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Transport Canada (Re), 2026 OIC 60

Date: 2026-09-03
OIC file number: 5824-01416
Access request number: A-2023-00276

Summary

The complainant alleged that Transport Canada had improperly withheld/excluded information under the following sections of the Access to Information Act:

  • Section 14 (federal-provincial affairs)
  • Subsection 19(1) (personal information)
  • Paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information)
  • Paragraph 21(1)(a) (advice or recommendations)
  • Paragraph 21(1)(b) (accounts of consultations or deliberations)
  • Section 23 (solicitor-client privilege)
  • Subsection 69(1) (Cabinet confidences)

This was in response to an access request for records related to the decision of a specific Transport Canada employee to issue a directive to Human External Cargo operators in Prairie and Northern Region to cease such operations. The complainant also alleged that Transport Canada had not conducted a reasonable search for records in response to the same access request. The allegations fall under paragraph 30(1)(a) of the Act.

Transport Canada and the third parties did not show that the third-party information met the requirements of paragraph 20(1)(b), but Transport Canada did demonstrate that the requirements of the other exemptions/exclusions were met, that it exercised its discretion reasonably and that it carried out a reasonable search.

The Information Commissioner ordered that Transport Canada disclose the third-party information. Transport Canada gave notice to the Commissioner that it would likely be in a position to comply with the order. The complaint is well founded.

Complaint

[1]The complainant alleged that Transport Canada had improperly withheld/excluded information under the following sections of the Access to Information Act:

  • Section 14 (federal-provincial affairs)
  • Subsection 19(1) (personal information)
  • Paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information)
  • Paragraph 21(1)(a) (advice or recommendations)
  • Paragraph 21(1)(b) (accounts of consultations or deliberations)
  • Section 23 (solicitor-client privilege)
  • Subsection 69(1) (Cabinet confidences)

[2]This was in response to an access request for records related to the decision of a specific Transport Canada employee to issue a directive to Human External Cargo operators in Prairie and Northern Region (PNR) to cease such operations. The allegation falls under paragraph 30(1)(a) of the Act.

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

Investigation

[4]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.

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 institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[9]I am satisfied that subsection 19(1) has been applied only to withhold personal information of identifiable individuals. In cases where the information relates to a public servant, I am also satisfied that it does not fall under any of the exceptions to the definition of personal information, as it does not relate to the individual’s position or functions (for example, the specific reason a public servant is on leave).

[10]I conclude that the information meets the requirements of subsection 19(1).

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

[11]Since the information meets the requirements of subsection 19(1), Transport Canada 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.

[12]Under paragraph 19(2)(a), Transport Canada was required to determine whether consent was provided by making reasonable efforts to seek consent from the individuals whose personal information appears in the records. Transport Canada provided detailed representations as to why it was either not reasonably possible to seek consent due to the difficulty in contacting certain individuals or would not have been appropriate due to the sensitivity of the personal information. I am satisfied that, under the circumstances, it was not reasonable for Transport Canada to seek consent from the individuals.

[13]Turning to paragraph 19(2)(b), Transport Canada was required to reasonably consider whether the personal information is publicly available. I am satisfied that the information at issue is not public.

[14]Given the nature of the withheld information, I also have no reason to believe that discretion was triggered under paragraph 19(2)(c).

[15]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 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[16]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).

[17]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?

[18]Transport Canada applied paragraph 20(1)(b) to withhold details related to third parties within a 2020 summary of Class D operations in the Prairies and Northern Region (PNR).

[19]The OIC sought representations from the two third parties pursuant to paragraph 35(2)(c) and sent notice to the third parties pursuant to section 36.3. Mustang Helicopters Inc. responded to the notice, confirming its understanding of the information at issue and stating that it had no representations to provide based on that understanding. The other third party did not respond to the request or notice.

[20]Transport Canada indicated that the requirements of the exemption are no longer met and indicated that it would release the information if ordered to do so. It explained why it applied the exemption in its response but did not provide detailed representations supporting that the requirements of the exemption are met.

[21]With respect to the first requirement of paragraph 20(1)(b), that the information be financial, commercial, scientific or technical, I accept that this requirement is met, as disclosure would reveal commercial information about the third parties’ contracts and equipment holdings.

[22]With respect to the second requirement of paragraph 20(1)(b), that the information is objectively confidential, the information must be assessed against three conditions:

  • The information must not be available from sources otherwise accessible by the public.
  • It must originate and be communicated with a reasonable expectation that it will not be disclosed.
  • It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see: Air Atonabee Ltd. v. Canada (Minister of Transport), 1989 CanLII 10334 (FC)).

[23]Although contract award information from the period in question no longer appears to be available, it seems the Government of Alberta makes such information public as a matter of course. To the extent that the withheld information was public at one time, it is not objectively confidential.

[24]Regarding the second part of the confidentiality test, it has not been demonstrated that the third parties had a reasonable expectation of confidence that this information about their contracts would not be disclosed, especially if such information was regularly made public by the provincial government.

[25]In light of the above, I conclude that information does not meet the objective confidentiality requirement of the exemption.

[26]Turning to the third requirement of paragraph 20(1)(b), I accept that the information was provided by third parties and did not originate with the federal government and as such meets this requirement.

[27]No information was provided to support that the third parties have consistently treated the withheld information as confidential, so as to meet the final requirement of the exemption.

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

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

[29]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.

[30]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.

[31]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.

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

[33]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?

[34]The withheld information consists of written exchanges of views between public servants consulting and deliberating on specific topics with the intention of coming to a decision. As such, I am satisfied that the information meets the requirements of paragraph 21(1)(b).

