Transport Canada (Re), 2025 OIC 10

Date: 2025-02-19
OIC file number: 5823-00735
Access request number: A-2020-00062

Summary

The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request. The request was for copies of all rail workplace fatality investigation reports completed by Transport Canada since January 2000. The allegation falls under paragraph 30(1)(a) of the Act.

The parties did not demonstrate that the requirements of the applied exemptions were met for certain information. Although one third party asserted that section 23 (solicitor-client and litigation privilege) also applies to the information related to it, the third party did not met its burden of showing that the requirements of the exemption were met.

The Information Commissioner ordered that Transport Canada disclose certain information where the parties had not demonstrated that the requirements of the exemptions were met. Transport Canada gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that Transport Canada had improperly withheld information under subsection 19(1) (personal information), paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) and paragraph 20(1)(c) (financial impact on a third party) of the Access to Information Act in response to an access request. The request was for copies of all rail workplace fatality investigation reports completed by Transport Canada since January 2000.

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

Investigation

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

[4]        The Office of the Information Commissioner (OIC) sought representations from the Canadian Pacific Railway Company (CP), the Canadian National Railway Company (CN), Transport Canada, the Privacy Commissioner of Canada and the complainant. Representations were received from all parties, and I considered these representations in coming to my conclusions.

Subsection 19(1): personal information

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

[6]        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).

[7]        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.

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

Does the information meet the requirements of the exemption?

[9]        I accept that the requested records contain a significant amount of personal information about identifiable individuals. Such information meets the requirements of subsection 19(1) and includes the names, titles and contact information of third-party employees and the victims’ personal information (for example, work experience, date of birth, injuries sustained). Information recorded in any form is personal information if it is “about” an individual and if it permits or leads to the possible identification of the individual. Where information does not explicitly identify an individual, information will be about an individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.” (Gordon v Canada (Health), 2008 FC 258, at paragraph 34). (see: Gordon v Canada (Health), 2008 FC 258, at paragraph 34).

[10]      With respect to the information within the witness statements and summaries of witness statements, and whether this information is about identifiable individuals, Transport Canada provided detailed representations asserting that it considered the risk of reidentification with respect to this information.

[11]      Pursuant to paragraph 35(2)(d), the OIC consulted the Office of the Privacy Commissioner (OPC) as to whether the factual information within the summaries and witness statements is personal information and whether there is a serious risk the witnesses could be identified based on disclosure of factual information within the witness statements.

[12]      On the matter of whether factual information could be considered more about the work being performed than about any individual, the OPC agreed with the OIC that even the factual information about the circumstances surrounding the deaths is information about an individual. Although I agree that facts regarding the actions of individuals are the personal information of those individuals, I find that some of the facts withheld by Transport Canada are not about any individual. Such information is not personal information as it is about the weather, the location, the equipment and other non-personal matters, rather than revealing anything about the opinions or actions of any individual.

[13]      I note that, although some of the withheld information is the same as the information that was at issue in my decision Transport Canada (Re), OIC 2023 38, in that case the victim’s information could be disclosed on the basis of consent given by the next of kin, whereas in the present case no such consent was provided when the access request was made.

[14]      Finally, I must turn to the question of whether the remaining information within the summaries and witness statements, which I find to be personal information, is about identifiable individuals. Unlike in the records at issue in my decision Transport Canada (Re), OIC 2023 38, the victims are identifiable based on the information released by Transport Canada, and no consent from the next of kin was provided. Another key difference is that in this case, certain details have also been released, such as the timing of interviews and the job titles of interviewees, which increases the risk of identification of the individuals. Based on the records in question and supported by the representations I received from the OPC and Transport Canada, I find that no further disclosure is possible without creating a serious risk of reidentification of the individuals.

[15]      I conclude that the withheld information meets the requirements of subsection 19(1), other than where it is factual in nature and can reasonably be severed from the personal information.

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

[16]      Since Transport Canada was of the view that the information meets the requirements of subsection 19(1), it 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.

[17]      Transport Canada demonstrated that:

• Seeking consent from the individuals was not reasonable under the circumstances, given the age of the records and number of individuals;
• It considered whether disclosure would be justified in accordance with any paragraph under subsection 8(2) of the Privacy Act but found that it was not.

