Transport Canada (Re), 2025 OIC 9

Date: 2025-02-18
OIC file number: 5823-00068
Access request number: A-2019-00729

Summary

The complainant alleged that Transport Canada had improperly withheld information under paragraph 16(1)(c) (law enforcement, conduct of investigations), subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request. The request was for a copy of the Final Report of the Investigation and analysis of the accidental death of a named individual who died at a Canadian Pacific Railway Company (CP) railway yard. 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 CP asserted that additional exemptions under paragraph 20(1)(c) (financial impact on a third party), section 23 (solicitor-client and litigation privilege) and subsection 24(1) (disclosure restricted by another law) apply to the information related to CP, the third party did not met its burden of showing that the requirements of these exemptions 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 paragraph 16(1)(c) (law enforcement, conduct of investigations), subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information) of the Access to Information Act in response to an access request.

[2]        The request was for a copy of the Final Report of the Investigation and analysis of the accidental death of a named individual who died at a Canadian Pacific Railway Company (CP) railway yard.

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

Investigation

[4]        When an institution withholds information, including 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.

[5]        The Office of the Information Commissioner (OIC) sought representations from CP, 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

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

[7]        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).

[8]        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.

[9]        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?

[10]      I accept that the requested records contain a significant amount of personal information about identifiable individuals. The types of personal information withheld include the names, titles and contact information of third-party employees, the victim’s personal information (for example, work experience, date of birth, injuries sustained) and what witnesses told investigators (which is both the personal information of the witness and in some cases the victim and other individuals they may have mentioned). Information recorded in any form is personal information if it is “about” an 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).

[11]      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.

[12]      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.

[13]      On the matter of whether factual information appearing within witness statements is itself personal information, the OPC agreed with the OIC that it is not. I find that the records do contain factual information that can reasonably be severed from personal information. 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.

[14]      I turn next 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 witness statement summaries at issue here contain the time that each interview began and ended. As such, I considered how this information could be used by individuals who were waiting to be interviewed or had just been interviewed, in order to identify specific individuals. Based on the records at issue 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]      The complainant raised that the summaries of witness testimonies “are a secondary analysis and summary by the investigator”, rather than personal information. Having reviewed the summaries carefully, I find they are paraphrasing the witness statements, and include no analysis. Given their concise nature, the statements are dense with the types of details that pose a serious risk of reidentification of the witnesses.

[16]      I conclude that the 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?

[17]      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.

[18]      Transport Canada demonstrated that:

• Seeking consent from the individuals was not reasonable under the circumstances;
• Relevant public information was either not of the same type or was leaked rather than intentionally disclosed;
• 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.

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

Paragraph 16(1)(c): law enforcement, conduct of investigations

[20]      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)).

[21]      To claim this exemption with regard to the enforcement of federal or provincial laws, institutions must show the following:

• Disclosing the information could harm the enforcement of any law of Canada or a province.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[22]      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.

[23]      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?

[24]      Transport Canada applied paragraph 16(1)(c) on pages 52-61 and 63-64 of the records. Apart from the witness statements, which I have accepted meet the requirements of subsection 19(1), Transport Canada withheld the incident number under paragraph 16(1)(c).

[25]      Transport Canada made no representation specific to the incident number and how disclosure of this information could harm law enforcement or the conduct of investigations.

[26]      Transport Canada did not meet its burden, as it has failed to identify the harm that would result from disclosure or the likelihood of such harm occurring as a result of disclosure.

[27]      I conclude that the incident number does not meet the requirements of paragraph 16(1)(c).

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

[28]      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).

[29]      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.

[30]      When these 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?

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

• Observations from an engine log analysis (pages 8-11 of the records);
• CP’s response to the recommendations of the health and safety committee (pages 44, 46, 176-177, 180 and 182 of the records);
• Portions of witness interviews (pages 67-70, 72-77, 79, 83-86, 88, 90-96, 98-103 and 106-109 of the records);
• Portions of the Locomotive Event Recorder Data (pages 110-117 of the records);
• Portions of Appendix 18: Employer’s Investigation and Presentation to Employees (pages 129-131 of the records);
• Description of the causes and corrective actions (pages 138, 173, 175-177 and 180-181 of the records);
• Actions taken by the Work Place Committee (pages 137 and 175 of the records);
• Portions of CP’s responses to Direction (pages 181-182 and 187 of the records); and
• A portion of CP’s Assurance of Voluntary Compliance (page 192 of the records).

[32]      Where paragraph 20(1)(b) was applied to portions of witness interviews and statements, I find the information to be technical or commercial in nature, such as reference to equipment used, yard configuration, procedures or details of specific types of business.

[33]      I accept that details of CP’s network, operations, rules, procedures, customer projects and actions CP proposed to take to improve its operations fall within the category of commercial information. Such information appears not only in the witness interviews but also within Appendix 26 (pages 181-182).

[34]      I accept that the details from the engine log analysis and the data from the Locomotive Event Recorder (pages 8-11 and 110-117) fall within the meaning of technical information meeting the first requirement of the exemption.

