Del Zotto v. Canada (Minister of National Revenue), 2005 FC 653

Date:    20050509

Docket:    T-2207-01

Citation:    2005 FC 653

BETWEEN:

                                                            ELVIO DEL ZOTTO

                                                                                                                                            Applicant

                                                                           and

                                            MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

MacKAY D.J.:

[1]                By this application pursuant to section 41 of the Privacy Act, R.S.C. 1985, c. P-21 (the AAct@), the applicant, Mr. DelZotto, seeks review of a decision, made on behalf of the respondent Minister by the Canada Customs and Revenue Agency (ACCRA@), by letters dated June 29, 2000 and October 1, 2001. Those letters were in response to requests, made in January 2000, for all personal information concerning the applicant held by CCRA for the years 1972-78 inclusive, 1979-1985 inclusive, and 1986 to the present.

[2]                In a letter of February 8, 2000, counsel for the applicant elaborated on the requests originally made, in part as follows:

Finally, please note that Mr. DelZotto's requests for information extend beyond what may be contained in his Permanent Document Envelope(s). The appendices to the requests were deliberately drafted in an expansive fashion. Mr. DelZotto is asking for any records relating to all activity on his files for the years in question. These would include any and all records respecting intra or inter-departmental requests (and responses thereto) made since 1972 for access to files relating to the tax affairs of Mr. DelZotto; all letters, notes, reports (including T-2020's), working papers, third party requirements, E-mails, directives and memoranda, whether in printed, computer-stored, final or rough draft form (including all notes used in compiling the drafts), regarding the activities of Elvio DelZotto during the years in question. Mr. DelZotto's requests extend, but are not limited to, all such material held not only by the relevant District Office (Tax Services Office) but also Revenue Canada Headquarters. They thus extend to any of the above-described material that exists in any Headquarters Miscellaneous Files; Headquarters Case/Master Files; Headquarters Central Files; District Office Miscellaneous Files; District Office Case/Master Files and District Office Central Files.

[3]                With the letter of June 29, 2000, copies of some 2960 pages of documents, some with portions redacted, were released to Mr. DelZotto. Before that response was received, in May 2000 Mr. DelZotto had filed a complaint to the Privacy Commissioner about the deemed refusal of CCRA to provide any response to his requests. In July 2000 he further complained to the Privacy Commissioner about the absence of any information for the 1972-1978 period, and other information he expected but had not received with the letter in June 2000.

[4]                Following investigation by the Privacy Commissioner the second letter on October 1, 2001 was accompanied by copies of 579 additional pages of documents to meet the requests of the applicant. Some portions of the information released were redacted, with CCRA claiming exemption of information from release pursuant to sections 26 and 27 of the Act. With the first released information some portions had been said to be exempt from release under paragraph 22(1)(b) of the Act. Those three provisions permit exemptions from release claimed by CCRA, respectively under section 26 of the Act (as containing personal information of other individuals), under section 27 (as containing information covered by solicitor-client privilege), and under paragraph 22(1)(b) (as containing information the release of which would likely cause injury to lawful investigations or law enforcement activities).

[5]                On November 6, 2001, the Privacy commissioner responded by letter to the complaint filed by Mr. DelZotto, and advised:

            i)          the applicant had received access to all the information he was entitled to receive for the period 1972-78;

            ii)         investigation of his complaint had resulted in the release of 579 pages of documents from the periods 1979-1985 and 1986 to 2000, subject to certain portions being redacted, mainly under section 26 of the Act;

            iii)         as for exemptions claimed by CCRA on the bases of paragraph 22(1)(b), or sections 26 and 27, the Commissioner found that the exemption claimed was appropriate in each case under the Act; and

            iv)        the applicant's claim for release of information about himself contained in files of his brothers was not specified as a recognized request, and thus there was no obligation on CCRA to review the brothers' files.

In the result the Privacy Commissioner found that CCRA's decisions in response to the applicant's requests were appropriate and no further personal information was recommended to be released to Mr. DelZotto.

