pages 135, 138 and 289;
• paragraph 20(1)(b) to withhold information on pages 252-253, 273; and
• subsection 16(2) to withhold information on page 273.

[8]The OIC sought representations from CSL Group pursuant to paragraph 35(2)(c) of the Act. CSL Group did not respond to the initial request for representations.

[9]The OIC sought additional representations from CSL Group following ESDC invoking third-party exemptions on pages 252-253 and 273 of the response. CSL Group responded that it did not feel the information qualified for third-party exemptions under the Act.

[10]A notice was sent to CSL Group of my intention to order disclosure of information related to it, pursuant to section 36.3. CSL did not provided any representations in response to the notice.

Paragraph 16(1)(c): conduct of investigations

[11]Paragraph 16(1)(c) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm federal or provincial law enforcement or the conduct of investigations (for example, information about the existence of an investigation that would reveal the identity of a confidential source or that was obtained during an investigation, as set out in subparagraphs 16(1)(c)(i) to (iii)).

[12]To claim this exemption with regard to the conduct of investigations, institutions must show the following:

• disclosing the information could harm the conduct of lawful investigations—that is, investigations that are within the authority of an institution and are one of the following:
  • being conducted to administer or enforce an Act of Parliament or authorized under such an Act; or
  • of the types described in Schedule II of the Access to Information Regulations.

Does the information meet the requirements of the exemption?

[13]As with other injury tests, for paragraph 16(1)(c) to apply, there must be a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible or speculative (see Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (Merck), paras. 197, 206).

[14]ESDC indicated that it would no longer rely on paragraph 16(1)(c) to withhold information, but it did not release the information nor provide representations as to how it meets the requirements for other exemptions. ESDC has not met its burden of demonstrating that the requirements of this exemption are met.

[15]I conclude that the information does not meet the requirements of paragraph 16(1)(c).

Subsection 16(2): facilitating the commission of an offence

[16]Subsection 16(2) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to facilitate the commission of an offence.

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

• Disclosing the information (for example, information on criminal methods or techniques, or technical details of weapons, as set out in paragraphs 16(2)(a) to (c)) could facilitate the commission of an offence.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

Does the information meet the requirements of the exemption?

[18]ESDC indicated that it was ceasing reliance on subsection 16(2) in all cases where it was originally applied, but ESDC invoked subsection 16(2) to withhold the serial number of a camera on page 273, previously withheld under paragraph 16(1)(c).

[19]ESDC indicated that this information needed to be withheld “to protect vulnerabilities of government equipment and systems”. ESDC did not provide any details as to how disclosing the serial number could facilitate the commission of an offence. ESDC did not demonstrate that there is a reasonable expectation that this harm could occur if the serial number were disclosed.

[20]I conclude that the information does not meet the requirements of subsection 16(2).

Subsection 19(1): personal information

[21]Subsection 19(1) requires institutions to refuse to disclose personal information.

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

• The information is about an individual—that is, a human being, not a corporation.
• There is a serious possibility that disclosing the information would identify that individual.
• The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[23]When these requirements are met, institutions must then consider whether the following circumstances (listed in subsection 19(2)) exist:

• The person to whom the information relates consents to its disclosure.
• The information is publicly available.
• Disclosure of the information would be consistent with section 8 of the Privacy Act.

[24]When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[25]ESDC applied subsection 19(1) to various information within the records, including third-party employee information, signatures, provincial-employee information, worksite numbers and business information of non-public servants.

[26]I accept that most of the information at issue is about identifiable individuals and is not an exception to the definition of personal information.

[27]The address on page 136, however, relates to a company rather than an individual, and thus does not meet the first requirement of subsection 19(1). Moreover, I am not convinced that this information can be linked to an individual, and thus that there is not a serious possibility that disclosing the information would identify an individual.

[28]I accept that site and workplace numbers (pages 135, 136 and 289), but not the corporate address (page 136), meet the requirements of subsection 19(1). The site and workplace numbers relate to a small number of individuals and incidents, and therefore disclosure risks identifying the individuals who made the complaints. The corporate address, on the other hand, is not where the alleged incidents occurred, and thus does not help to identify the individuals who made the complaints, as it relates to a much larger number of individuals and incident locations.

[29]I am also not convinced that the following types of information on the business cards on page 138 of the records meets the requirements of subsection 19(1):

• Logos;
• Office addresses;
• General office contact phone and fax numbers (not direct lines, extensions or cellular numbers);
• The generic portion of last four business cards.

[30]These pieces of information relate to organizations rather than individuals, and thus do not meet the first requirement of subsection 19(1). Moreover, I find that these pieces of information cannot be linked to an individual, and thus that there is not a serious possibility that disclosing the information would identify any individual.