[35]      Neither Transport Canada nor CP demonstrated, however, that the following types of information are financial, commercial, scientific or technical in nature: facts about non-standard occurrences contributing to the accident, CP’s reflections on the investigation, safety initiatives and concerns raised by Transport Canada and CP’s safety committee.

[36]      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).

[37]      Although the first 49 pages of the report are available online, it was confirmed that this information was leaked, and not made public intentionally. As such, it is not determinative of the objective confidentiality of the information.

[38]      I am 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 death of an employee that occurred in the workplace. Subsections 144(5) and (5.01) of the Canada Labour Code 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.

[39]      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 CP has provided sufficient evidence that these provisions are determinative of a reasonable expectation of confidentiality.

[40]      Where the information relates to potential safety issues, I find it would be reasonable to expect Transport Canada might disclose such information in the public interest.

[41]      I am also not convinced that some of the 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. I agree that generally confidential communication may foster the relationship between Transport Canada and CP for the public benefit by encouraging greater transparency and cooperation. Where the information pertains to matters of safety, however, I find that keeping the information confidential is contrary to the public interest.

[42]      Based on the above, it has not been established that the second requirement of paragraph 20(1)(b) is met for the withheld information where the information relates to matters of safety.

[43]      The withheld information was all supplied by CP and its employees to Transport Canada, and therefore meets the third requirement of the exemption.

[44]      Turning to the final requirement of paragraph 20(1)(b), based on the representations received, I accept that CP has consistently treated this information as confidential.

[45]      I conclude that only the following information meets all four of the requirements of paragraph 20(1)(b):

• the data on pages 8-11 and 110-117;
• technical and commercial information within questions in witness statements and interviews (pages 67-70, 72-77, 79, 83-86, 88, 90-96, 98-103, 106-109); and
• technical and commercial information within communications between CP and TC (pages 129, 173, 176, 181-182, 187).

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

[46]      Since Transport Canada was of the view that the information meets the requirements of paragraph 20(1)(b), 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.

[47]      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.

[48]      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.

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

[49]      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.

[50]      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.

[51]      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?

[52]      Transport Canada did not apply paragraph 20(1)(c) to the records; however, CP raised this exemption in its representations.

[53]      CP has indicated potential legal implications as a possible harm that could result from disclosure. On this matter, other than in cases with sufficient 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 at issue meets the requirements of the exemption, as no link to material financial harm or harm to CP’s competitive position has been substantiated by CP.

[54]      CP also indicated that information regarding “personnel matters may be used by competitors to the disadvantage and harm of CPKC”. CP has not established how the information that relates to CP speaks to the “personnel matters” of CP nor has CP provided any details as to how this type of information could be used against CP.

[55]      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).

[56]      CP has not provided sufficient representations and evidence to demonstrate that disclosing the withheld information could reasonably be expected to result in material financial loss or injury to the competitive position of CP. Any link to such foreseeable harm would seem to be diminished by the public availability of some of the information, which CP has not indicated as having caused it harm.

[57]      Transport Canada indicated that it agreed with my assessment.

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

Section 23: solicitor-client and litigation privilege

[59]      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.

[60]      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.

[61]      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.

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

[63]      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?

[64]      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.

[65]      Although CP’s lawyers were 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.

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

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

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

Subsection 24(1): disclosure restricted by another law

[69]      Subsection 24(1) requires institutions to refuse to disclose information the disclosure of which is restricted by a provision set out in Schedule II of the Access to Information Act.

Does the information meet the requirements of the exemption?

[70]      Transport Canada did not apply subsection 24(1) to any portion of the records, however, CP raised this exemption in response to my notice under section 36.3.

[71]      CP asserted that the records contain “information, including secret process and trade secret information, obtained by TC in CPKC’s work place under TC’s investigation powers pursuant to section 141 of the [Canada Labour] Code.”

[72]      Subsection 144(3) of the Canada Labour Code is a Schedule II provision, and would apply if the information at issue constitutes secret processes or trade secrets. CP, however, did not identify any specific information of this nature and provided no representations supporting that any of the information falls within either of these categories.

[73]      Given the mandatory nature of this exemption, the OIC sought representations from Transport Canada on this matter. Transport Canada indicated that it does not feel any of the information constitutes secret process or trade secrets, which is why it did not apply subsection 24(1) to the records.

[74]      I conclude that the information does not meet the requirements of subsection 24(1).

Outcome

[75]      The complaint is well founded.

Orders

I order the Minister of Transport to do the following:

1. Disclose the incident number withheld under paragraph 16(1)(c) on pages 52-60 and 63 of the records;
2. 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, where I have not found the same information meets the requirements of paragraph 20(1)(b); and
3. Disclose the information withheld under paragraph 20(1)(b), except the information which I have found meets the requirements of subsection 19(1) or paragraph 20(1)(b).

Initial report and notice from institution

On January 20, 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 and the Privacy Commissioner of Canada.