2013-2014 3. Court proceedings
A fundamental principle of the Access to Information Act is that decisions on disclosure should be reviewed independently of government.
In the case of an access refusal, the Act sets out two levels of independent review. The first review is carried out by the Commissioner 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.
The Commissioner closely monitors all cases with potential ramifications on the right of access to information and may seek leave to participate in proceedings with potential impact on that right. This includes cases in which a third party has challenged an institution’s decision to disclose requested information.
The following summaries review ongoing cases and court decisions rendered in 2013–2014.
Ongoing cases
1. 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.
The scope of personal information
Information Commissioner of Canada v. Minister of Natural Resources (T-1257-13)
As reported in her 2012–2013 annual report, the Commissioner investigated a complaint from a business owner about Natural Resources Canada’s (NRCan) refusal to release the names, professional titles and basic professional contact information of individuals working for non-government entities, who may have received data about the complainant’s business from NRCan (see, “Basic business information of third parties”).
NRCan had refused access to this information based on the exemption in the Act for “personal information” (subsection 19(1)). The Commissioner found that NRCan had not shown that the exemption properly applied. On February 26, 2013, she sent a letter to the Minister of Natural Resources recommending that the information in question be disclosed. However, the Minister declined to implement this recommendation.
On March 28, 2013, the Commissioner reported the results of her investigation to the complainant and indicated that she would, with his consent, apply to the Federal Court for a review of the Minister’s refusal.
The complainant only provided his consent on June 10, 2013, which was beyond the 45-day time limit within which an application for judicial review ought normally to be commenced by the Commissioner under the Act. The Commissioner brought a motion for leave to initiate the proceeding beyond the 45-day time limit, which the Court granted on July 18, 2013.
The Commissioner’s application on the merits was heard on March 27, 2014, and the matter is now under reserve.
Limits of solicitor-client privilege
Information Commissioner of Canada v. Minister of Health (T-1904-13)
Health Canada received a request in 2010 for documents pertaining to the Abbreviated New Drug Submission by Apotex Inc. for its proposed drug Apo-Pantoprazole.
Health Canada responded to the request on May 20, 2011. Of the records disclosed, information had been withheld on eight pages, based on a claim that this information is subject to solicitor-client privilege (section 23). The requester subsequently complained to the Commissioner about Health Canada’s refusal to disclose these portions of the records.
During the course of her investigation, the Commissioner applied the three-part test established by the Supreme Court of Canada in Solosky v The Queen [1980] 1 S.C.R. 821 at 84 for determining whether information falls within the scope of solicitor-client privilege. This test requires that the information be (i) a communication between a solicitor and a client, (ii) which involves the seeking or giving of legal advice, and (iii) which is intended to be confidential.
The Commissioner concluded that Health Canada had not shown that the exempted information met this test. Accordingly, she wrote to the Minister of Health to formally recommend that Health Canada disclose the information. The Commissioner also noted that even if solicitor-client privilege could apply (of which she was not convinced), the evidence did not establish that the discretion to waive the privilege and disclose the information had been properly exercised. The Minister rejected the recommendation and declined to exercise the discretion to waive the privilege.
In light of this response, and with the consent of the complainant, the Commissioner filed an application for judicial review in November 2013. The Commissioner’s written legal arguments were filed on April 9, 2014.
Injury to international affairs: “No-fly list”
Information Commissioner of Canada v. Minister of Transport Canada (T-911-14, T-912-14)
Transport Canada received two requests in March 2010 for the number of individuals who were named on the Specified Persons List (otherwise known as Canada’s “no-fly list”) between 2006 and 2010, and for the number of Canadians on the list during the same period.
In its response to the requests, Transport Canada withheld these numbers, being of the view that releasing them could reasonably be expected to injure international affairs and the detection, prevention or suppression of subversive or hostile activities (as per subsection 15(1)).
Through her investigation, the Commissioner determined that the information Transport Canada had withheld did not fit the criteria of subsection 15(1). On May 10, 2013, the Commissioner wrote to the Minister to recommend that he release the withheld information to the complainant. The Minister declined to follow the Commissioner’s recommendation.
In light of this, the Commissioner obtained the consent of the complainants and filed two applications for judicial review of the Minister’s decision on April 15, 2014.
Reference: Fees and electronic records
Information Commissioner of Canada v. Attorney General of Canada et al. (T-367-13)
Under section 18.3 of the Federal Courts Act, federal tribunals may refer certain questions to the Federal Court for determination.