[31]Given the matter at issue, I consulted the Privacy Commissioner under subsection 36(1.1) of the Act. The Privacy Commissioner agreed with my conclusions regarding the corporate address and the non-personal information on the business cards.

[32]I conclude that the information meets the requirements of subsection 19(1), apart from the corporate address on page 136 and the non-personal information on the business cards on page 138.

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

[33]Since some of the information meets the requirements of subsection 19(1), ESDC was required to reasonably exercise its discretion under subsection 19(2) to decide whether to disclose the information when one or more of the circumstances described in subsection 19(2) existed when it responded to the access request.

[34]I find that that:

• ESDC did not have consent to disclose the personal information;
• The information was not publicly available; and
• Disclosure of the information would not be consistent with section 8 of the Privacy Act.

[35]I conclude that the circumstances set out in subsection 19(2) did not exist when ESDC responded to the access request. There is no need to examine the issue of discretion.

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

[36]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).

[37]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.

Does the information meet the requirements of the exemption?

[38]ESDC withheld various types of information under paragraph 20(1)(b), including forms, letters and reports exchanged between CSL Group and ESDC. Many of the records were withheld in full.

[39]The first requirement regarding the application of paragraph 20(1)(b) is that the information is financial, commercial, scientific or technical. In Merck, the Supreme Court of Canada agreed with the well-established jurisprudence of the Federal Court that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. 

[40]In the representations provided to ESDC on March 31, 2023, CSL Group claimed that the information is technical, however, the parties did not establish how this could be the case. None of the information relates to material that is commonly referred to as “technical”, in keeping with the ordinary dictionary definition of the term. ESDC asserted that some of the information is commercial, but provided no details supporting that this is the case.

[41]Moreover, to qualify for this exemption, it is not enough that the records have financial or commercial implications; the records must contain financial or commercial information (see Appleton & Associates v. Canada (Privy Council Office), 2007 FC 640).

[42]I find that the parties have not established how any of the information constitutes financial, commercial, scientific or technical information. Consequently, I am not convinced that the withheld information meets the first requirement of the exemption.

[43]Since this first requirement is not met, there is no need to examine the other requirements of the exemption.

[44]I conclude that the information does not meet the requirements of paragraph 20(1)(b).

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

[45]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.

[46]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.

[47]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.

Does the information meet the requirements of the exemption?

[48]ESDC applied paragraph 20(1)(c) concurrently with paragraph 20(1)(b) to withhold the same types of information, in many cases to fully withhold records.

[49]The case law under the Act makes clear that a party resisting disclosure based on paragraph 20(1)(c) bears the onus of establishing, in more than just a general way, that there is a reasonable expectation of a probable harm described in paragraph 20(1)(c) occurring if the information is disclosed (see: Les Viandes du Breton Inc. v. Canada (Department of Agriculture), 2000 CanLII 16764 (FC), at para 12). This requires that a party opposing disclosure demonstrates that the harm is reasonably probable and must be assessed based on facts and on the specific records at issue in an access request (see: Samsung Electronics Canada Inc. v. Canada (Health), 2020 FC 1103, at para 113).

[50]CSL Group claimed that disclosing the information would prejudice its competitive position and incidentally its financial performance. CSL Group and ESDC have not, however, demonstrated a clear and direct connection between disclosure of the information and the alleged harm, nor have they shown that the risk of harm is well beyond the merely possible.

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

Paragraph 21(1)(a): advice or recommendations

[52]Paragraph 21(1)(a) allows institutions to refuse to disclose advice or recommendations developed by or for a government institution or a minister.

[53]To qualify for exemption under paragraph 21(1)(a), the records that contain the information must have been created less than 20 years before the access request was made.

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

• The information is advice or recommendations.
• The information was developed by or for a government institution or minister.

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

[56]However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(a) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[57]ESDC invoked paragraph 21(1)(a) to withhold reports, an activity log and official government documents on pages 4-7, 55-62 and 275-277.

[58]These pages were mostly withheld in their entirety under paragraphs 21(1)(a) and 21(1)(b) concurrently.

[59]Despite ESDC’s representations that the factual information on these pages was “intertwined with the advice and recommendations and could not feasibly be severed”, I am not convinced that no severance is possible. In all cases, these documents outline facts and most conclude with simple, concise recommendations, and the activity log and government document on pages 60-62 contain no advice or recommendations at all.

[60]I conclude that only the recommendations at the bottom of pages 6, 54, 57, 59 and 277 meet the requirements of paragraph 21(1)(a).

[61]Since the recommendations meet the requirements of paragraph 21(1)(a), I did not examine the other exemptions ESDC applied to the same information.

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

[62]Since the recommendations meet the requirements of paragraph 21(1)(a), ESDC was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, ESDC had to consider all the relevant factors for and against disclosure.

