Indigenous Services Canada (Re), 2024 OIC 23

Date: 2024-05-03
OIC file number: 5822-04499
Access request number: ISC-A-2021-00059 / DM

Summary

The complainant alleged that Indigenous Services Canada (ISC) had improperly withheld information under paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act. This was in response to an access request for the settlement agreement between the Crown and the Squamish Nation in or about 2000 relating to Kitsilano Point and area, as well as all related maps and appendices. The allegation falls under paragraph 30(1)(a) of the Act.

Neither ISC nor the third party showed that the information met the requirements of the exemptions - in particular how there was a clear and direct connection between the disclosure of any specific information and a risk of harm, that the information could result in a reasonable expectation of interference with negotiations, or that privilege applies. The Information Commissioner ordered ISC to disclose the records in their entirety. ISC gave notice to the Commissioner that it would not disclose the records.

Complaint

[1]    The complainant alleged that Indigenous Services Canada (ISC) had improperly withheld information under paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act. This was in response to an access request for the settlement agreement between the Crown and the Squamish Nation in or about 2000 relating to lands in the lower mainland of Vancouver, in particular Kitsilano Point and area, as well as all related maps and appendices.

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

Investigation

[3]   When an institution withholds information, including information related to third parties, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]   The Office of the Information Commissioner (OIC) sought representations from both the Squamish Nation (the third party) and ISC pursuant to section 35 of the Act. Both parties maintain that the entirety of the responsive records are properly withheld under paragraphs 20(1)(c) and (d). ISC further maintains that the records are also justifiably withheld under section 23.

[5]   The OIC also notified the Squamish Nation pursuant to subsection 36.3(1) of my intention to order ISC to disclose the information at issue. It did not respond.

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

[6]   Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[7]   To claim this exemption with regard to financial impact on a third party, institutions must show the following:

• Disclosing the information could result in material financial loss or gain to the third party.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[8]   To claim this exemption with regard to competitive position, institutions must show the following:

• Disclosing the information could injure the competitive position of the third party.
• There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[9]   When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

[10]   In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

• disclosure of the information would be in the public interest; and
• the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[11]   However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(c) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[12]   At the outset I note that the Settlement Agreement and attached Schedules consist of information that is, to a significant extent, in the public domain. More specifically, Indigenous and Northern Affairs Canada (INAC) has made public the basis upon which the Settlement was reached, including the specific settlement amount agreed to and details of the claims resolved (see https://web.archive.org/web/20010422120754/http://www.ainc-inac.gc.ca/nr/prs/m-a2000/2-00144_e.html and https://web.archive.org/web/20060210120340/http://www.ainc-inac.gc.ca/nr/prs/m-a2000/00144bk_e.html). During the investigation, it was also confirmed that other portions of the records have been, at various points in time, publicly available, and that some of the records remain

[13]   Notwithstanding the public availability of much of the information at issue, the Squamish Nation and ISC maintained that the records contain information that is not public, and that as a result disclosing the records could reasonably be expected to result in a harm described in paragraph 20(1)(c).

[14]   While I accept that the entirety of the responsive records, or the information contained therein, may not be public, neither party has shown how any particular non-public information within the responsive records could reasonably be expected to result in a harm described in paragraph 20(1)(c) if disclosed.

[15]   The Squamish Nation, for its part, referred in general terms to certain non-public information, without specifically identifying the information, which if disclosed it alleged could reasonably be expected to result in harm. It went on to assert that the disclosure of the records would likely prejudice its position in present and future negotiations and could result in material financial loss by revealing details about concessions it has previously made, while not explaining how.

[16]   ISC’s submissions differed from those of the Squamish Nation, in that ISC claimed that because the Settlement Agreement did not include the Squamish Nation’s claim to Canadian Pacific Railway (CPR) lands, the Squamish Nation could suffer losses when the claim against CPR comes before the court. ISC however offered no cogent explanation of how any particular information in the records at issue could have such an effect. It did not identify any particular litigation before the courts that could reasonably be expected to be impacted by disclosure of any of the information at issue, or address the extent to which the Squamish Nation’s claims involving the CPR lands have already been addressed by the courts.

