2016-2017 5. 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 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. The Commissioner often seeks to be added as a party to these proceedings to provide assistance and expertise to the Federal Court.

Key decisions and cases

Proceedings before the Supreme Court of Canada

Alberta’s Information and Privacy Office cannot review records to which solicitor-client privilege is claimed

On November 25, 2016, the Supreme Court of Canada released its decision in Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary, 2016 SCC 53.^{Footnote 1} This decision relates to whether the Information and Privacy Commissioner of Alberta can review records to which solicitor-client privilege is claimed. It turns on an interpretation of Alberta’s Freedom of Information and Protection of Privacy Act (FOIPP Act).

The Commissioner, with the Privacy Commissioner of Canada, led a group of information and privacy commissioners as joint interveners. The commissioners intervened because their respective statutes contain similar provisions regarding their powers to require production of records to verify claims of solicitor-client privilege.

The Supreme Court of Canada determined that Alberta’s Information and Privacy Commissioner does not have the power to review records over which solicitor-client privilege is applied.

The Court concluded that solicitor-client privilege was a substantive, rather than an evidentiary, privilege. Because Alberta’s FOIPP Act onlyprovides its commissioner with the power to require production of a record “[d]espite any other enactment or any privilege of the law of evidence”, records subject to solicitor-client privilege are excluded from this power.

One justice dissented. In his view, the phrase “any privilege of the law of evidence” of the FOIPP Act does include solicitor-client privilege in appropriate circumstances.

Impact of the Supreme Court of Canada’s decision on the OIC’s investigations

Following the release of the Supreme Court of Canada’s decision, on December 8, 2016, the Commissioner wrote to the President of the Treasury Board and the Minister of Justice regarding the implications of this decision and highlighted the differences between the Access to Information Act and the FOIPP Act.^{Footnote 2}

She asked that institutions be instructed by the ministers to continue to provide the OIC with records over which either solicitor-client privilege or litigation privilege is claimed, in order for her to provide first-level independent review.

She also asked that, for greater certainty, the Act be amended as part of the government’s first phase review of the Act to include language that provides for a clear and unambiguous legislative intent that the Information Commissioner’s investigative powers, including her power to compel institutions to produce records, apply to records over which the exemption for solicitor-client privilege has been claimed.

Intervening in litigation related to Indian Residential School Settlement Agreement

The Commissioner has been granted leave to intervene in the appeal before the Supreme Court of Canada (Fontaine et al. v. Canada (A.G.), (SCC 37037)). The appeal relates to records created for the purposes of independently adjudicating claims related to the Indian Residential School Settlement Agreement (IRSSA). At the core of this litigation is a balancing exercise between protecting personal information and transparency and government accountability.

The litigation before the Supreme Court of Canada is an appeal of a decision of the Ontario Court of Appeal (Fontaine et al. v. Canada (A.G.), 2016 ONCA 241).

The majority of the Ontario Court of Appeal had determined that records created for the purposes of adjudicating claims under the Independent Assessment Process (IAP) were not government records subject to federal legislation, including the Library and Archives of Canada Act, the Privacy Act and the Access to Information Act.

The majority upheld (with minor variations) an order issued by the Ontario Superior Court that precluded anyone from using or disclosing IAP documents and IAP personal information for any purpose other than resolving IAP claims.

In dissent, Justice Sharpe concluded the IAP records were government records and were therefore subject to the Access to Information Act.

At the Supreme Court of Canada, the Commissioner will argue that, by removing the application of the Access to Information Act from IAP records, the accountability and transparency functions served by the Act are displaced. There is a public interest in applying the Act to these records, even if disclosure results in heavily redacted records. This still allows the public to scrutinize government actions. Such accountability is even more important in the context of reconciliation and building trust with the government, one of the fundamental aims of the IRSSA. 

Removing the application of the Act from these records also removes independent review from government’s decisions on disclosure regarding IAP records. This is contrary to Parliament’s intent, which gave both the Information Commissioner and the Federal Court this independent review power.

Raising exemptions at the 11^th hour

2016–2017 brought a decision from the Federal Court and an ongoing appeal at the Federal Court of Appeal that raised questions of when institutions may raise exemptions to prevent disclosure of information. Both matters impact requesters’ right to timely access.

