2015-2016 3. Court proceedings

A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government.

The Act sets out two levels of independent review. The Commissioner carries out the first review through the investigation process.

When the Commissioner concludes that a complaint is well founded and the institution does not act upon her formal recommendation to disclose records, she may, with the complainant’s consent, seek judicial review by the Federal Court of the institution’s refusal.

A complainant may also seek judicial review by the Federal Court of a government institution’s access refusal, after receiving the results of the Commissioner’s investigation.

The Act also provides a mechanism by which a “third party” (such as a company) may apply for judicial review of an institution’s decision to disclose information that the third party maintains should be withheld from a requester under the Act. In these circumstances, the Commissioner often seeks to be added as a party to provide assistance and expertise to the Federal Court.

The following summaries review ongoing cases and court decisions rendered in 2015–2016.

Ongoing cases

Commissioner-initiated proceedings

Through her investigations, the Commissioner determines, among other things, whether government institutions are entitled to refuse access to requested information based on the limited and specific exceptions to the right of access set out in the Act.

When the Commissioner finds that an exception to the right of access has not been properly applied, she informs the head of the institution that the complaint is well founded and formally recommends that the withheld information be disclosed. On occasions when the head of an institution does not agree to follow this recommendation, the Commissioner may, with the consent of the complainant, ask the Federal Court, under section 42 of the Act, to review the institution’s refusal to release the information.

Access to long-gun registry information and challenge to the constitutionality of the Ending the Long-gun Registry Act

The Information Commissioner of Canada v. The Minister of Public Safety and Emergency Preparedness (T-785-15) & The Information Commissioner of Canada and Bill Clennett v. The Attorney General of Canada (OSCJ-15-64739)
Background, “Access to long-gun registry information and challenge to the constitutionality of the Ending the Long-gun Registry Act”.

As reported in the 2014–2015 Annual Report, on May 14, 2015, the Commissioner tabled in Parliament a special report detailing her investigation of the former Minister of Public Safety’s refusal to process additional long-gun registry records that she had determined to be responsive to an access request. This special report was tabled immediately after the previous government introduced Bill C-59, the Economic Action Plan 2015 Act, No. 1, which included retroactive amendments to the Ending the Long-gun Registry Act (ELRA). These amendments to the ELRA ousted the application of the Access to Information Act to long-gun registry records and immunized Crown servants from any administrative, civil or criminal proceedings with respect to the destruction of such records (background: “Access to information: Freedom of expression and the rule of law”).

On the same day she tabled her special report, the Commissioner, with the consent of the complainant, also applied to the Federal Court for a judicial review of the Minister’s refusal to process these additional long-gun registry records. As part of these proceedings, the Commissioner succeeded in obtaining a court order directing the Minister of Public Safety and the Commissioner of the RCMP to deliver the hard drive containing the remaining long-gun registry records to the Federal Court Registry. This order has been complied with.

On June 22, 2015, the Commissioner and the complainant filed an application in the Ontario Superior Court of Justice challenging the amendments to the ELRA enacted by Bill C-59, on the grounds that these amendments unjustifiably infringe the right of freedom of expression protected in section 2(b) of the Canadian Charter of Rights and Freedoms and that, in their retroactive effects, they contravene the rule of law.

In July 2015, the Federal Court proceedings were stayed pending the outcome of the constitutional challenge currently before the Ontario Superior Court.

The Ontario Superior Court proceedings are currently under the supervision of a case management judge and the parties have agreed to a timetable to complete essential steps in preparing this litigation. As part of this process, several parties have made motions to intervene in these proceedings. These include not only a joint motion made by the Information and Privacy Commissioners of Ontario, Alberta, British Columbia, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Quebec, Prince Edward Island, Saskatchewan, the Yukon and the Manitoba Ombudsman, but also motions by the Canadian Civil Liberties Association, the Centre for Law and Democracy and the Criminal Lawyers’ Association. At the time of writing, these motions are currently before the Court.

On March 4, 2016, the current Minister of Public Safety sought the Commissioner’s consent to suspend the Ontario Superior Court proceedings in order to discuss settling this litigation, as well as the associated judicial review application in Federal Court. The Commissioner and the complainant, the applicants in the proceedings before the Ontario Superior Court, consented to suspend the case management timetable pending negotiations. These negotiations are aimed at resolving all outstanding litigation related to the complainant’s underlying access request for long-gun registry records.

