Section 20(2),(5)(6): Disclosure Authorized in Public Interest

The Provisions

  • 20(5)     As noted above, when there is a possibility that the third party would consent to disclosure, it is not sufficient for the head of the institution to merely state that they just don't know if the third party would consent. In such a case, he must take positive actions to determine whether the third party would consent: see also X v. Minister of National Defenceand Ruby v. Canada (Solicititor Genral, R.C.M.P.).12
  • 20(6)     In Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.) (appl'd Hunter v. Minister of Consumer and Corporate Affairs (1990), 35 F.T.R. 75 (F.C.T.D.)) during a review under s. 44 of a decision to disclose meat audit inspection reports, the trial judge found that even if the records were subject to exemption under subsection 20(1), their disclosure would be justified under subsection 20(6). The Federal Court of Appeal however held that the trial judge had erred in so concluding, noting that since there was nothing in the record to indicate that the head of the government institution had exercised his discretion under subsection 20(6), it would be improper for the Court to exercise this discretion in his stead.

Preliminary Matters 

Ontario:

(Order # 12)

  • The section cannot be used by people trying to assert only private interests

(Orders # 47, 55, 68, 123, 196)

  • The party asserting the compelling public interest override bears the burden of proof

(Orders # 24, 61, 68, 72, 123, 124, 149, 159, 164, 180, 183, 196)

  • To invoke the override, there must be a compelling public interest that clearly outweighs the purposes of the exemption, as distinct from the value of disclosure to the requester of the particular record in question. The burden regarding applicability of this section falls on the individual seeking the application

(Orders #123, 124)

  • Where extensive public hearings are held as a result of a Royal Commission of Inquiry, the public's interest in the subject matter of the Commission's review has been adequately served such that s. 23 would not apply.

(Order # 128)

  • The need for public debate in and of itself is not sufficient to outweigh the purpose of the exemption

(Order # P-241)

  • While the burden of establishing the applicability of s. 23 to particular records is on the applicant, this burden is not absolute. Where the applicant is not familiar with the contents of the records, the Commissioner will review them with a view to deciding whether s. 23 applies.

 

Table of Authorities

Overrides in general

Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47, 53 D.L.R. (4th) 246 (C.A.).

Goguen v. Gibson, [1984] 2 F.C. 463, (January 10, 1984) A-616-83 (F.C.A.).

Information Commissioner v. Minister of Employment and Immigration, [1986] 3 F.C. 63 (T.D.).

Sutherland v. Canada (Minister of Indian and Northern Affairs et al., (May 6, 1994), (T-2573-93) (F.C.T.D.).

X v. Minister of National Defence, [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.).

Ruby v. Canada (Solicititor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, (F.C.A.)

20(2)

Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

20(5)

X v. Minister of National Defence, [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.)

20(6)

Canada

Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.).

Hunter v. Minister of Consumer and Corporate Affairs (1990), 35 F.T.R. 75 (F.C.T.D.).

Ontario

Orders #12, 24, 47, 55, 61, 68, 72, 123, 124, 149, 159, 164, 180, 183, 196, 241.

Endnotes

1. [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.). In this case, Mr. Justice Denault stated:

"With the above in mind, information must clearly fit within and not be exempted by the relevant paragraphs of section 3 of the Privacy Act or subsection 19(2) of the Act before it can be withheld. In fact, subsection 19(1) provides that in such circumstances, it 'shall' be withheld. The Act does not provide for a discretion to release information on the basis of how long ago it was obtained. It does not say that a document ought to be revealed after 30 years or if the applicant has a good reason for requesting the information. The fact that Yardley has been dead now for 35 years and the circumstances of his dismissal almost 50 years ago are simply not relevant to the question of whether personal information concerning individuals other than Yardley should be disclosed unless that individual has been dead for more than twenty years or has consented to the release of the information. I recognize the difficulty that may be presented in attempting to ascertain whether these exceptions apply. However, in my opinion, it would not be sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions apply. Rather, they should be in a position to state what activities and initiatives were undertaken in this regard." [Emphasis added].

2 Ibid

3. Competition Act, R.S.C. 1985, c. C-34, s. 2(1).

4. Consumer Packaging and Labelling Act R.S.C. 1985, c. C-38, s.2.

5. See for example Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.). See also Canada Post Corporation v. Minister of Public Works et al., (June 3, 1993), no. T-2059-91; confirmed by F.C.A. February 10, 1995), A-372-93.

6. Société de transport de la Communauté urbaine de Montréal v. Minister of Environment, [1987] 1 F.C. 610 (T.D.).

7. Ruby v. Canada (Solicitor General R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

8. Ibid.

9. Ibid

10. Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

11. Gainers Inc. v. Minister of Agriculture et al. (1987), 14 F.T.R. 133 (F.C.T.D.).

12. [1992] 1 F.C. 77, 46 F.T.R. 206 (T.D.).

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