On February 27, 2013, the Commissioner made such a reference for the first time, seeking a determination on whether institutions may charge search and preparation fees for electronic records when the Regulations under the Act specify that institutions are allowed to charge such fees when records are non-computerized (see, “Fees and electronic records,” in the Commissioner’s 2012–2013 annual report).
In March 2013, the Attorney General of Canada brought a preliminary motion to strike the Commissioner’s reference, arguing that one of the conditions for the Court to hear the reference had not been met: that the issue must be one for which the solution could put an end to the dispute before the Commissioner. The Attorney General took the position that this condition had not been met because the “proceeding” before the Commissioner (an investigation about a complaint against Human Resources and Skills Development Canada) was essentially at an end, since the Commissioner had made a recommendation to the Minister about the complaint. The Attorney General also argued that, in any event, the nature of the Commissioner’s function is not to determine or resolve disputes, and that the reference can therefore not put an end to “a dispute” that is before her.
The Court found that the Attorney General’s argument did not take into account the final step of the Commissioner’s statutory duty—that is, to report to the complainant, which the Commissioner has yet to do. In addition, the Court noted that if it were to accept that the Commissioner’s role is not to resolve disputes, the Commissioner would never be able to bring a reference. The Court concluded that it was certainly arguable that Parliament had intended for advisory bodies such as the Commissioner to have the right to refer issues of law that arise in the course of the performance of their duties to the Court for determination. On February 6, 2014, the Court dismissed the Attorney General’s motion to have the reference struck.
On April 17, 2014, VIA Rail Canada, the Canadian Air Transport Security Authority and the Business Development Bank of Canada were granted intervener status in the proceeding.
The parties have filed a proposed schedule with the Court in which it is requested that a hearing date be set for January 2015.
2. Complainant-initiated proceedings
After the Commissioner reports the results of her investigation concerning 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.
3412229 Canada Inc. et al. v. Canada Revenue Agency et al. (T-902-13)
Between September 2011 and February 2013, the Canada Revenue Agency (CRA) responded to a series of requests under the Act for records pertaining to seven numbered companies’ various taxation years. CRA refused to disclose portions of the requested records. These companies complained to the Commissioner about CRA’s access refusals.
As a result of the Commissioner’s investigations, CRA disclosed additional information. Thereafter, the Commissioner concluded that the complaints were well founded but had been resolved.
The numbered companies were not satisfied that they had received all of the information to which they were entitled. As a result, six judicial review proceedings were initiated between May 21, 2013 and August 5, 2013, against CRA. These judicial review proceedings were later consolidated by orders of the Court into a single proceeding.
The Commissioner sought and obtained leave to be added as a party after the Applicants indicated that CRA had identified additional records responsive to the access requests following the completion of the Commissioner’s investigations and the commencement of the judicial review proceedings.
The Applicants served an additional affidavit in support of their case on April 7, 2014. As of April 30, 2014, CRA had yet to file its affidavit material.
3. 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 from a requester 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 and, in some instances, from the parties themselves. The Commissioner may then seek leave to be added as a party in those cases in which her participation would be in the public interest.
In 2013–2014, 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.
Husky Oil Operations Limited v. Canada–Newfoundland and Labrador Offshore Petroleum Board et al. (T-511-13)
Husky Oil filed an application for judicial review in March 2013, asking the Court to set aside a decision by the Canada–Newfoundland and Labrador Offshore Petroleum Board to release information to a requester that relates to Husky Oil.
The information at issue is found in safety incident notifications and safety incident investigation reports relating to an oilrig operated by Husky Oil. The company had provided these notifications and reports to the petroleum board in compliance with the Canada–Newfoundland Atlantic Accord Implementation Act and the Regulations under that Act.
Husky Oil claims that the information is privileged under section 119 of the Canada–Newfoundland Atlantic Accord Implementation Act, such that it may not be disclosed under subsection 24(1) of the Access to Information Act (which deals with statutory prohibitions against disclosure).
The Commissioner has been added as a party and has taken the position in this matter that the information at issue should not be withheld under subsection 24(1) or any of the Act’s other exemption provisions. Written representations have been filed with the Court, and the case was heard before the Federal Court on May 8, 2014, in St. John’s.
Provincial Airlines Ltd. v. Attorney General of Canada et al. (T-1429-13)
Provincial Airlines filed an application for judicial review in August 2013, asking the Court to set aside a decision by Public Works and Government Services Canada to disclose to a requester records relating to a contract awarded to Provincial Airlines under Fisheries and Oceans Canada’s National Fisheries Aerial Surveillance Program.
The Information Commissioner was added as a party to this proceeding in October 2013. As of April 30, 2014, Provincial Airlines had yet to file its written representations.