Access to information: Senators’ expenses

The Information Commissioner of Canada v. The Prime Minister of Canada, (T-1535-15)

Background, “Disclosing only meaningless information”.

On September 11, 2015, the Commissioner filed an application for judicial review with the consent of the requester. This litigation is in relation to an access to information request for “any records created between March 26, 2013 to present (August 22, 2013) related to Senators Mike Duffy, Mac Harb, Patrick Brazeau and/or Pamela Wallin.”

The application was commenced following the completion of the Commissioner’s investigation in July 2015 into the requester’s complaint that the Privy Council Office (PCO) had improperly applied exemptions under the Act to the 27 pages of records at issue.

Over the course of the Commissioner’s investigation, PCO relied on the exemptions found at subsection 19(1) (“personal information”), paragraph 21(1)(a) (“advice and recommendations”), and section 23 (“solicitor-client privilege”) of the Act.

At the conclusion of her investigation, the Commissioner found that PCO had failed to satisfy its onus of establishing that these exemptions applied. As a result, the Commissioner concluded that the complaint was well-founded and recommended to the Prime Minister at that time, the Right Honourable Stephen Harper, as head of PCO, that significant additional disclosure should be provided.

The Prime Minister did not follow the Commissioner’s recommendation and instead informed the Commissioner that only a small portion of the information recommended for disclosure would be released, which included the following types of information that had been previously redacted:

signatures of public servants who had consented to their signatures being disclosed;
date stamps;
letterhead elements;
Government of Canada emblems;
the words “Dear” and “Sincerely”; and
Document titles: “Memorandum for the Prime Minister”, “Memorandum for Wayne G. Wouters” and “Decision Annex.”

PCO continued to refuse all disclosure of the substance of the records.

The Commissioner’s application challenges the Prime Minister’s decision to refuse to disclose the responsive records based on the claimed exemptions for personal information, advice and recommendations and solicitor-client privilege. The Commissioner maintains that the Prime Minister erred in relying on these exemptions when refusing access to the requested information.

With respect to the section 19 exemption, the Commissioner asserts that information exempted as personal information constitutes a discretionary benefit of a financial nature, which is an exception to the definition of personal information pursuant to paragraph 3(l) of the Privacy Act.

The Commissioner also maintains that the alleged personal information should be disclosed as the public interest in disclosure outweighs any invasion of privacy.

In terms of the application of the exemption for advice and recommendations, the Commissioner argues that the information does not, in fact, constitute advice or recommendations.

With respect to section 23, the Commissioner maintains that some of the information exempted as solicitor-client privilege does not constitute legal advice privilege and therefore should not be exempted from disclosure under that section.

Finally, as sections 21 and 23 are discretionary exemptions, the Commissioner takes the position that the discretion to refuse access based on these exemptions was not exercised in a reasonable manner.

This case is ongoing.

Withholding minutes of a public board

The Information Commissioner of Canada v. Toronto Port Authority (T-1453-14) Background, “The Information Commissioner filed an application for judicial review in Information Commissioner of Canada v. Toronto Port Authority” & “Withholding minutes of a public board”.

In June 2014, the Commissioner initiated a judicial review of the Toronto Port Authority’s refusal to disclose large portions of the minutes of a 2008 meeting of its audit committee. The institution maintained that releasing the minutes would harm the organization and reveal confidential third-party information. As a result, sections 18 and 20 applied to withhold the minutes. The Commissioner disagreed.

In her investigation, the Commissioner found that the institution did not exercise its discretion reasonably, since there was no indication that it had considered the facts in favour of disclosure, such as the passage of time and that much of the information was in the public domain. She was of the view that the minutes should be disclosed in their entirety.

Before the Federal Court, the institution claimed that section 21 (advice and recommendations to government) applied to the minutes. At issue, also, is whether the Toronto Port Authority can rely on an exemption claimed post the Commissioner’s investigation.

The hearing took place on October 19, 2015 and the parties await a decision.

Complainant-initiated proceedings

After the Commissioner reports to the complainant the results of her investigation of an institution’s decision to refuse access to requested records, the complainant may be of the view that more information should be disclosed. A complainant is entitled to ask the Federal Court, under section 41 of the Act, to review an institution’s refusal to disclose information. A precondition for such a judicial review is that the Commissioner has completed an investigation of a refusal of access.