The decision from the Federal Court, Information Commissioner of Canada v. Toronto Port Authority and Canadian Press Enterprises Inc., 2016 FC 683 stemmed from a request to the Toronto Port Authority (TPA) for its audit committee’s meeting minutes.^{Footnote 3} TPA refused to disclose the minutes, claiming their release would harm the organization and reveal confidential third-party information. The Commissioner recommended the minutes be disclosed.

After the Commissioner issued her recommendation, TPA raised another discretionary exemption claiming the minutes should not be disclosed because they were possibly an account of consultations or deliberations. The Commissioner chose not to investigate the applicability of this exemption, given recommendations had already been made and investigating it would further delay this already lengthy investigation.

Federal Court litigation was initiated by the Commissioner, with the consent of the complainant, when TPA chose not to follow the Commissioner’s recommendation to disclose the minutes.

In its reasons, released August 8, 2016, the Federal Court found certain discretionary exemptions applied to some of the minutes. However, it also found TPA had exercised its discretion unreasonably by considering irrelevant factors when it refused to disclose the minutes. The Court ordered disclosure of some of the minutes, and that TPA re-exercise its discretion over other parts.

The Court also confirmed the Commissioner is the master of her own procedure and has the discretion not to investigate an exemption invoked so late in the investigation process. The Court found that forcing the Commissioner to relaunch an investigation under these circumstances could potentially undermine the quasi-constitutional right of timely access.

In a similar matter before the Federal Court of Appeal, Defence Construction Canada (DCC) raised a mandatory, rather than discretionary, exemption, five days before the hearing (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)).^{Footnote 4} Mandatory exemptions are fundamentally different than discretionary exemptions (see box "Mandatory vs. discretionary exemptions").

The litigation originates with a request made by the President of UCANU Manufacturing Corporation (UCANU) to DCC for information about the construction of a hangar.

The requester complained to the Commissioner about the application of the personal information and third party exemptions to the disclosed information.  During the investigation, additional information was released, and the Commissioner concluded the exemptions were properly applied on the remaining information.

The requester then asked the Federal Court to review the application of the exemptions. Five days before the hearing, DCC raised a new mandatory exemption: section 24 of the Act, which incorporates by reference section 30 of the Defence Production Act (DPA).^{Footnote 5}

The Federal Court concluded DCC could not rely on this newly raised exemption to prevent disclosure (UCANU Manufacturing Corp. v. Defence Construction Canada, 2015 FC 1001).

The government appealed the Federal Court’s decision and the sole issue is whether an institution should be permitted to raise additional mandatory exemptions post-investigation. The Commissioner intervened at the Federal Court of Appeal.

The Commissioner has argued that, as a general rule, all exemptions to the right of access must be raised prior to the completion of an investigation. This facilitates meaningful review by the Office of the Information Commissioner and protects requesters’ right to timely access.

However, recognizing Parliament’s intent in adopting mandatory exemptions, the Commissioner offered a framework to assess circumstances where an institution should be permitted to raise additional mandatory exemptions post-investigation. This framework would balance Parliament’s intent in creating mandatory exemptions and litigants who could abuse the right to raise exemptions at the 11^th hour. The criteria proposed to the Court are:

1. 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 Access to Information 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?
2. What is the underlying interest that the mandatory exemption seeks to protect and what are the consequences of disclosing the records at issue?
3. What is the prejudice to the requester and their access rights if the new exemption is considered at that stage of the proceedings?
4. 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?
5. Is it in the interests of justice to allow the exemption to be raised?

The hearing took place on November 1, 2016 in Ottawa.

Ongoing litigation

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

In early 2016, the Minister of Public Safety sought the Commissioner’s consent to suspend an application before the Ontario Superior Court challenging amendments to the Ending the Long-gun Registry Act (ELRA) enacted by the Economic Action Plan 2015 Act, No. 1 (Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada, (OSCJ-15-64739)).^{Footnote 6}

The court challenge alleges 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, contravene the rule of law.

The Commissioner and the complainant consented to suspend the Ontario Superior Court application for the purpose of settlement negotiations. An associated judicial review application in Federal Court is also suspended pending negotiations (Information Commissioner of Canada v. Minister of Public Safety and Emergency Preparedness, (T-785-15)).