[18]      I conclude that the circumstances set out in paragraphs 19(2)(a) and 19(2)(c) did not exist when Transport Canada responded to the access request.

[19] Under paragraph 19(2)(b), Transport Canada’s discretion would have been triggered if any of the personal information was publicly available. Transport Canada indicated that, other than where some of the victim’s names and ages are public, relevant public information was either not of the same type or was leaked rather than intentionally disclosed.

[20] I disagree with Transport Canada’s assessment of the personal information that is publicly available, as the OIC had provided Transport Canada with sources of online information, beyond the names and ages of certain victims, which I find to be the same as the withheld information.

[21]      I conclude that the circumstance set out in paragraph 19(2)(b) existed when Transport Canada responded to the access request. Consequently, Transport Canada was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, Transport Canada had to consider all the relevant factors for and against disclosure.

[22]      Transport Canada has indicated that it will disclose the publicly available names and ages of the victims, but made no mention of the other public information outlined above.

[23]      I conclude that Transport Canada did not consider all relevant factors when it decided not to disclose the publicly available information. The exercise of discretion by Transport Canada was not reasonable.

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

[24]      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).

[25]      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.

[26]      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.

Does the information meet the requirements of the exemption?

[27]      Transport Canada applied paragraph 20(1)(b) to the following information:

• an excerpt from a CN Locomotive Engineer Operating Manual 8960 and related information (pages 19 and 21 of the records);
• the cost for CP to repair damaged railcars (page 64 of the records);
• observations from a CP engine log analysis (pages 258-261 of the records);
• CP’s position in response to a recommendation (pages 294 and 296 of the records); and
• certain details from the report into a CN employee’s death at Gutah, BC on November 28, 2012 (pages 1069 and 1072-1077 of the records).

[28]      I accept that the cost of repairs is financial information. I also accept that some of the withheld information relates to third-party-specific data, procedures, and processes, making some of it commercial or technical information meeting the first requirement of the exemption. Such information includes excerpts from operating manuals and system notices, data logs and descriptions of equipment and processes in place.

[29]      With respect to CP’s position in response to a recommendation (pages 294 and 296), I do not find such information is financial, commercial, scientific or technical in nature. As the withheld information does not reveal what actions CP intended to take.

[30]      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 to 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 a reasonable expectation of confidence that it will not be disclosed; and
• the information, whether provided by law or supplied voluntarily, be communicated in a relationship between government and the third party that is either a fiduciary relationship or one that is not contrary to the public interest, and that will be fostered for the public benefit by confidential communication. (see Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 FTR 194 (F.C.T.D.); see also: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 133).

[31]           Some of the withheld information was found to be publicly available.

[32]      To the extent that the withheld information was made publicly available through Transportation Safety Board reports, intentional disclosure by the government, disclosure by CN and through court proceedings, I am not convinced that these publicly available portions of the information are objectively confidential. Although both CN and CP objected to the information at issue being characterized as public, Transport Canada agreed with my assessment that some of the information at issue is available to the public, specifically the information withheld on pages 19, 21, 1069 and 1072-1077.

[33]      I am also not convinced that some of the information at issue was communicated with a reasonable expectation that it would not be disclosed. The records at issue were communicated within the context of Transport Canada’s investigation under the Canada Labour Code into the deaths of employees that occurred in the workplace or while the employee was working. Subsections 144(5) and (5.01) of the Canada Labour Code would appear to reduce the reasonable expectation of confidentiality of information obtained as a result of activities carried out in section 141. These provisions permit the publication or disclosure of such information if the Head is satisfied that this publication or disclosure would be in the interest of occupational health and safety or the public interest.

[34]      In its representations, CN submitted that confidentiality is provided for under the Canada Labour Code. Subsection 144(3) of the Canada Labour Code is listed under Schedule II of the Access to Information Act. It is a mandatory exemption that requires Transport Canada to withhold secret processes and trade secrets obtained from third parties during the course of an investigation. Transport Canada did not invoke subsection 24(1) and has made no representations in support of this exemption. CN also did not provide representations as to how the withheld information constitutes secret processes or trade secrets.

[35]      In its representation to the OIC, CP asserted that the limited circumstances under which information can be disclosed under the Canada Labour Code supports that there is a reasonable expectation that information will mainly be held in confidence. While I understand CP’s position, it is important to note that there are circumstances, such as disclosure in the public interest, where information collected under the Canada Labour Code may be disclosed. As such, I do not find the parties have provided sufficient evidence that these provisions are determinative of a reasonable expectation of confidentiality.

[36]      Therefore, I believe that citing the Canada Labour Code alone does not adequately demonstrate an expectation of confidentiality, regardless of any increased expectations it may imply. If Parliament had intended section 144 of the Canada Labour Code to ensure confidentiality of all information collected by Transport Canada during investigations, I would expect Schedule II of the Access to Information Act to offer broader protection beyond just trade secrets or secret processes.

[37]      I am also not satisfied that certain information was communicated within the context of a relationship between the third party and Transport Canada that would be fostered for public benefit by the communication’s confidentiality. Some of the information pertains to matters of safety. Where this is the case, confidential communication of such information may negatively impact the public interest.  

[38]      Based on the above, it has not been established that the second requirement of paragraph 20(1)(b) is met, other than for the cost of repairs and technical information, which both meet the requirements of objective confidentiality.

[39]      Turning to the third requirement of paragraph 20(1)(b), I find that some of the information at issue was not supplied to a government institution by a third party. While the records may have been prepared with the benefit of observations made of a third party’s operations and, in some instances, with the benefit of information provided by a third party, that is not sufficient to render the information at issue “supplied by” a third party. The case law under paragraph 20(1)(b) has repeatedly distinguished between information supplied by a third party and independent observations made based on information that has been supplied (see, for example: Merck Frosst v. Canada (Minister of Health), 2012 SCC 3, at paras. 152‐158; Canada (Transport) v. Air Transat A.T. Inc., 2019 FCA 286, paras. 71-81).

[40]      The portions of the records at issue that could be considered supplied by a third party are limited to information that emanated directly from a third party without any added assessment, observation or commentary from Transport Canada officials, such as direct quotes from safety procedures and details that would not have been observable by the investigator. I find that the investigator’s analysis and conclusions on pages 1072-1075 do not meet this requirement.

[41]      Turning to the final requirement of paragraph 20(1)(b), based on the representations the third parties already provided to Transport Canada, it generally appears that CN and CP have consistently treated this information as confidential. The exception is where CN has voluntarily made the information public or has provided testimony or evidence revealing the information at issue.

[42]      The third parties and Transport Canada have not shown that any specific information, apart from the financial and technical information on pages 64 and 258-261, meets all four requirements of the exemption. Consequently, I conclude that only the information on pages 64 and 258-261 meets the requirements of paragraph 20(1)(b).

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

[43]      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.

[44]      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.

[45]      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.

[46]      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.

[47]      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.

[48]      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?

[49]      Transport Canada withheld information related to CN under paragraph 20(1)(c) on pages 1074-1075 of the records.

[50]      CN has indicated that disclosure of the investigator’s analysis and conclusions could be damaging. CN asserts that disclosure could lead to CN being seen as responsible for an accident. In this case, Employment and Social Development Canada laid charges against CN. Consequently, CN had the opportunity to publicly provide its own analysis of the incident and its own conclusions. This would seem to lessen any harm that could result from similar information being disclosed in this report. Although questioned on this point, CN did not address this in its representations.

[51]      I note that the courts have been skeptical of arguments relating to public misunderstanding, because it could undermine the fundamental purpose of access to information legislation – which is to give the public access to information so that the public may evaluate the information, and not to protect the public from the information (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, para. 224).

[52]      CN asserted that the harm would not result from misunderstanding, but from taking the inspector’s findings as laying blame on CN. In its representations, CN cited the findings in Canadian National Railway v. Teamsters Canada Railways Conference (2013 OHSTC 5). The harm identified by CN would seem to be harm to its reputation and that disclosure could reasonably be expected to result in litigation against CN.

[53]      As far as harm to CN’s reputation, CN’s argument is speculative, without any supporting evidence. Rather, in a subsequent decision to the one referenced by CN, on hearing the merits of the matter, the tribunal member disclosed the entire wording of the direction. In spite of this, CN demonstrated no harms flowing as a result.