Raising mandatory exemptions after the Commissioner’s investigation is complete

James Paul in his Capacity as President of Canada Defence Construction (1951) Limited and the Attorney General of Canada v. UCANU Manufacturing Corporation,(A-414-15)

This litigation relates to an access to information request made by the President of UCANU Manufacturing Corporation (UCANU) in July 2012 for information relating to a contract between the Respondent, Defence Construction Canada (DCC) and a third party construction and engineering group involved in a public procurement process for construction of a maintenance hangar in Trenton, Ontario.

In September 2012, DCC provided UCANU with access to approximately 3,650 pages in response to the request. Remaining documents, however, would not be released until third party consultations were completed with the other construction and engineering group as required under sections 27 and 29 of the Act.

In November 2012, after consulting with the third party, DCC released 17 additional pages to UCANU, with information exempted under subsection 19(1) (personal information) and paragraph 20(1)(b) (confidential commercial information of a third-party).

The requester complained about the application of these exemptions to the Commissioner, who began an investigation and determined that the exemptions were not correctly applied in some instances. As a result, DCC reconsidered its position and provided UCANU with further disclosures. In light of DCC’s further releases, the Commissioner issued her investigation report in February 2014, concluding that DCC had properly applied the exemptions under sections 19 and 20.

After the conclusion of the Commissioner’s investigation, UCANU filed an application for judicial review before the Federal Court.

UCANU challenged the following remaining redactions:

a covering letter and portions of a joint venture agreement amongst the constituents of the third party construction and engineering group;
the signatures of employees of the third party construction and engineering group who signed the Joint Venture Agreement;
the name and signature of a witness to the Tender Form signed by the third party construction and engineering group and submitted in the course of DCC’s tender process for the contract for construction of a maintenance hangar.

The Commissioner did not seek leave to be an added party in this review before the Federal Court.

The Federal Court issued its decision in August 2015 (UCANU Manufacturing Corp. v. Defence Construction Canada, 2015 FC 1001). The Court agreed with the Commissioner’s finding that DCC was authorized to refuse to disclose the name and signatures at issue as personal information. The Court also found that the institution’s exercise of discretion not to disclose any of the personal information was reasonable. The parties had only learned that two of the employee signatures were publicly available after the review application before the Federal Court had been filed.

Differing from the Commissioner’s investigation findings, the Court found that the test for confidentiality under paragraph 20(1)(b) had not been met due to a lack of evidence. Therefore, DCC was ordered to disclose the contents of the joint venture agreement and the covering letter.

Mandatory exemption raised by DCC post-investigation

In addition to hearing arguments with respect to sections 19 and 20 of the Act, the Court was also asked to address a new argument that was raised by DCC five days before the hearing. DCC wanted to raise an additional exemption under section 24 of the Act that incorporates by reference section 30 of the Defence Production Act (DPA). Section 30 of the DPA mandates that no information with respect to an individual business that has been obtained under or by virtue of the DPA shall be disclosed without the consent of the person carrying on that business. If validly raised, the exemption would serve to withhold all the documents at issue.

Based on the current state of the jurisprudence, the Court concluded that DCC was not entitled to rely on the additional statutory exemption.

On September 23, 2015, the government filed a Notice of Appeal of the Federal Court’s decision. In its appeal, the sole issue raised was that the judge erred in refusing to allow DCC to rely on the mandatory exemption before the Federal Court.

The Court of Appeal has granted the Commissioner intervener status in these proceedings.

The Commissioner’s arguments before the Court of Appeal set out the broader implications of this case for requesters, the role of the Information Commissioner under the Act, and the access to information regime.

While the Commissioner recognizes that there may be instances where it is appropriate for the Court to consider an additional mandatory exemption raised post-investigation, this should only be allowed in exceptional circumstances.

As a general rule, the Commissioner argues that all exemptions to the right of access relied upon by institutions must be raised prior to the completion of her investigation. Permitting institutions to raise exemptions after her investigation, as a matter of course, opens the door to abuse, denies requesters the right to know the full bases for an institution’s refusal of access, obviates the intended role of the Commissioner as the first level of review as set out under the Act and denies requesters the benefit, at the discretion of the Commissioner, of the Commissioner appearing in Court in their stead or as a supporting party.