Equifax Canada Co. v. Minister of Public Works and Government Services Canada et al.(T-1003-13) and Equifax Canada Co. v. Minister of Human Resources and Skills Development et al. (T-1300-13)
Equifax Canada Co. filed two applications for judicial review in 2013.
One was in respect of a decision by the Minister of Public Works and Government Services Canada to disclose the total price paid under a contract between Equifax and Human Resources and Skills Development Canada (HRSDC). This contract was for credit and fraud protection services for individuals affected by HRSDC’s loss of an electronic storage device containing the personal information of 583,000 Canada Student Loan borrowers.
The second was in respect of a decision by HRSDC to disclose certain portions of contracts between Equifax and that institution. These contracts generally pertain to the provision of credit reporting services to HRSDC by Equifax.
In both cases, Equifax claims that the information at issue is exempt from disclosure based on subsection 20(1) of the Act (third-party information).
The Commissioner was granted leave to be added as a party to both these proceedings on September 3, 2013. The matters were heard together before the Federal Court in Toronto on May 13, 2014.
Decisions
The following decisions were rendered in 2013–2014 by the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada in matters related to access to information.
An issue of protocol and solicitor-client privilege
Minister of Public Safety and Emergency Preparedness and Minister of Justice v. Information Commissioner of Canada, 2013 FCA 104 (A-375-12)
The Federal Court of Appeal’s decision in this case was rendered on April 17, 2013 and reported in the Commissioner’s 2012–2013 annual report (see, “An issue of protocol”). Since then, no application for leave to appeal the decision to the Supreme Court of Canada was initiated. The Federal Court of Appeal’s decision therefore stands.
Extensions of time (under appeal)
Information Commissioner of Canada v. Minister of National Defence, 2014 FC 205 (T-92-13)
As reported in her 2012–2013 annual report, the Commissioner filed an application for judicial review of a 1,110-day extension National Defence had taken to respond to a 2010 access request (see, “A very lengthy time extension”). The request was for all records pertaining to a specific contract, and communications relating to a company, an individual and the sale of surplus military assets to Uruguay. The extension meant that National Defence would have had to have responded to the request by March 29, 2014.
In the application for judicial review, the Commissioner asked the Court to declare that the Minister of Defence had failed to respond to the request within the time limits set out in the Act and was therefore deemed to have refused to give access to the requested documents. The Commissioner asked the Court to order the Minister to respond to the request within 30 days of the Court’s judgment.
On September 11, 2013, less than a month before the hearing of the application, National Defence responded to the request. It then brought a motion to strike the Commissioner’s application, on the grounds that it was now moot. The Court refused to do so, however, because it determined that a resolution of the issues raised would have some practical effect.
The application for judicial review was heard on October 8, 2013. On March 3, 2014, the Court dismissed the Commissioner’s application. The Court concluded that even when the Commissioner determines that an extension of time is unreasonable that extension of time does not constitute a refusal of access. It further concluded that when there has been no access refusal, the Court does not have jurisdiction under the Act to review the matter.
The Court noted that “where the Information Commissioner investigates a complaint about a claimed extension of time, all that can be done, if the extension is found to be unreasonable, is to make recommendations to the head of the Government institution and to rely on the Annual Reports, and where appropriate, a Special Report to focus attention on the issue and encourage better compliance in future cases” (para. 109).
The Court also found that because it had no jurisdiction to consider the application, it did not need to consider whether the extension claimed in this case had been reasonable. Nonetheless, it noted that “assessments of what is reasonable generally require consideration of the circumstances” (para. 124) and that “the Information Commissioner may not always be well-placed to determine whether an extension is reasonable” (para. 124), while “the Court should not second guess whether an extension is reasonable” (para. 125).
On March 26, 2014, the Commissioner filed a Notice of Appeal of the decision, on the grounds, among others, that the Federal Court had made an error in holding that extensions of time that do not comply with the statutory requirements for extensions do not constitute deemed refusals of access.
Investigation report a pre-condition of a judicial review application
Whitty v. Minister of the Environment, [2013] F.C.J. No. 469 (T-1423-12) and Whitty v. Minister of the Environment, [2014] F.C.J. No. 114 (A-229-13) (Both decisions were rendered in 2013–2014.)
An individual made a request for information from Environment Canada regarding himself and his companies. The institution took a 200-day time extension to respond to this request. The individual complained to the Commissioner about the length of the extension of time. The Commissioner investigated the complaint and concluded that the extension of time was valid and reasonable.
However, Environment Canada did not respond to the request within the 200-day time extension. As a result, the requester again complained to the Commissioner.