[6]                Thereafter on November 13, 2001 then new counsel for the applicant wrote to CCRA questioning its application, without explanation, of paragraph 22(1)(b) of the Act, and requesting any information concerning Mr. DelZotto retained by CCRA pursuant to subsection 8(4) of the Act. That provision directs:

[7]                At the same time, in November 2001, after the letter of November 6 from the Privacy Commissioner, counsel also provided consents from the applicant=s brothers, Angelo and Leo DelZotto, authorizing disclosure to the applicant of personal information about him which may appear in the files of the two brothers. This request was followed up by a further letter of November 13, 2001. There was no reply to those letters from counsel. After filing the application for review of CCRA's decision which initiated this proceeding, and after a further request from counsel and filing of a new consent from the applicant's brothers, an additional 132 pages or portions of pages of information, previously exempted from release by CCRA under section 26 of the Act, were provided to the applicant. Finally, in January 2004, a further five pages, previously claimed as exempt under paragraph 22(1)(b) of the Act were provided to the applicant.

[8]                At the time this matter was heard it was urged by counsel for the respondent Minister that there were comparatively few documents still claimed to be partially exempt under the Act. My understanding from the hearing and from the record is that there were some 27 pages of documents with redactions claimed as exempt by CCRA, two with exemptions claimed under paragraph 22(1)(b) of the Act, one of those and 24 others with exemptions claimed under section 26 and one page with an exemption claimed under section 27.

The Issues

[9]                The applicant contests the appropriateness of the exemptions claimed under the Act. Before considering submissions on that matter, I turn to other issues raised by Mr. DelZotto.

[10]            Those other matters concern his submissions that CCRA failed to conduct proper searches for the information requested, in effect refusing to disclose information produced by searches. The failure alleged concerns

            a)         files of his brothers;

            b)         records required to be kept under subsection 8(4) of the Act;

            c)         records with respect to special investigations, and to the 1972-1978 period.

Alleged failures to conduct proper searches/disclose information

[11]            By paragraph 12(1)(b) of the Act a Canadian citizen, on his or her request, shall be given access to personal information under control of a government institution for which the requestor provides specifics on location of the information to render it reasonably retrievable.

[12]            In this case the applicant's original requests in January 2000 sought information described as follows:

Without regard to where they may be situated, any and all records respecting the activities of Elvio DelZotto during the years 1972-1978 inclusive [and in the other requests for the years 1979-1985 inclusive, and 1986 - present inclusive, respectively].

Those requests were amplified by counsel's letter of February 8, 2000 which expressed the view that a full response to the requests for information "will provide a definitive answer as to all Revenue Canada dealings with Mr. DelZotto". That letter closed with the paragraph quoted above in these reasons at paragraph 2.

            a)         Files of the applicant's brothers

[13]            The first reference to the applicant's brothers' files as possible sources of information concerning Mr. DelZotto appears to have been in comments of his counsel to the Privacy Commissioner after the first disclosure of information in July 2000, a reference adverted to in the Commissioner's letter of November 6, 2001. Those sources were specifically requested to be searched as a source for his personal information, with formal consent of his brothers, in a letter from his counsel to CCRA on November 8, 2001. Of course that was after the second disclosure and the report of the Privacy Commissioner by letter of November 6, 2001.

[14]            Those possible sources of information, i.e. his brothers' files, were not specified in the original requests of January 2000 or in counsel's letter of February 8, 2000 which amplified the requests. Moreover, no consents by the applicant's brothers for access to their files was submitted to CCRA until after the final report of Privacy Commissioner.

[15]            In the circumstances the request to search the brothers' files cannot be considered a specific aspect of the original request to provide personal information of the applicant. No request was originally made to examine files of any other persons than those of the requestor himself. Failure to examine files of Mr. DelZotto's brothers was not tantamount to refusing to provide information as requested. The scope of the request must be taken as that originally set out or at most as amplified by the letter of February 8, 2000, not as it may later be revised, particularly after the report of the Privacy Commissioner.

            b)          Information sought in relation to subsection 8(4) of the Act

[16]            Subsection 8(4) requires the head of a government institution to retain a copy of every request received from an investigative body specified in regulations, for information desired for a lawful investigation, and a record of any information disclosed in response to such a request, and those records shall be produced to the Privacy Commissioner on request.