To assist the Court, the Commissioner offered the following framework to assess circumstances where an institution should be permitted to raise additional mandatory exemptions post-investigation:

Could the government institution have reasonably raised the mandatory exemption sooner, for example:
1. in the notice to the requester under subsection 10(1) of the Act where access was initially refused;
2. at any time during the Information Commissioner’s investigation;
3. at the earliest possible occasion in the court proceedings.
What is the underlying interest that the mandatory exemption seeks to protect and what are the consequences of disclosing the records at issue?
What is the prejudice to the requester and their access rights if the new exemption is considered at that stage of the proceedings?
Will allowing new issues to be raised at that stage of the proceedings unduly delay the hearing of the application and consequently, access to information for the requester?
Is it in the interests of justice to allow the exemption to be raised?

Based on this framework, the Commissioner submitted that DCC did not meet any of the criteria that would justify raising the additional exemption.

Finally, with respect to the mandatory exemption at issue, the Commissioner argued that, in any event, DCC did not provide sufficient evidence to meet its burden that the exemption applies.

The Respondent, UCANU has not participated in the appeal. The parties await a hearing date.

Third-party-initiated proceedings

Section 44 of the Access to Information Act provides a mechanism by which a “third party” (such as a company) may apply for judicial review of an institution’s decision to disclose information that the third party maintains should be withheld under the Act.

Notices of any applications third parties initiate under section 44 are required to be served on the Commissioner under the Federal Courts Rules. The Commissioner reviews these notices and monitors steps in these proceedings through information available from the Federal Court Registry. The Commissioner may then seek leave to be added as a party in those cases in which her participation would be of assistance to the Court.

Intervening in third-party-initiated proceedings is an integral part of the Commissioner’s oversight function. In a recent order from the Federal Court granting the Commissioner leave to be added as a party in a third-party initiated proceeding, Justice Russell commented on the value the Commissioner adds to these proceedings: “the Commissioner's knowledge and background of the statute [the Access to Information Act], its jurisprudence and the legal issue in this case will be extremely helpful to the Court in dealing with this dispute.” (Porter Airlines Inc. v. the Information Commissioner of Canada (23 March 2016), T-1491-15).

In 2015–2016, the Commissioner sought and obtained leave to be added as a party to a number of applications for judicial review initiated under section 44, as follows.

Personal information of private sector employees

Husky Oil Operations Limited v. Canada-Newfoundland Offshore Petroleum Board, (T-1944-15)

On November 18, 2015 Husky Oil filed a Notice of Application in which it opposed the Canada–Newfoundland and Labrador Offshore Petroleum Board’s release of requested records claiming that the records contain the personal information of its employees and should therefore be exempted under section 19 of the Act. Husky’s Notice of Application however, neither reproduces the access request nor does it describe what the requested records otherwise relate to. The Commissioner was added as a party to this proceeding and the case is ongoing.

Note that this same issue is currently being appealed before the Federal Court of Appeal in Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2016 FC 117 (see “Personal information of private sector employees (2)”).

Reversing the burden in third party applications

Apotex Inc. v. Minister of Health, et al., (T-1511-15, T-1782-15, and T-1783-15)

On September 8, 2015 and October 22, 2015, Apotex filed a total of three applications before the Federal Court for judicial review of Health Canada’s decision to release records in response to three access to information requests. The records at issue all relate to a New Drug Submission by Apotex to Health Canada. Apotex objects to the release of the records on the basis that they contain confidential information and should be exempted under subsection 20(1) of the Act.

After filing its initial application, Apotex also wrote to the Court stating that it was considering bringing a motion to reverse the usual order of the presentation of evidence in a section 44 judicial review. This reversal would require the Respondent, Health Canada, to be the first party to file its affidavit materials instead of Apotex, the Applicant. Concerned that this potential reversal of order could serve to transfer the burden of proof from Apotex, the party objecting to disclosure, to the government institution, the Commissioner sought leave to be an added party to all three proceedings on February 29, 2016. Apotex opposed the Commissioner’s motion.

On April 4, 2016, the Court granted the Commissioner added party status in the proceedings. Apotex is appealing the order that granted the Commissioner this status.

The case is ongoing.

Airline safety management systems (1)

Porter Airlines Inc. v. Attorney General, (T-1491-15)
Background on related Federal Court case, “Porter Airlines Inc. v. Attorney General (T-1768-11)” & “Third-Party Information (2)”.

On September 4, 2015 Porter Airlines filed an application challenging Transport Canada’s decision to release certain records concerning Porter’s safety management system. Porter claims that the records should be withheld under section 20 of the Act.