[35]I also considered whether the circumstances described under subsection 21(2) existed and am satisfied that the information is not a record of the reasons for or accounts of decisions that affect the rights of a person, nor does it consist of reports prepared by consultants or advisors.

[36]I conclude that the information meets the requirements of paragraph 21(1)(b).

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

[37]Since the information meets the requirements of paragraph 21(1)(b), 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.

[38]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.

[39]Transport Canada provided detailed representations describing the factors it considered in exercising its discretion, which included: the sensitivity of the information, the potential for litigation, the purpose of the exemptions, consistency with other responses to access requests and the expectation of confidentiality surrounding the exchanges. I find the factors outlined by Transport Canada to be the relevant ones and that it did not consider any irrelevant factors.

[40]I conclude that Transport Canada considered all relevant factors when it decided not to disclose the information. The exercise of discretion by Transport Canada was reasonable.

[41]Since the information meets the requirements of paragraph 21(1)(b) and I have found that discretion was reasonably exercised, I did not examine the other exemptions Transport Canada applied to the same information. Section 14 and paragraph 21(1)(a) were applied concurrently with paragraph 21(1)(b) in all instances.

Section 23: solicitor-client privilege

[42]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.

[43]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.

[44]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?

[45]I am satisfied that the withheld information consists of communications between Transport Canada and its counsel for the purposes of seeking legal advice, or that disclosure would reveal the nature of legal advice sought by Transport Canada.

[46]Transport Canada confirmed that in cases where section 23 was applied on the same page as other exemptions, the exemption was applied only to the references to seeking legal advice on specific topics.

[47]The complainant identified instances where the same information withheld under section 23 appears to have been released in response to other access requests. Transport Canada explained that it received and processed over 400 access requests for similar subject matter in a short period of time. Transport Canada cross referenced many of these requests during the investigation and confirmed that the information was withheld consistently, but conceded that with such a large volume of requests being processed, errors were likely made. Transport Canada indicated that any disclosure of the information withheld under section 23 in response to this request would have been inadvertent.

[48]I am satisfied that inadvertent disclosure is not a waiver of solicitor-client privilege and no evidence was provided that Transport Canada consistently or widely released any information over which it has claimed section 23 in response to this request.

[49]I conclude that the information meets the requirements of section 23.

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

[50]Since the information meets the requirements of section 23, 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.

[51]Transport Canada provided detailed representations on its exercise of discretion under section 23, which included the harm that could result from waiving its privilege and the public interest in disclosure. I find the factors considered by Transport Canada are the relevant ones.

[52]I conclude that Transport Canada considered all relevant factors when it decided not to disclose the information. The exercise of discretion by Transport Canada was reasonable.

Subsection 69(1): Cabinet confidences

[53]Under subsection 69(1), the right to access records under Part 1 of the Access to Information Act does not apply to confidences of the King’s Privy Council for Canada (Cabinet confidences) (for example, memoranda to Cabinet, discussion papers presenting background explanations, analyses of problems or policy options for consideration by the Cabinet in making decisions, and draft legislation, as set out in paragraphs 69(1)(a) to (g)).

[54]However, under subsection 69(3), the right to access records does apply to Cabinet confidences that are more than 20 years old and to discussion papers when the decisions to which they relate have been made public or, when they have not, four years have passed since the decisions were made.

Does the information meet the requirements of the exclusion?

[55]I cannot review information to which Cabinet confidence exclusions have been applied, as was the case on pages 59 and 86 of the response.

Access to Information and Privacy Offices within government institutions are required to consult with their legal counsel in all instances where information that may qualify as Cabinet confidences has been identified in response to a request under the Act.

Transport Canada consulted its legal counsel for review of its application of section 69 and confirmed the exclusion of the information pursuant to paragraph 69(1)(g) re (f), which excludes draft legislation.

None of the exceptions described in subsection 69(3) apply, as paragraph 69(1)(b) was not invoked and the information is less than 20 years old.

I conclude that the information meets the requirements of subsection 69(1).

Transport Canada 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.

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.

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?

The OIC examined the responses of the Offices of Primary Interest (OPIs) to determine whether they had fulfilled their obligations under the Act to identify records relevant to the access request, under their control. The OPIs tasked with searching for relevant records in this case were Safety & Security and PNR, which I am satisfied are the OPIs most likely to hold records responsive to this request.

The investigation revealed that the OPIs searched for records in the appropriate repositories, which included personal drives, shared drives and handwritten records. The OPIs provided the records to the Access to Information and Privacy unit for processing.

[56]The complainant made detailed representations as to why the search for records may not have been reasonable or complete. The complainant provided the names of individuals likely to hold records, and the investigation confirmed that the OPIs corresponding to all of the relevant individuals were part of the search for records.

[57]The complainant identified information within the response that suggests documents are missing. Item 32 in the table on page 142 indicates “CASI routes all documents to TTL. Detail rationale for refusal in checklist comments section and insert rationale for refusal into denial letter” with a “Date Complete” of March 25, 2020. Subject matter experts confirmed that item 32 does not imply that additional associated records exist in all cases, and that in this case, no additional relevant records exist.

[58]I conclude that Transport Canada conducted a reasonable search for records.

Outcome

[59]The complaint is well founded.

Order

I order the Minister of Transport to disclose the third-party information on pages 7-8 of the response.

Initial report and notice from institution

On July 28, 2026, I issued my initial report to the Minister of Transport setting out my order.

On August 25, 2026, Transport Canada’s Manager of Access to Information and Privacy gave me notice that Transport Canada would likely be in a position to implement the order.

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

Review by Federal Court

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

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