[17]   In addition, actions have already been determined by the British Columbia Supreme Court, which concluded that Canada’s interest in the 10.5-acre land that was expropriated by the railways was “held for the benefit of whichever Indian Band, Squamish, Musqueam or Burrard, which in other proceedings, may be found to be entitled to it” (see: Canada (A.G.) v. Canadian Pacific Ltd., 2000 BCSC 933 (CanLII), at para 239; upheld by the British Columbia Court of Appeal (Canada (Attorney General) v. Canadian Pacific Ltd., 2002 BCCA 478 (CanLII)). Meanwhile, as between First Nations, the Federal Court has already determined that the original grant of the CPR lands to the Squamish Nation should not be disrupted (see Mathias v The Queen, 2001 FCT 480, 207 FTR 1). It is therefore not at all clear that there is any ongoing litigation before the Courts.

[18]   As neither ISC nor the Squamish Nation provided any clear and direct connection between the disclosure of any specific information and a risk of harm described in paragraph 20(1)(c) that is well beyond the merely possible or speculative, it has not been established that the exemption applies (Merck Frosst Canada v. Canada (Health), 2012 SCC 3, at paras. 197, 206).

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

Paragraph 20(1)(d): negotiations by a third party

[20]   Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

[21]   To claim this exemption, institutions must show the following:

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[22]   When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

[23]   In addition, when the requirements are met, subsection 20(6) requires institutions to reasonably exercise their discretion to decide whether to disclose the information for public health or public safety reasons, or to protect the environment, when both of the following circumstances (listed in subsection 20(6)) exist:

• disclosure of the information would be in the public interest; and
• the public interest in disclosure clearly outweighs any financial impact on the third party, any prejudice to the security of the third party’s structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

[24]   However, subsections 20(2) and 20(4) specifically prohibit institutions from using paragraph 20(1)(d) to refuse to disclose information that contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done for a fee for an individual or an organization other than a government institution.

Does the information meet the requirements of the exemption?

[25]   The Squamish Nation and ISC maintain that the records warrant being withheld under paragraph 20(1)(d). I am not satisfied that the requirements of this exemption are met.

[26]   The word “interference” in paragraph 20(1)(d) denotes an “obstruction” or “thwarting” of the negotiations (See, for example: Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), 1990 CanLII 8108 (FCA) (“Saint John Shipbuilding”); Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue), 2003 FC 1037, at para. 133). Heightened competition flowing from disclosure is not enough (See, for example: Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42).

[27]   It also must be shown that the interference to the third party’s actual negotiations is reasonably expected, meaning that it is considerably above a mere possibility. (Merck, supra) The fear of interference in the form of an obstruction to actual contractual or other negotiations cannot be merely speculative. It must be supported by cogent and credible evidence.

[28]   ISC, in support of its position that paragraph 20(1)(d) applies, asserted that:

• the Squamish Nation is currently negotiating with the federal government and local government regarding the use of lands within and adjacent to “Kitsilano IR 6”;
• the Squamish Nation has “…counter claims from other indigenous bands seeking settlements against the Crown”; and
• disclosing the records would provide “…information not publicly available to groups who may wish to initiate additional claims against the Squamish Nation and in turn, the Crown”.

[29]   The Squamish Nation, in turn, stated:

• disclosing terms of the settlement agreement would obstruct dealings related to the ongoing development at Sen̓áḵw and lands within and adjacent to Kitsilano IR 6; and
• it was in negotiations with multiple entities.

[30]   These submissions fall well short of establishing that the requirements of paragraph 20(1)(d) are met.

[31]   Neither ISC nor the Squamish Nation demonstrated how the disclosure of the records, or any particular information therein, could thwart or obstruct such negotiations, much less establish that such an outcome could reasonably be expected to occur.

[32]   Claims that the Squamish Nation’s negotiations with the federal government could reasonably be expected to be interfered with are certainly undermined by the fact that the Squamish Nation and the Crown are already privy to the Agreement as signatories of the Settlement. Any interference with negotiations involving counter claims against the Squamish Nation by other indigenous groups are difficult to envision given that such claims appear to have been settled in advance of ISC’s receipt of the access request. As noted in the British Columbia Supreme Court:

The Musqueam and Tsleil-Waututh had also initiated proceedings claiming that the federal government had failed to protect its interests when allocating the Kitsilano Reserve to the Nation. In 2000, the Nation settled their action and received $92.5 million. The claims by the Musqueam and Tsleil-Waututh were dismissed in 2001. As a result, the original grant of the reserve lands to the Nation was affirmed. (Kits Point Residents Association v Vancouver (City), 2023 BCSC 1706)

[33]   Finally, alleged harms flowing from disclosure are further difficult to envision given the extent to which information concerning the Settlement, and schedules to the Settlement, are already in the public domain.

[34]   As neither ISC nor the Squamish Nation showed that the disclosure of the information could result in a reasonable expectation of interference with negotiations, I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Section 23: solicitor-client and litigation privilege

[35]   Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[36]   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.

[37]   To claim this exemption with regard to litigation, institutions must show the following:

• The information was prepared or gathered for the dominant purpose of litigation.
• The litigation either is in progress or is reasonably expected to occur.

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

[39]   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?

[40]   ISC has claimed that the responsive records are also subject to legal advice privilege and / or litigation privilege, so as to fall within the scope of section 23. Having reviewed the records at issue and considered ISC’s submissions I am not satisfied that either privilege applies.

[41]   ISC, in support of its claim that the records are subject to legal advice privilege, submitted that the records include information provided as advice to ISC from the Department of Justice Canada in consideration of mutual promises contained within the settlement agreement.

[42]   As previously noted, the records at issue consist of a Settlement Agreement (and its associated schedules and appendices), between two distinct parties, the Squamish Nation and the Crown. While the substance of what was agreed may have been informed by advice received by the respective parties’ legal counsel, no portions of the Agreement consist of communications between a lawyer / notary and their client for the purpose of seeking or obtaining legal advice. It is also apparent that there was no intention for the Settlement Agreement to be kept confidential as between a solicitor / notary and their client, as the Agreement was shared and agreed to by distinct parties with opposing interests. As such, the requirements of solicitor-client privilege in the form of legal advice privilege are not met.

[43]   With regard to litigation privilege, section 23 does not encompass ‘settlement negotiations’ (see: Blood Band v. Canada (Minister of Indian Affairs and Northern Development, 2003 FC 1397, at para. 55). In turn, it is difficult to envision how litigation privilege would cover a Settlement Agreement, mutually agreed to by opposing parties. The purpose of litigation privilege is to allow parties to prepare “their contending positions in private, without adversarial interference and without fear of premature disclosure” (Blank v. Canada (Minister of Justice), 2006 SCC 39). It is to facilitate the adversarial process by creating a “zone of privacy” to prepare the case for trial. A Settlement Agreement, mutually agreed to by opposing parties, in no way advances these objectives.

[44]   In addition, litigation privilege ends upon the termination of the litigation that gave rise to the privilege (Blank, ibid, at para 36).  Even if a Settlement Agreement could be construed as having been prepared for the dominant purpose of litigation, in the present instance ISC has failed to establish that such litigation, or related litigation, was either in progress or reasonably expected to occur at the time of responding to the request. The Settlement Agreement reflects the parties’ agreement to a full and final settlement of the Actions, the Specific Claims and Other Claims as those terms are defined in the agreement, which ended in 2000 when the Agreement was signed. This is well in advance of ISC’s claim of privilege when responding to the access to information request.

[45]   ISC argued that the privilege continues because of current or prospective new claims against the Crown, Crown Corporations, and other entities. “Related litigation”, for which litigation privilege may be extended, however, necessarily involves “the same or related parties and arise from the same or a related cause of action” or “issues common to the initial action” (Blank, ibid,at para 39). It also must be reasonably expected, rather than being merely possible. ISC did not provide any detailed representations or evidence demonstrating that related litigation, to that for which the Settlement Agreement was reached, was ongoing or reasonably anticipated at the time of responding to the request. As noted above, litigation privilege is neither absolute in scope nor permanent in duration. The principle of “once privileged, always privileged” therefore does not apply (Blank, ibid, at para 37).

[46]   Finally, even if I were to find that litigation privilege could at one point have applied to any portions of the records at issue, the fact that the records were shared between opposing parties and, in some instances, publicly available, would implicitly waive any prospective privilege claimed.

[47]   Consequently, I conclude that the information does not meet the requirements of section 23.

Outcome

[48]   The complaint is well founded.

Orders and recommendations

I order the Minister of Indigenous Services to disclose the records in their entirety.

Initial report and notice from institution

On March 14, 2024, I issued my initial report to the Minister of Indigenous Services setting out my order.

Institution will not implement orders

On April 22, 2024, the Minister of Indigenous Services gave me notice that ISC would not be implementing the order. The Minister stated that disclosure of the information would significantly impact Canada’s relationship with the Squamish Nation and undermine the ability to conduct confidential and non-prejudicial discussions. The Minister added that releasing the information would indicate to the Squamish Nation, and all Indigenous Peoples, that they cannot trust the information they share nation-to-nation with Canada, in confidence, will be treated as such.

I remind the Minister that, if she does not intend to fully implement my orders, she 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 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 the Squamish Nation.