These same records were the subject of a previous judicial review application commenced by Porter in 2011. In Porter Airlines Inc. v. Canada (Attorney General), 2013 FC 780, the Court held that a third decision of Transport Canada relating to the release of records was void and of no effect as Transport Canada was not authorized to make that decision outside of the process established under sections 27 to 29 of the Act. The Court affirmed the principle that a government institution can only change its initial position on disclosure upon two triggering events: either on receiving the Information Commissioner’s recommendation to disclose records that the institution had originally decided were exempt from disclosure or when before the Court after the commencement of a section 44 review. Following the Court’s decision, Transport Canada released a severed version of the records to the requester on September 5, 2013, in accordance with the institution’s original decision on disclosure.

Those records became the subject of an investigation by the Information Commissioner. On September 16, 2013, the requester complained to the Commissioner regarding Transport Canada’s release. In 2015, the Commissioner provided to Transport Canada her findings and recommendations. The decision to disclose further records that is the subject of this judicial review application was made by Transport Canada following receipt of the Commissioner’s report.

On March 23, 2016, the Commissioner was added as a party to the current judicial review proceeding. In granting the Commissioner’s motion to be added as a party, the Court noted that there are no time-limits under paragraph 42(1)(c), therefore granting the Commissioner party status at that stage in the proceedings could not be said to be contrary to the Act.

The case is ongoing.

Airline safety management systems (2)

Porter Airlines Inc. v. Attorney General, (T-1296-15)
Background on related Federal Court case, “Airline safety management systems (1)” & Porter Airlines Inc. v. Attorney General of Canada et al., 2013 FC 780.

Porter Airlines filed an application for judicial review in August 4, 2015, asking the Federal Court to set aside a decision by Transport Canada to release information relating to its safety management systems.

Porter is taking the position that some portions of these records must not be disclosed pursuant to section 20 of the Act. Porter further proposes that portions of the records can be severed from the exempted records and released, pursuant to section 25 of the Act.

On February 24, 2016, the Commissioner received notice from Transport Canada that it had notified the requester of a change in its position on disclosure. Where Transport Canada had previously believed some portions of the records could be disclosed, the institution now intends to take a new position before the Court that those portions should not be disclosed pursuant to section 20 of the Act. This change of position was taken pursuant to the procedure set out by the Court in Porter Airlines Inc. v. Canada (Attorney General), 2013 FC 780.

On March 11, 2016, the Commissioner brought a motion to be added as a party to the proceedings. The Federal Court granted the Commissioner’s motion, which was unopposed, on April 4, 2016.

The case is ongoing.

Intervention before the Supreme Court of Canada

The Commissioner closely monitors all cases with potential ramifications on the right of access to information and may seek leave to intervene in proceedings with potential impact on that right.

The Supreme Court of Canada to decide if Alberta’s Information and Privacy Office can review records to which solicitor-client privilege applies.

Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary, (SCC 36460)

The Commissioner intervened in 2015–2016 in an appeal before the Supreme Court of Canada that is of great importance for access to information across Canada. The appeal is of a decision of the Alberta Court of Appeal which found that the Alberta Information and Privacy Commissioner could not review records in which solicitor-client privilege was claimed.

The litigation relates to a request made under Alberta’s Freedom of Information and Protection of Privacy Act (FOIP Act) to the University of Calgary for records concerning the requester. The University disclosed some records, but refused to disclose other records on the basis of solicitor-client privilege. The individual then filed a complaint to the Information and Privacy Commissioner of Alberta.

During the investigation of the complaint, the Alberta Commissioner’s delegate noted that the University had not yet provided sufficient evidence to allow him to make a determination on the applicability of the claim of privilege. Under Alberta’s Privacy Act">FOIP Act, the Alberta Commissioner may, when investigating complaints, require public bodies to produce records “[d]espite any other enactment or any privilege under the law of evidence.” The delegate therefore issued a notice to the University to produce the records at issue. The University refused to comply with the notice and contested the Alberta Commissioner’s authority to issue such a notice in the Alberta Court of Queen’s Bench.

While the lower court upheld the Commissioner’s order, the Alberta Court of Appeal thereafter found that the Commissioner’s empowering provision was not sufficiently explicit to include records over which solicitor-client privilege was claimed, and therefore quashed the notice to produce.