[63]An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation is sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[64]ESDC made limited representations regarding its exercise of discretion, indicating that “if reports such as these were made public it would lead to difficulty creating them in the future” and that disclosure “would lead to a chilling effect on similar reports in the future”. ESDC seems to have failed to consider that some of the information in question is largely public.

[65]I conclude that ESDC did not consider all relevant factors when it decided not to disclose the information. The exercise of discretion by ESDC was not reasonable.

Paragraph 21(1)(b): accounts of consultations or deliberations

[66]Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[67]To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

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

• The information is an account—that is, a report or a description.
• The account is of consultations or deliberations.
• At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

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

[70]However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemption?

[71]ESDC applied paragraph 21(1)(b) concurrently with paragraph 21(1)(a) in all cases to withhold entire records.

[72]Apart from the recommendations, which I have found to be exempt, I find the information to be factual, rather than outlining any key elements to be considered in coming to a decision. I am not convinced that no severance is possible.

[73]I conclude that the information does not meet the requirements of paragraph 21(1)(b).

Section 23: solicitor-client and litigation privilege

[74]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.

[75]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.

[76]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.

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

[78]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?

[79]ESDC withheld reports and internal government records on pages 57-134 under section 23.

[80]ESDC made representations asserting that section 23 applies with respect to both solicitor-client privilege or litigation privilege.

[81]None of the records in question were created by legal counsel, nor do any of the records seem to seek legal advice. ESDC did not explain how any of the records relate directly to the seeking of legal advice.

[82]ESDC did indicate that the records were prepared or gathered for the dominant purpose of litigation. While I accept that this may well be the case for at least some of the records, ESDC did not identify the relevant litigation or explain how relevant litigation is foreseeable. The records all date back to 2013 and seem to relate to a specific case that went before the Occupational Health and Safety Tribunal Canada. No appeals seem to have resulted. ESDC has not established how litigation privilege has not expired.

[83]I conclude that the information does not meet the requirements of section 23.

Reasonable search

[84]ESDC was required to conduct a reasonable search for records that fall within the scope of the access request—that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[85]A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[86]This search does not have to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must however be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[87]The OIC reviewed the documentation provided by ESDC related to its search for responsive records. The OIC also examined the responses of the Office of Primary Interest (OPI) to determine whether it had fulfilled its obligations under the Act to identify records relevant to the access request, under its control.

[88]I accept that the OPI tasked with searching for records, the labour branch, searched for records in the appropriate repositories. The records that were identified as responsive to the access request were then processed and sent to the complainant.

[89]The complainant identified several records that would seem to be responsive to the access request but which were not part of ESDC’s response.

[90]ESDC explained why, in general, certain of these records may not exist. It did not, however, provide representations supporting that its search would have found such records if they do exist, nor did ESDC indicate that it checked with the OPI that these records were not missed in the initial search.

[91]ESDC indicated that certain records may not have been provided because it has an agreement with Transport Canada under which Transport Canada carries our certain work on behalf of ESDC when they involve on-board employees. ESDC did not explain why it would not have received copies of Transport Canada reports into such incidents, or why such reports would otherwise not have been under ESDC’s control.

[92]I conclude that ESDC did not conduct a reasonable search for records.

Outcome

[93]The complaint is well founded.

Orders and recommendations

I order the Minister of Employment and Social Development to do the following:

1. Disclose the information withheld under paragraph 16(1)(c), subsection 16(2), paragraph 20(1)(b), paragraph 20(1)(c), paragraph 21(1)(b) and section 23, other than where subsection 19(1) or paragraph 21(1)(a) was applied concurrently to the same information;
2. Disclose the corporate address withheld under subsection 19(1) on page 136;
3. Disclose the non-personal information on the business cards withheld under subsection 19(1) on page 138;
4. Disclose the information withheld under paragraph 21(1)(a), apart from the recommendations at the bottoms of pages 6, 54, 57, 59 and 277;
5. Re-exercise her discretion to decide whether to disclose the information to which ESDC applied paragraph 21(1)(a), taking into account all relevant factors for and against disclosure, including those identified in my report;
6. Conduct a new search for records that respond to the access request, taking into account the records identified as potentially missing from the response, as identified in my report;
7. Provide a new response to the complainant once the search is complete;
8. Give access to any additional responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s); and
9. If no additional responsive records are located during the search, indicate in the response how and where the search was conducted and why no such records were identified.

Initial report and notice from institution

On August 27, 2025, I issued my initial report to the Minister of Employment and Social Development setting out my orders.

On September 25, 2025, ESDC’s Access to Information and Privacy Coordinator gave me notice that ESDC be implementing the orders. ESDC has already begun a new search for records and updates to the exemptions applied to the original response.

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. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, third parties and the Privacy Commissioner may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to CSL Group and the Privacy Commissioner of Canada.