The Commissioner investigated this second complaint and concluded that as a result of Environment Canada’s failure to respond within the extension of time claimed it was deemed to have refused access to information within the meaning of subsection 10(3) of the Act. However, because Environment Canada ended up responding to the access request prior to the completion of the Commissioner’s investigation, the complaint was determined to be well founded but resolved.
In or around this same period of time, the requester made another complaint to the Commissioner concerning Environment Canada’s refusal to disclose portions of the requested records and other information responsive to a previous request under the Act based on the Act’s exemption provisions.
Shortly thereafter, and while the Commissioner was still investigating the requester’s complaint concerning Environment Canada’s application of exemptions, the requester filed an application for judicial review of Environment Canada’s decision to refuse access to requested information based on exemptions under the Act.
On June 4, 2013, the Federal Court determined that the application did not meet the statutory pre-conditions for bringing an application to Court. A “judicial review cannot be sought without a report outlining the investigation of [the Office of the Information Commission; OIC] of the relevant subject matter” and “in the absence of a report from the OIC detailing its investigation of the Third Complaint, the court is precluded from granting—or even considering—this application for judicial review.”
The Federal Court of Appeal agreed with the Federal Court’s decision in its ruling of February 3, 2014.
Solicitor-client privilege
Dufour v. Attorney General of Canada et al. (T-1298-10)
On November 28, 2008, an individual made a request to the Department of Justice Canada for records listing the costs associated with various legal proceedings. The institution refused to provide the majority of the information requested, claiming it was exempted under section 23 of the Act (solicitor-client privilege). The requester complained to the Commissioner, who found as a result of her investigation that the Minister’s refusal was justified.
The requester initially filed an application for judicial review of whether the institution had properly applied section 23, naming only the Attorney General. In January 2010, after the first judicial review application had been filed, the Attorney General disclosed an additional record. The requester then filed a second application adding the Information Commissioner as a respondent. On March 14, 2013, the Attorney General disclosed still more records.
The Court dismissed the judicial review application on January 14, 2014.
Third-party information
Porter Airlines Inc. v. Attorney General of Canada et al., 2013 FC 780
Porter Airlines filed an application for judicial review on October 31, 2011, challenging Transport Canada’s revised decision concerning the disclosure of information pertaining to an audit of Porter Airlines that was requested under the Act (see “Third-party information (2)”). The Information Commissioner was added as party to the proceeding, at her request.
Prior to making the revised decision that was the subject of the judicial review, Transport Canada had rendered two other decisions about what portions of the records at issue it intended to disclose. In the proceeding, Porter argued that the Act did not permit Transport Canada to revise its decision concerning the information it intended to release and argued that Transport Canada’s revised decision concerning the information’s disclosure was void and of no effect.
On July 11, 2013, the Court granted Porter’s application for judicial review, quashing Transport Canada’s revised decision. When doing so, the Court found that a government institution is not allowed, on its own initiative, to reverse itself on decisions about disclosure of third-party information and start the process anew, except on recommendation of the Commissioner or in the context of the Court’s judicial review.
As a result of the Court’s decision, Transport Canada had to disclose the records in conformity with its first decision, and inform the requester that he had the right to complain to the Commissioner should he not be satisfied with this response.
Exceldor Coopérative v. Canadian Food Inspection Agency et al. (T-493-13)
Exceldor Coopérative filed a judicial review application on March 22, 2013, challenging a decision by the Canadian Food Inspection Agency (CFIA) to disclose certain information in Corrective Action Requests issued under the Meat Inspection Regulations. Exceldor alleged that the information should not be disclosed because exemptions about personal information (section 19) and third-party information (section 20) applied to it.
At the Commissioner’s request, the Court added the Commissioner as a party to the application on May 23, 2013. Exceldor withdrew its application for judicial review on July 19, 2013, and the records were subsequently released to the requester.
Volailles Mirabel Ltd. v. Canadian Food Inspection Agency et al. (T-464-13)
Volailles Mirabel filed a judicial review application on March 15, 2013, challenging CFIA’s decision to disclose certain information in Corrective Action Requests issued under the Meat Inspection Regulations. Volailles Mirabel claimed that the information in its entirety should not be disclosed because exemptions about third-party information (section 20) applied.
At the Commissioner’s request, the Court added the Commissioner as a party to the application. CFIA subsequently decided that the records it had originally intended to disclose did not actually fall within the scope of the access request. CFIA, therefore, asked the Court to quash the decision in which it had advised Volailles Mirabel of its intention to disclose the records.