Access to information: Senators’ expenses

The Commissioner asked the Federal Court to review Privy Council Office’s (PCO) application of several exemptions to records created between specific dates “related to Senators Mike Duffy, Mac Harb, Patrick Brazeau and/or Pamela Wallin” (Information Commissioner of Canada v. Prime Minister of Canada, (T-1535-15)).^{Footnote 7}

PCO had released innocuous information in the records, such as signatures, date stamps, Government of Canada emblems and other letterhead elements, but argued the substance of the records should be withheld, claiming the exemptions for personal information, advice and recommendation and solicitor-client privilege (subsection 19(1), paragraph 21(1)(a) and section 23).

Regarding the personal information exemption, the Commissioner argued the alleged personal information should be disclosed as the public interest in its disclosure outweighs any invasion of privacy. In addition, the information constitutes a discretionary benefit of a financial nature, which is an exception to the definition of personal information. As a result, the exemption should not be applied.

The Commissioner has taken the position that the exemptions for advice and recommendations and solicitor-client privilege do not apply and that the exercise of discretion was unreasonable.

The hearing for this litigation took place on November 29, 2016 at the Federal Court in Ottawa.

Personnel rates for government contracts

In December 2015, the Federal Court released its public reasons in Calian Ltd. v. Attorney General of Canada and the Information Commissioner of Canada, 2015 FC 1392. In this decision, the Court found Public Services and Procurement Canada (PSPC) was required to exempt Calian Ltd.’s personnel rates from disclosure as third party information (paragraphs 20(1)(c) and (d)).^{Footnote 8}

Both the Commissioner and the Attorney General of Canada have appealed the Federal Court’s decision (Information Commissioner of Canada v. Calian Ltd., (A-31-16); Attorney General of Canada v. Calian Ltd. et al., (A-20-16)).

In her appeal, the Commissioner argued it was an error to conclude that Calian’s personnel rates were required to be withheld. Her appeal largely focuses on a misinterpretation of a provision in the Act that states an institution may disclose third party information with the consent of the third party (subsection 20(5)).

The Commissioner also argued the decision disregards the clear and unambiguous wording of a disclosure clause found in Calian’s standing offer to PSPC, as well as judicial interpretations of similarly worded disclosure clauses, that should allow for the release of the personnel rates.

The Commissioner’s appeal was heard together with the Attorney General’s by the Federal Court of Appeal on January 26, 2017 in Ottawa. 

Third-party-initiated proceedings

Third parties can ask the Federal Court of Canada to review institutions’ decisions to disclose information (section 44). The Legal Services team monitors the issues in these proceedings. The Commissioner will ask to be added as a party where her participation would be of assistance to the Court.

Personal information of private sector employees  

In Suncor Energy Inc. v. Canada-Newfoundland and Labrador Offshore Petroleum Board and Information Commissioner of Canada, (A-84-16) and Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, (A-75-16) third parties are challenging decisions by the Canada-Newfoundland and Labrador Offshore Petroleum Board (“the Board”) to disclose records containing the names, telephone numbers and business titles of employees.

The Federal Court decided the information qualified for the personal information exemption (section 19(1)) (See Suncor Energy Inc. v. Canada-Newfoundland Offshore Petroleum Board, 2016 FC 168 and Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2016 FC 117).^{Footnote 9} However, it also determined the Board reasonably exercised its discretion in deciding to disclose this information since these employees’ association with the third parties was publicly available (within the meaning of paragraph 19(2)(b)). In one case the information was on LinkedIn, a social networking site for professionals, while in the other, on ZoomInfo.com.

Both parties have appealed the Federal Court decisions and the Commissioner continues to be a party to these proceedings.^{Footnote 10}

Porter discontinues two applications for judicial review on the eve of the hearing

In September 2015, Porter Airlines Inc. (Porter) asked the Federal Court to review two of Transport Canada’s (TC) decisions to release certain records concerning Porter’s safety management system (Porter Airlines Inc. v. Attorney General, (T-1491-15) and (T-1296-15)).^{Footnote 11}

The Commissioner was added as a party to both these proceedings.

Both matters were set to be heard by the Federal Court on November 22, 2016 in Toronto. However, Porter discontinued the applications less than two weeks prior to the scheduled hearing. 

Challenging the Information Commissioner’s participation in court proceedings

In fall 2015, Apotex asked the Federal Court to review a decision of Health Canada’s to release records in response to three identical requests.^{Footnote 12}

The Commissioner asked to be added to these proceedings because Apotex stated it intended to seek a reversal of the burden of proof. It wanted the government to have the burden of proof, rather than the third party (itself) opposing disclosure. Apotex opposed the Commissioner being added to the proceedings.  

The Commissioner was added to the proceedings by a prothonotary’s orders on April 4, 2016. Apotex appealed the prothonotary’s orders to the Federal Court, asserting the legal test for the Commissioner to be added as a party is that of “necessity”.^{Footnote 13}

Apotex’s appeals to the Federal Court were dismissed on July 8, 2016 (Apotex v. Minister of Health, 2016 FC 776).

In its decision, the Federal Court found that requiring the Commissioner to prove her necessity in these types of proceedings “would undermine the intention of Parliament that the Commissioner may be granted leave to be added as a party.”

The Federal Court noted that many previous orders made by prothonotaries and judges have added the Commissioner as a party to access to information proceedings.  In rendering those orders, they applied the following test: whether the participation of the Commissioner would assist the Court to determine a factual or legal issue in the proceedings. The Federal Court affirmed this test. 

Apotex appealed this decision to the Federal Court of Appeal and the appeal was heard on March 27, 2017 in Toronto.

In a similar matter, on June 1 and September 6, 2016, a pharmaceutical company, Teva Canada Limited (Teva), asked the Federal Court to review Health Canada’s decisions to disclose records relating to Teva’s drug submissions (Teva Canada Limited v. Canada (Minister of Health), T-872-16 and T-1468-16).

The Commissioner sought to be added to both proceedings because Teva made arguments related to a lack of procedural fairness. It alleged Health Canada improperly placed the entire burden on Teva to establish the exemption. These were substantially similar issues to those raised by Apotex in the reviews to the Federal Court noted above. 

Teva opposed the Commissioner being added to both these proceedings, arguing the necessity test was not met.

On December 1, 2016, the Prothonotary agreed with the Commissioner that the correct test for the Commissioner to be added as a party is: if her participation would assist the Court in determining a factual or legal issue in the proceedings.

However, based on the available evidence before the Court, the Prothonotary declined to add the Commissioner. 

Other litigation

Disclosure of report on Air Transat’s quality and safety management system

On May 9, 2016, Air Transat asked the Federal Court to review a decision by Transport Canada (TC) to release information related to Air Transat’s Quality and Safety Management System (SMS) and a report entitled “Transport Canada Regulatory Inspection of Air Transat” (Air Transat A.T. Inc. v. Minister of Transport and Information Commissioner of Canada, (T-739-16)).

This litigation results from a request that was made to TC in 2005.  The requester had complained about TC’s response. During the lengthy investigation, TC disclosed further records.

In 2015, the complainant agreed to focus the investigation on only the report at issue. During the investigation, TC and Air Transat claimed a number of exemptions (personal information, third party information, and advice and recommendations or deliberations within government (subsection 19(1), paragraphs 20(1)(a), (b), (c) and (d) and paragraphs 21(1)(a) and (b))).

The Commissioner reported her findings to the Minister of Transport on February 26, 2016 and recommended most of the report be disclosed. The Minister agreed with her recommendation and advised Air Transat of his intention to disclose the majority of the report. Air Transat initiated Court review of that decision, triggering this litigation.

In addition to asking the Court to review TC’s decision, Air Transat also asked the Court to declare the Commissioner’s recommendation to the Minister of Transport to be null and void.

Application of section 18 of the Federal Courts Act

Section 18 of the Federal Courts Act allows the Federal Court to compel any federal board, commission or other tribunal to execute certain actions (this is known as a writ of mandamus). On October 4, 2016, a complainant asked the Federal Court, under section 18, to compel the Commissioner to provide the complainant with reports of finding, concluding the investigations of two complaints that they had made to the Commissioner in January 2014 (Sheldon Blank v. the Information Commissioner of Canada, (T-1673-16)).

The investigations of these two complaints are ongoing.

The proceeding before the Federal Court is also ongoing. Both parties have served their affidavit evidence and cross-examinations on the affidavits took place on December 21, 2016.