On October 29, 2015, the Alberta Commissioner was granted leave to appeal this decision to the Supreme Court of Canada.

Information and privacy commissioners throughout Canada successfully sought to intervene in this appeal. The Information Commissioner of Canada and the Privacy Commissioner of Canada led a group of information and privacy commissioners as joint interveners before the Supreme Court of Canada in this case. All of these commissioners’ statutes contain substantially similar provisions that set out their investigative powers to require production of records during their investigations in order to verify claims of exemptions. The information and privacy commissioners argued that the Court should consider these similar provisions, and that regardless of the approach to statutory interpretation that is applied, the phrases in the commissioners’ statutes are sufficiently explicit to enable them to require production of records over which solicitor-client privilege is claimed as a basis for refusing disclosure to requesters.

The hearing took place on April 1, 2016 and the parties await a decision.

Decisions

The following decisions were rendered in 2015–2016 in matters related to access to information.

Commissioner-initiated proceedings

Number of individuals on Canada’s “no-fly list”

Information Commissioner of Canada v. Minister of Transport Canada, 2016 FC 448
Background, “Injury to international affairs” & “Number of individuals on Canada’s “no-fly list”.

See “Federal Court decision on disclosure of number of individuals on Canada’s ‘no-fly list’.”

Limiting the application of solicitor-client privilege

Information Commissioner of Canada v. Minister of Employment and Social Development, 2016 FC 36

In November 2015, the Commissioner applied for judicial review of Employment and Social Development Canada’s (ESDC) refusal under section 23 to release portions of a discussion paper dating from some 25 years ago that responded to a request about the application rate by former spouses for a Division of Unadjusted Pensionable Earnings (DUPE) under the Canada Pension Plan. The record was titled “Erroneous Advice Discussion Paper” and it reviewed the development of DUPE and possible governmental actions including numerous options.

ESDC initially refused to disclose the discussion paper, claiming that the entire record was subject to solicitor-client privilege. During the course of the Commissioner’s investigation, ESDC agreed to sever and disclose parts of the record.

The Commissioner was of the view that ESDC was still withholding information which did not fall within the scope of solicitor-client privilege, and therefore recommended that ESDC release further parts of the discussion paper. ESDC accepted the recommendation in part, but maintained the claim of privilege over other parts of the record that the Commissioner had recommended be disclosed.

As a result, the Commissioner made an application for review to the Federal Court. The Court was asked to review the applicability of solicitor-client privilege to specific parts of the discussion paper.

The Federal Court released its public reasons for judgment in January 2016. It found that the implications of one of the options discussed constituted policy advice stemming from legal opinions received by ESDC. As the court was of the view that disclosing this portion of the record would provide clues about privileged communications, it determined that this part of the paper was subject to solicitor-client privilege. In relation to the summary section, the Court found that disclosing this part of the record would not reveal any privileged information or give any clues on such information and ordered that it be disclosed. For various other segments, the Court found that four of the five segments at issue were not subject to privilege and ordered that they be disclosed.

The Court also found that the evidence was sufficient to satisfy it that ESDC had exercised its discretion in a reasonable manner in refusing to disclose the parts which were privileged.

The parties did not appeal the Federal Court’s decision.

Third-party-initiated proceedings

Personal information of private sector employees (1)

Suncor Energy Inc. v. Canada–Newfoundland and Labrador Offshore Petroleum Board et al., 2016 FC 168
Background, “Personal information of private sector employees (1)”.

In June 2014, Suncor Energy Inc. filed an application for judicial review challenging a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board (“the Board”) to disclose records that contained the names, telephone numbers and business titles of Suncor employees, as well as other information.

On July 10, 2014, the Court granted the Commissioner added party status in the proceedings. The Commissioner took the position that the Board reasonably exercised its discretion under paragraph 19(2)(b) of the Act in disclosing the names and business contact information of employees whose affiliation with Suncor was publicly available on the Internet.

A hearing took place before the Federal Court on August 13, 2015 in St. John’s, Newfoundland and Labrador. On February 9, 2016 the Federal Court issued its confidential reasons for decision (Suncor I). Public reasons were released on April 5, 2016.