The Commissioner neither objected nor consented to CFIA’s motion, explaining that she could not take a position on whether the records fell within the scope of the request when that very question could later become the subject of a complaint she would be required to investigate.
On October 9, 2013, the Court allowed CFIA’s motion to quash its own decision, granted Volailles Mirabel’s application for judicial review, and returned the matter to CFIA to make a new decision in response to the access request.
PriceWaterhouseCoopers LLP v. Minister of Public Works and Government Services Canada et al. (T-1818-13)
PriceWaterhouseCoopers LLP filed an application for judicial review on November 5, 2013, about Public Works and Government Services Canada’s decision to disclose to a requester information pertaining to an audit the firm had conducted. PriceWaterhouseCoopers was of the view that the information in question should be withheld under several of the Act’s exemption provisions: subsection 19(1) (personal information), paragraphs 20(1)(b) and (c) (third-party information), section 23 (solicitor-client privilege) and subsection 24(1) (statutory prohibitions against disclosure). The firm also took the position that some of the information fell outside of the scope of the access to information request.
The Commissioner was added as a party to this proceeding on February 26, 2014. However, PriceWaterhouseCoopers filed a discontinuance of its application on March 26, 2014.
Canon Canada Inc. v. Infrastructure Canada et al. (T-1987-13)
Canon Canada Inc. filed an application for judicial review in December 2013, asking the Federal Court to quash a decision by Infrastructure Canada to release to a requester records containing information said to be about Canon Canada Inc.’s organization. Canon asserted that these records contain information that is exempt from disclosure based on subsections 19(1) (personal information) and 20(1) (third-party information).
The Commissioner was added as a party on February 28, 2014. On April 9, 2014, the Court granted an Order, on consent by the parties, dismissing Canon’s application.
Supreme Court of Canada intervention: information in the Ontario Sex Offender Registry
Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31
The Ontario Ministry of Community Safety and Correctional Services received a request under the province’s Freedom of Information and Protection of Privacy Act for disclosure of a record containing a list of the first three characters of Ontario’s postal codes in one column with a second corresponding column of figures representing the number of individuals residing in each area who are listed in the Ontario Sex Offender Registry.
The Ministry exempted the requested information from disclosure, arguing that releasing it might lead to the identification of the whereabouts of registered offenders. Information concerning the identities and whereabouts of individuals in the registry is only available to law enforcement officials, not the general public.
Ontario’s Information and Privacy Commissioner ordered the information to be disclosed. The Ministry then sought a judicial review of this decision. The Ontario Divisional Court dismissed the application for judicial review as did the Court of Appeal. The Ministry then sought leave to appeal to the Supreme Court of Canada, which was granted.
The Information Commissioner of Canada successfully sought leave to intervene in this proceeding and made three main arguments before the Supreme Court:
- The legal threshold for a harm-based exemption (such as the one claimed by the Ministry when refusing to disclose the information) is a “reasonable expectation of probable harm,” in accordance with the principles set down in a 2012 Supreme Court decision (Merck Frosst Ltd v. Canada (Health), 2012 SCC 3), and not the lower threshold proposed by the Ministry.
- The evidence required for a harm-based exemption must be clear, direct and convincing evidence of harm proven on a balance of probabilities.
- The confidentiality requirements of the law governing the Ontario Sex Offender Registry do not supersede the quasi-constitutional and comprehensive legislative scheme of the Freedom of Information and Protection of Privacy Act.
The Supreme Court heard the parties’ arguments on December 5, 2013. On April 24, 2014, the Court dismissed the appeal.
In doing so, the Court held that Ontario’s Information and Privacy Commissioner had made no reviewable error in ordering disclosure of the information in question. The applicable standard of review is reasonableness. The Ontario Commissioner reasonably concluded that the Ministry did not provide sufficient evidence that disclosure could lead to the identification of offenders or to the risk of the harm that the exemption seeks to prevent.
The Supreme Court also held that the Ontario Commissioner made no reviewable error with respect to the applicable standard of proof. The Court held that there is no difference in substance between “a reasonable expectation of probable harm” and a “reasonable basis for believing” that harm will occur. The “reasonable expectation of probable harm” formulation simply captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will, in fact, result in such harm. The Court held that the formulation used in Merck, “reasonable expectation of probable harm,” should be used wherever the phrase “could reasonably be expected to” is used in access to information statutes.
The Supreme Court concluded with these words: “As an expert in privacy rights, as well as in access to information requests, the Commissioner’s decisions deserve deference, short of an unreasonable conclusion falling outside the range of possible and acceptable outcomes.”