[17]            No information of this sort was disclosed by CCRA to the applicant before or after the investigation of his complaint by the Privacy Commissioner. Mr. DelZotto relies on the general description of information requested as set out in his requests in January 2000, and upon his counsel's letter of February 8, 2000, which, in its final paragraph at lines 5-7 as quoted at paragraph 2 of these reasons, stated that the records sought

[...] would include any and all records respecting intra or interdepartmental requests (and responses thereto) made since 1972 for access to files relating to the tax affairs of Mr. DelZotto. [...]

After further examples of records sought the letter also stated that the requests

[...] extend to any of the above described material that exists in any Headquarters Miscellaneous Files, Headquarters Case/Master Files, Headquarters Central Files. [...]

[18]            Later, the applicant specifically requested CCRA to seek information returned under subsection 8(4), by letter to the Privacy Commissioner from the applicant's counsel on July 27, 2000 and again by counsel's letter in November 2001. No material of that sort was released in the first or second disclosures, or in any information later released. No reference was made to the request contained in the letter of July 27, 2000 with reference to subsection 8(4) by the report of the Privacy Commissioner by letter of November 6, 2001. No response was made by CCRA to counsel's letter of November 2001.

[19]            In my opinion, the requests as amplified by the letter of February 8, 2000 for information retained under subsection 8(4) were sufficiently precise to constitute reasonable reference to the location of the particular information sought, for within its Public Affairs Branch, CCRA maintained an information bank, Number CCRA PPU 071 for information concerning requests, and responses to those, from investigative bodies, intended specifically to conform to the requirements of subsection 8(4) of the Act. By admission obtained through examination of the affiant for CCRA, the records maintained by the Public Affairs Branch, and in particular Bank Number CCRA PPU 071 were not searched for personal information of the applicant.

[20]            In this respect the applicant's request was sufficiently precise to facilitate retrieval of any personal information with respect to subsection 8(4). Yet the request was overlooked by CCRA and apparently also by the Privacy Commissioner. Neither made any response to this aspect of the applicant's request.

[21]            In the circumstances, I conclude the search for personal information of the applicant with reference to subsection 8(4) of the Act, was not adequately undertaken, particularly in regard to Information Bank CCRA PPU 071. Until that search is undertaken and any relevant information is considered for release to the applicant, or specifically exempt by CCRA under the Act, the failure of CCRA is deemed to be a refusal to produce information requested.

            c)         Other aspects of alleged failures to search/to disclose: The Special Investigations Division; the period 1972-1978

[22]            The applicant expected to receive documents containing personal information produced from the Special Investigations Units of one or both of two CCRA offices in Toronto, or from the Compliance Programs Branch of CCRA. The only information of that sort disclosed, from one of the Toronto offices was T1 forms of the applicant for the years 1981, 1983, 1984, 1985 and 1987. In addition, a diary display document for 1986 to the present indicated that the Special Investigations Unit had charged out the applicant's 1991 T1 form.

[23]            Further, internal documents of the Special Investigations Division from the 1980's concerning an inquiry into affairs of one of Mr. DelZotto's brothers, from the 1990's about the possibility that the applicant would be called as a witness in an inquiry, later that it was recommended he be prosecuted with his brother, and still later, in 2003, that it had been decided there would be no such prosecution of either of them.

[24]            In light of the references to possible proceedings involving the applicant, and the absence of any personal information disclosed except the T1 forms from the 1980's, the applicant urges that on a common sense standard there must be more documentation concerning him in the records of the Special Investigations Division. It is urged that failure to produce any such information, and failure to produce information that showed specifically that personal information about him had been destroyed, must be deemed to be a refusal to produce the information requested from the Special Investigations Division about investigations concerning the applicant.

[25]            The final aspect of alleged failure to produce information concerns the applicant's request for information from the 1972-1978 period. In counsel's letter of July 27, 2000 to the Privacy Commissioner, failure to produce information from that period is a basis of the complaint made after the first disclosure. With that disclosure was a printout from electronic information which summarized basic information drawn from returns of taxpayers for the period 1978-1979. By affidavit of Stewart Berson, on behalf of CCRA, the evidence is

[...] Any other records, other than those already provided, that did exist for that period [i.e.1972-1979] were disposed of in accordance with the CCRA's document retention policy. Any disposal of documents took place prior to receipt of the request of Mr. DelZotto.

There is no other evidence concerning existence of documents with personal information of the applicant from the 1972-1978 period in possession of CCRA.