The Court found that the Board had reasonably exercised its discretion in deciding to disclose the names of three Suncor’s employees, their phone numbers and business titles under subsection 19(2) of the Act because their association with Suncor was in the public domain at the time that the access request was made through their profiles posted on LinkedIn, a social media network targeting professionals. Therefore, there was no basis to withhold the business contact information of those three employees under subsection 19(1). However, the Court ordered that the name, telephone number and fax number of other Suncor employees, whose affiliation with the company were not in the public domain, be redacted under subsection 19(1) because they constituted “personal information” and were protected from disclosure.

The Court also found that Suncor had not demonstrated that the records should be withheld under paragraph 20(1)(b) of the Act because they contained confidential financial, commercial, scientific, or technical information. Nor had Suncor established, under paragraph 20(1)(d), that the records should be withheld because they contained information, the disclosure of which could reasonably be expected to interfere with contractual or other negotiations.

The Court also confirmed that the Act is paramount to the Canada-Newfoundland Atlantic Accord Implementation Act (the Accord Act),finding that the Accord Act takes precedence only over other legislation that applies to offshore areas of the province of Newfoundland and Labrador and the regulation of those offshore areas. The Court went on to determine that Suncor could not claim the limited privilege provided by subsection 119(2) of the Accord Act against the disclosure of geological and geophysical reports that were responsive to the access request. The Court found that Suncor had not shown that it had met the statutory criteria set out under subsection 119(2) for entitlement to the privilege against disclosure of the requested information.

On March 10, 2016, Suncor appealed the decision to the Federal Court of Appeal. The Commissioner remains an added party to the appeal proceeding.

Suncor has filed two additional Notices of Application for judicial review of decisions of the Board to release personal information of Suncor employees in response to other access to information requests (T-1257-15 and T-562-16). The Commissioner has not yet sought party status to either of these proceedings. The Court granted a stay in both of these proceedings until a final determination in Suncor Energy Inc. v. Canada–Newfoundland and Labrador Offshore Petroleum Board.

Personal information of private sector employees (2)

Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2016 FC 117
Background, “Personal information of private sector employees (2)”.

In June 2014, Husky Oil filed an application for judicial review asking the Federal Court to set aside a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board (“the Board”) to release the names and business titles of two Husky employees because those names and titles were publicly available on the Internet. Husky claimed that subsection 19(1) of the Act applied to withhold disclosure of those names and titles. The requested records related to Husky's request for geophysical reports and related correspondence between the Board and Husky employees.

The Commissioner was added as a party to the proceeding on July 10, 2014. The case was heard on November 10, 2015 before the Federal Court in St. John’s, Newfoundland and Labrador.

The Federal Court issued its decision on February 2, 2016.

The parties agreed that Husky’s employees’ names and position at Husky were publicly available in Zoominfo, an Internet database of business contacts, at the time that the access request was made. The Court determined that Husky had not advanced any evidence or analysis as to why the Board should not release the information. Accordingly, the Court found that the Board had the discretion to disclose the records under subsection 19(2) of the Act. The Court dismissed the judicial review with costs.

On March 03, 2016, Husky appealed the decision to the Federal Court of Appeal. The Commissioner remains an added party to the appeal proceedings.

Contract and tender information

Recall Total Information Management Inc. v. Minister of National Revenue, 2015 FC 848
Background, “Contract and tender information”.

On September 29, 2015, the Federal Court issued its decision in this application, brought by the third party, Recall Total Information Management, Inc. (“Recall”) to challenge the Canada Revenue Agency’s (CRA) decision to disclose information in a contract amendment related to Recall and the storage of CRA’s tax files, which Recall considered ought to be exempt from disclosure under section 20 of the Act. The Commissioner was an added party to this proceeding.

Recall had successfully tendered for a contract relating to records management services for CRA, but it then became apparent that CRA had needs which were not addressed in the initial contract. The parties therefore agreed to a contract amendment. The information at issue in the proceeding included the new price in the contract amendment and the amended statement of work, which included a step-by-step process to scan 2D barcodes into Recall’s computer base.

In relation to the step-by-step 2D scanning process, the Court found that Recall had not shown that the information was a trade secret or that it was confidential business information to which the exemption provided by paragraph 20(1)(b) of the Act applied. However, the Court found that Recall had made out its case that disclosure of the information could reasonably be expected to prejudice its competitive position, so that the paragraph 20(1)(c) exemption applied to the information. The Court stated: “Release of certain parts of the Records would undermine Recall’s position in future negotiations with CRA and others because of the advantage competitors would gain from disclosure of how Recall addressed CRA’s problems. Further, release of information on the process would allow competitors (of which there is a small number – 1 or 2) to recreate the technology developed by Recall’s R&D work.”