[54]      On the matter of litigation, other than in cases with significant supporting evidence, the courts have ruled that paragraph 20(1)(c) “was not intended to cover litigation costs and damage awards” (see Janssen-Ortho Inc. v. Canada (Minister of Health), 2005 FC 1633, para. 54; Hutton v. Canada (Minister of Natural Resources), 1997 CanLII 5581, para. 3). I am not convinced that the information related to CN meets the requirements of the exemption, as CN has not provided sufficient evidence to support its position.

[55]      CN referred to protections under section 7 of the Canadian Charter of Rights and Freedoms in its representations, but did not provide sufficient detail to establish how this relates to the requirements of this or any other exemption.

[56]      Transport Canada did not apply paragraph 20(1)(c) to the records related to CP, however, CP raised this exemption in its representations. CP has made a similar assertion as CN, indicating potential legal implications as a harm that could result from disclosure.

[57]      CP also indicated that information regarding “personnel matters may be used by competitors to the disadvantage and harm of CPKC”, but provided no details as to which information of this type could be used against CP or how. Furthermore, it is unclear how the information that relates to CP speaks to the “personnel matters” of CP.

[58]      For paragraph 20(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 Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 197, 206).  

[59]      No explanation has been offered as to how disclosure could reasonably be expected to result in either a material financial loss or gain, or injury to a third party’s competitive position. Therefore, the parties have not demonstrated a clear and direct connection between disclosure of the information at issue, and a risk of harm within the meaning of paragraph 20(1)(c) that is well beyond the merely possible or speculative.

[60]      Any link to such harm would seem to be diminished by the public availability of some of the information, which the third parties have not indicated as having caused them harm.

[61]      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?

[62]      Since Transport Canada was of the view that the information meets the requirements of paragraphs 20(1)(b) and 20(1)(c), it was required to reasonably exercise its discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when the two circumstances described in subsection 20(6) existed when it responded to the access request.

[63]      Transport Canada provided detailed representations on this point, including that disclosure would not be in the public interest where disclosure would hinder open reporting by third parties to Transport Canada. I find Transport Canada’s position to be a reasonable one in this case.

[64]      I conclude that the circumstances set out in subsection 20(6) did not exist when Transport Canada responded to the access request. There is no need to examine the issue of discretion.

Section 23: solicitor-client and litigation privilege

[65]      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.

[66]      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.

[67]      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.

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

[69]      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?

[70]      Transport Canada did not apply section 23 to the records; however, CP raised this exemption in its representations. CP argued that the information at issue is either the result of a communication between client and solicitor or it is information pertaining to or created for the dominant purposes of existing or contemplated litigation.

[71]      Although CP’s lawyers may have been involved in witness interviews and communications with Transport Canada, CP has not demonstrated how disclosure would reveal the content of any communications directly related to the seeking and giving of legal advice. If advice exchanged between CP and its lawyers is contained within the records, CP would seem to have waived privilege by disclosing this exchange to Transport Canada.

[72]      In relation to CP’s assertion that litigation privilege also applies, CP failed to identify actual or contemplated litigation, nor did they attempt to identify any specific document within the record as having been prepared or gathered for the dominant purpose of litigation.

[73]      Transport Canada indicated that, in its opinion, section 23 cannot be applied to the information at issue.

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

Outcome

[75]      The complaint is well founded.

Orders

I order the Minister of Transport to do the following:

1. Disclose the information withheld under subsection 19(1) that is factual in nature, is not about an individual and can reasonably be severed from the personal information;
2. Re-exercise his discretion under 19(2)(b) to decide whether to disclose the publicly available personal information; and
3. Disclose the information withheld under paragraphs 20(1)(b) and 20(1)(c), apart from on pages 64 and 258-261 and where I have found subsection 19(1) to apply to the same information.

Initial report and notice from institution

On January 17, 2025, I issued my initial report to the Minister of Transport setting out my orders.

On February 17, 2025, the Manager, Access to Information and Privacy gave me notice that Transport Canada would be implementing the orders.

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 CP, CN and the Privacy Commissioner of Canada.