[26]            The applicant urges that in the absence of information provided and without any evidence of specific directions to dispose of information held, the respondent's onus is not discharged to establish that requested information is exempt from disclosure. That onus does not arise unless there is some basis in evidence for concluding that the information requested is indeed in the possession of the government institution concerned. Here there is no evidentiary basis for such a conclusion.

[27]            In regard to information said to be in the Special Investigations Division, or for the period 1972-78, however logical it may be to perceive such information should exist, on the basis of common sense or on speculation from other information available to the applicant, the Court cannot ignore the only evidence before it. Here the affidavit of Mr. Berson states that at the time of the applicant's request there was no information in possession of CCRA that concerned Mr. DelZotto for the period 1972-1978, and no further information had been forwarded by the Special Investigations Division.

[28]            It is well settled that in the absence of evidence that personal information exists in the possession of a government institution, mere speculation that it should exist provides no basis for the Court to order production (see Sheldon Blank & Gateway Industries Ltd. v. the Minister of the Environment, 2001 FCA 374, Sheldon Blank v. Minister of Justice, 2004 FCA 287, per Létourneau J.A. at para. 76; and Clancy v. Canada (Minister of Health), [2002] F.C.J. No. 1825, per Blanchard J.). Where the evidence before the Court indicates that information requested does not exist there is no basis for deeming a refusal to produce requested information.

The application of exemptions under the Act by the CCRA

[29]            The exemptions claimed by CCRA are those set out in the following provisions of the Act:

[30]            All three of the exemptions in issue are discretionary, but exemptions under the Act are to be strictly construed.

[31]            The applicant urges that to justify exemption under paragraph 22(1)(b) the CCRA must establish that it was authorized to refuse to disclose the information and further that it properly exercised its discretion in deciding not to release the information. The exemption claimed need not be limited to a current investigation or an identifiable prospective investigation. It is sufficient if the information relates to potential investigations generally (Ruby v. Canada, [2002] 4 S.C.R. 3, para. 63). In the two cases still outstanding where this exemption was applied by CCRA, at the time those exemptions were determined the likelihood of harm arising from release of the redacted information is established by the confidential affidavit of Mr. Berson, for CCRA, at paragraphs 9-11.

[32]            One of the two remaining exemptions claimed under paragraph 22(1)(b), if it were now being reconsidered in light of information disclosed since the exemption was claimed might be more properly claimed under section 26, counsel for the respondent acknowledges. For the applicant it is urged that no variation in the exemption claimed should now be considered. That view I accept since this process is a review of decisions made already by CCRA. I do, however, accept that in the two instances of exemptions claimed under paragraph 22(1)(b), harm from disclosure is set out by Mr. Berson's affidavit, and the fact that the exemptions have been claimed is in itself evidence of the exercise of discretion by CCRA.

[33]            In the case of the one exemption claimed for the decision not to release information on grounds of solicitor-client privilege (section 27), the applicant urges that the burden on the respondent to justify exemption requires that CCRA establish it was authorized to refuse to disclose the information under section 27 and that it properly exercised its discretion to do so. The redacted information refers to communications in the nature of litigation advice to CCRA from the Department of Justice, a matter clearly within the scope of solicitor-client privilege. Failure to waive the privilege, and refusal to disclose the information, clearly demonstrates CCRA's exercise of its discretion.

[34]            There are, finally, the 24 instances of exemptions for disclosure, and redactions from information disclosed, on the basis of section 26, as information concerning a person other than the applicant. The applicant urges that for exemption on this ground the information redacted must be personal information about a person other than the requestor, but in light of subparagraph 8(2)(m)(i) of the Act which authorizes disclosure of such information where the public interest in disclosure clearly outweighs any invasion of privacy, the balancing of public interest and privacy, it is urged, must be demonstrated if the CCRA is to discharge its onus of establishing the proper exercise of its discretion.

[35]            The applicant relies on the decision of my colleague Mr. Justice Kelen in Cemerlic v. Canada (Solicitor General) 2003 FCT 133 at paras. 29-31. The respondent suggests that case is distinguishable and ought not to be relied upon here for there the information claimed exempt was names provided by the requestor himself to the government institution concerned, CSIS, and a balancing of the interest in privacy and the public interest in disclosure was required to be carried out in accord with section 26 and subparagraph 8(2)(m)(i).