In relation to the price of the contract amendment, the Court found that Recall had not shown that an exemption properly applied.

Personnel rates for government contracts

Calian Ltd. v. Attorney General of Canada and the Information Commissioner of Canada, 2015 FC 1392
Background, “Personnel rates for government contracts”.

On December 18, 2015, the Federal Court released its public reasons granting the third party, Calian Ltd.’s, application for judicial review and finding that paragraphs 20(1)(c) and (d) of the Act required that Public Services and Procurement Canada (PSPC) (formerly Public Works and Government Services Canada) exempt Calian’s personnel rates from disclosure.

Calian had argued before the Federal Court that the personnel rates contained in its contract with PSPC should not be disclosed as per section 20, because they contained confidential third-party information which, if released, would cause harm to the company. Calian also claimed that PSPC should have exercised its discretion to refuse to disclose these rates because disclosure would interfere with the government’s contractual negotiations and result in undue benefits to Calian’s competitors.

The Attorney General argued that the disclosure-of-information clause in the contract meant that the information must be disclosed to the requester. The Commissioner agreed with the Attorney General, arguing that the claims of harm set out in paragraphs 20(1)(c) and (d) were not sufficiently substantiated.

The Federal Court found that Calian met the requirements of the exemptions found at paragraphs 20(1)(c) and (d) of the Act. The Court noted that the personnel rates were “the most significant factor” in Calian’s successful bid and crucial to its competitive position. Emphasis was also placed on what the Court characterized as the history of dealings between Calian and the government. In the past, the relevant government institution had refused to disclose information analogous to the personnel rates at issue.

Ultimately, the Court was not persuaded that the disclosure clause relied on by PSPC and the Attorney General provided consent to disclose the personnel rates. The Court arrived at this conclusion based on what it found to be uncontradicted evidence by Calian’s Vice President that Calian had no reason to believe the disclosure clause gave consent to release its personnel rates. Furthermore, given the history of dealings wherein previous analogous disclosure clauses were not relied on to release similar rate information, the Court concluded that Calian’s evidence was credible and reliable.

The Court ordered that the decision to disclose be remitted to PSPC for re-determination in light of subsection 20(5) of the Act, which states that the government institution may disclose any information falling under subsection 20(1) with the consent of the third party.

The Attorney General and the Commissioner have appealed the Federal Court decision to the Federal Court of Appeal. The case is proceeding and a hearing date for this matter has not yet been set.

Commercial correspondence not warranting third party protection

Brewster Inc. v. The Minister of the Environment as the Minister for Parks Canada and the Attorney General of Canada and the Information Commissioner of Canada, 2016 FC 339
Background, “Breach of procedural fairness”.

On March 21, 2016, the Federal Court issued its decision in this application, brought by the third party, Brewster Inc., for a review of the decision by Parks Canada to disclose certain communications related to the proposal and approval process for Brewster’s Glacier Discovery Walk in Jasper National Park.

Brewster claimed in its application that the communications should be exempted under paragraphs 20(1)(b), (c), and (d) of the Act. The Commissioner, who was an added party to these proceedings, opposed the application of these sections.

The Federal Court agreed that the third party exemption should not be applied to the records at issue. With respect to paragraph 20(1)(b), the Court expressed that it was “too broad an argument” to characterize the records, which were primarily correspondence, as commercial just because the third party was engaged in a proposed commercial enterprise with Parks Canada. Administrative details, in the Courts view, were not the type of information contemplated by paragraph 20(1)(b). Nor had Brewster demonstrated that the information was treated as confidential, a key factor to establishing protection under paragraph 20(1)(b).

Under paragraph 20(1)(c), the Court found that Brewster was unable to demonstrate that there was a reasonable expectation of probable harm if the information were to be released. The information at issue dealt primarily with scheduling meetings and other related logistics.

Lastly, under paragraph 20(1)(d), the Court found that Brewster had provided no evidence of actual contract negotiations that could be harmed by disclosure, and noted that “mere assertions of fears [were] insufficient” to establish such harm. As such, 20(1)(d) could not be applied.

In the end, the Court was of the view that only section 19, the exemption for personal information, could be applied to protect names and email addresses in the responsive records. The Commissioner had identified this information as potentially requiring protection.