Date: 20031212
Docket: T-636-02
Citation: 2003 FC 1450
BETWEEN:
ROBERT J. RICHARDS and SANDRA L. RICHARDS
Applicants
- and -
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] These reasons relate to a section 41 Privacy Act review initiated by the applicants who allege they have been refused access to personal information they requested.
[2] In their application for review, the applicants identified a number of records which they say the respondent Minister of National Revenue (the "Minister"), through his officials, refused access and that these records contain personal information about them.
[3] At the hearing of this application, Mr. & Mrs. Richards abandoned their request for the production of several documents covered by two of the five groupings they raised for review.
[4] The remaining records at issue in this application are:
(1) the notes of Madelane Chiasson, a Team Leader in the Appeals Division of Canada Custom and Revenue Agency (the "Agency") when considering the notice of objection filed by Mrs. Sandra Richards;
(2) the T20ST Reconciliation made by Ron Duykers, the auditor at the Agency who performed the audit which led to the reassessments of both Mr. & Mrs. Richards in respect of which notices of objections were filed;
(3) the T2020 notes to file dated February 4, 1999, alleged to have been made by Mr. Duykers;
(4) the note made by Garney Westhaver who was Ron Duykers' Team Leader.
[5] The respondent denies the applicants have been refused access to their personal information. The Minister says the records the applicants seek either do not exist or are missing. Moreover, the Minister says the applicants have been provided with all the documents in their possession containing their personal information and the provided documents run into thousands of pages.
[6] The Minister says the records sought by the applicants do not exist in two cases: Madelane Chiasson made no notes during her involvement on the notice of objection and there is nothing more to Mr. Westhaver's note previously disclosed.
[7] The two other records said to contain personal information are missing, according to the Minister. The respondent acknowledges the bottom part of the T20ST Reconciliation is missing having been torn away but how, nobody knows. It was not done deliberately he says. The Minister adds it is more likely than not the missing part did not contain personal information. Lastly, the personal information on Ron Duykers' T2020 note is said to be contained on a Post-it affixed to that document and covered up by another Post-it. Only a photocopy of the T2020 exists and the two Post-its cannot be found.
[8] A section 41 Privacy Act review engages the Court in a review de novo. The task at hand is to determine, on a balance of probabilities, based on the evidence before me, whether the applicants have been refused access to personal information.
[9] An important consideration in this review are the findings made on November 15, 2001, by the Privacy Commissioner (the "Commissioner") after investigating the applicants' complaint of July 2000 filed against the Agency alleging the Agency failed to comply with their request for personal information.
[10] Specifically, the applicants had alleged to the Commissioner the Agency's Access to Information and Privacy Division ("ATIP") omitted to retrieve and process all of the records relevant to their request for information, that the Agency refused to disclose information because it was not accessible by virtue of section 12(1) of the Act, the document T20ST Reconciliation was mutilated and other records were removed from their files prior to being processed under the Privacy Act.
[11] The Commissioner found, in many instances, the Agency had initially denied access to personal information to which they were entitled under the Act. He added:
As you have now been granted access to the information at issue and there is no evidence to suggest that additional records exist, I do not propose to take any further action.
[12] In terms of the T20ST Reconciliation, the Commissioner made the following finding:
Our examination of the original T20ST Reconciliation on file confirmed that the bottom portion of the record is absent and the condition of the document would suggest that this was the result of being torn. In order to conclude that your right of access under the Privacy Act was violated, it must be established that the missing portion contained personal information about you. Discussions were held with the intent of determining the identity of the CCRA official who was responsible for removing the bottom portion of the form, the rationale for taking such action and what, if any, personal information was contained therein. These inquiries yielded negative results. For his part, the auditor had no recollection of severing the form and he maintained that he did not remove any personal information about you from the document. In summary, our inquiries failed to produce evidence to contradict the auditor's assertion and/or to conclude that the missing portion of the T20ST Reconciliation contained personal information about you within the meaning prescribed under section 3 of the Privacy Act.
[13] With this background, I now deal with each record the applicants seek individually.
(1) Madelane Chiasson's notes
[14] The applicants say proof the notes exist is contained in the following extract from a letter sent by the Manager, ATIP to Mrs. Richards, dated February 18, 2000:
The requested notes from discussions between the Chief of Appeals and Technical support consisted of corporate and personal information, therefore, this information will be provided when we respond to your request made pursuant to the Privacy Act.
[15] Madelane Chiasson swore an affidavit in these proceedings. She deposed she did not make any notes of any conversations with other Agency officials she had in connection with the Richards file. Madelane Chiasson's sworn affidavit is uncontradicted. I conclude the requested notes do not exist. I am not prepared to order the Minister, as requested by the applicants, to conduct a search for the records of all officials in the Appeals Branch in the hope some notes might turn up. I am satisfied with the Commissioner's finding after a thorough investigation there is no evidence additional records exist.
(2) Mr. Westhaver's incomplete note
[16] Mrs. Richards telephoned Mr. Westhaver on February 4, 1998, a conversation which she taped. Mr. Westhaver's practice was to make rough notes on a pad of his telephone conversations and then expand on them in a formal T2020 note to file.
[17] Pursuant to Mrs. Richards request, she was provided with a copy of the rough note he made on February 4, 1998, as well as the formal T2020 note to file related to that conversation.
[18] Mrs. Richards asserts his rough note is incomplete because if one examines the T2020 note, there is no backup in his rough note for the first page and three quarters of the second page of his formal T2020 note of that conversation. She wants me to conclude she was refused access to some pages of Mr. Westhaver's rough notes.
[19] In his affidavit filed in this proceeding, Mr. Westhaver confirmed his T2020 for February 4, 1998, was prepared from notes and memory. He stated he had no other notes of that conversation with Mrs. Richards. He was examined on his affidavit by answering questions put in writing. His answers were attested to. He reiterated he made no other notes of that conversation.
[20] I conclude the rough note which Mrs. Richards was provided was complete and no additional notes were made by Mr. Westhaver of that conversation. I base this finding on the uncontradicted evidence Mr. Westhaver provided in this proceeding that he based his T2020 in part on memory, the fact he wrote on the relevant T2020 that it was constructed in part from memory, and the Privacy Commissioner's finding there was no evidence to suggest additional records exist. I note Mr. Westhaver was interviewed by the Privacy Commissioner's staff and specifically questioned on the point.
(3) The mutilated T20ST Reconciliation
[21] There can be little doubt the bottom part of the T20ST Reconciliation form prepared by the Agency in reviewing Mr. Richards taxes is missing. The Privacy Commissioner examined the original T20ST and confirmed the bottom part was absent. This fact was confirmed by Mr. Michael Moir of the Halifax Tax Services Office who also stated in an affidavit filed in these proceedings "I did not locate in the files a separate piece of paper that appeared to be a part of page C-12 but which was separated from it".
[22] The evidence I reviewed does not permit any conclusion what caused that part of the Reconciliation form to be absent. The Privacy Commissioner came to the same conclusion. I find, however, on the balance of probabilities, the missing part of the form did not contain any personal information about Mr. Richards.
[23] I examined a blank T20ST form as well as the T20ST form prepared when the Agency was reviewing Mrs. Richards' taxes.
[24] What is missing from the bottom part are the typed words "other codes as applicable" and below that "refer to T.O.M. Exhibit 10(15) O-G1". On Mrs. Richards' Reconciliation form the Auditor wrote the words "capital gains inclusion rate". He also wrote those words on Mr. Richards' Reconciliation form.
[25] On this basis, on the balance of probabilities, I find the absent portion of Mr. Richards T20ST Reconciliation did not contain personal information about him.
(4) The missing two Post-its
[26] The evidence is also clear to the effect the Post-its attached to Mr. Duykers' T2020 note of February 4th are missing. Mr. Moir searched the relevant file for the Post-its and stated in his affidavit the Post-its were not in the file.
[27] Mrs. Richards argued, on a balance of probability, the missing Post-its contained personal information about her because the T2020 note was about her and related to a meeting between officials at the Halifax Taxation Office who were reviewing her taxation file.
[28] I do not have sufficient evidence before me upon which I could reasonably conclude the missing Post-its contained personal information about Mrs. Richards. In the circumstances, to reach the conclusion Mrs. Richards wants me to make would be pure speculation on my part.
[29] For all of these reasons, I cannot conclude the applicants have been refused access to personal information and, therefore, this section 41 Privacy Act application is dismissed.
"François Lemieux"
J U D GE
OTTAWA, ONTARIO
DECEMBER 12, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-636-02
STYLE OF CAUSE: ROBERT J. RICHARDS ET AL v. THE MINISTER OF
NATIONAL REVENUE
PLACE OF HEARING: HALIFAX
DATE OF HEARING: NOVEMBER 20, 2003
REASONS FOR : LEMIEUX J.
DATED: December 12, 2003
APPEARANCES:
ROBERT J. AND SANDRA L. RICHARDS APPLICANTS ON THEIR
OWN BEHALF
JOHN J. ASHLEY RESPONDENT
SOLICITORS OF RECORD:
MORRIS R. ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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