[36]            As I read the decision in Cemerlic, Mr. Justice Kelen, following the Court of Appeal in Ruby v. Canada, [2000] 3 F.C. 589 (C.A.) at paras 112-125 (appeal allowed in part, with respect to other issues, Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3) found that, in the absence of evidence that the institutional head concerned, in the application of section 26 of the Act, had balanced the privacy interests of individuals whose personal information was refused to be disclosed with the public interest in disclosure, in accord with subparagraph 8(2)(m)(i) of the Act, there was not evidence that the discretion vested under section 26 had been appropriately exercised. That conclusion was similar to the one reached by Létourneau and Robertson J.J.A. in the Court of Appeal in Ruby, supra, at para. 124. In that decision, at para. 117, the learned judges wrote "... Clearly, Parliament intended that the head of a government institution consider and apply section 8 in some manner when using the section 26 exemption."

[37]            There is no reference in this case to consideration of the balancing of the public interest in disclosure and privacy interests. In the letters of CCRA (June 29, 2000 and October 1, 2000) covering the documents disclosed to the applicant, reference is made to section 26 of the Act as one of the bases for exemption. The same reference is included in the letter of November 6, 2001 from the Privacy Commissioner and that letter also states that

... The information exempted under this section [i.e., section 26] was thoroughly reviewed and I am satisfied that it is not Mr. DelZotto's personal information and that he does not have a right of access to it.

The affidavit of Mr. Berson in support of the respondent refers to exemptions claimed in respect of certain documents "... pursuant to section 26 of the Act because they contain personal information of other individuals". The inclusion of "26" as a marginal notation for certain redacted portions of documents released does not include any further explanation.

[38]            There is no evidence in the record of consideration of subparagraph 8(2)(m)(i) of the Act, or the balancing of privacy interests and the public interest in disclosure in the exercise of discretion under section 26. That is not surprising since the decisions of CCRA and the Privacy Commissioner, as well as the affidavit by Mr. Berson, all antedate the decision of the Court of Appeal in Ruby. Nevertheless, that decision establishes the process required to be followed in exercising discretion under section 26. I am not satisfied that process was here followed.

[39]            In that respect the decisions of CCRA in exercising discretion under section 26 will be set aside and the documents, including redactions made as exemptions, because they refer to personal information of others, shall be reconsidered by CCRA in accord with the process established by the Court of Appeal in Ruby, supra.

Conclusions

[40]            For the reasons set out I allow the application in part.

[41]            The claim of the applicant of inadequate search for information requested is allowed but only with respect to personal information of the applicant in records maintained in accord with subsection 8(4) of the Act, if such there be, within the Public Affairs Branch of CCRA, and particularly in Bank No. CCRA PPU 071.

[42]            The application is also allowed with respect to the exemptions claimed under section 26. The decisions to make those exemptions on that basis, and the documents containing those exemptions are referred back to CCRA for reconsideration in accord with the process established by Ruby, supra.

[43]            In the result the applicant is only partially successful. Yet the volume of information that may be disclosed as a result is likely to be relatively small. In considering costs, however, in addition to that measure of success, the finding by the Privacy Commissioner with respect to the first complaint to that office, that CCRA was in violation of the Act in its unwarranted delay in producing any information within the time limited by the Act and the extended period requested by CCRA itself, in my opinion, supports an award of costs to the applicant on the normal party and party basis at the mid range of column II under the Court's tariff.

[44]            Counsel are directed to consult on costs. If they are unable to agree costs shall be assessed in accord with my direction in the preceding paragraph.

                                                                       "W. Andrew MacKay"

D.J.F.C.

Halifax, Nova Scotia

May 9, 2005.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-2207-01

STYLE OF CAUSE: Elvio Del Zotto

and

Minister of National Revenue

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   November 4, 2004

REASONS FOR ORDER

AND ORDER OF    The Honourable Mr. Justice W. Andrew MacKay

DATED:                     May 9, 2005

APPEARANCES:

Mr. Robert Calderwood                                                FOR APPLICANT

Mr. Christopher Rupar                                                  FOR RESPONDENT

SOLICITORS OF RECORD:

Delzotto Zorzi LLP

Toronto, Ontario                                               FOR APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT