Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), 2001 FCT 231

Date: 20010322

Docket: T-1569-99

Neutral citation: 2001 FCT 231

BETWEEN:

THE INFORMATION COMMISSIONER OF CANADA

                                                                                                       Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

                                                                                                    Respondent

- and -

PHILIP W. PIRIE

                                                                                           Added Respondent

                                     REASONS FOR JUDGMENT

DAWSON J.

[1]                At issue in this application for judicial review is whether portions of the notes of interviews and the names of interviewees who expressed views and opinions about the added respondent, Mr. Pirie, during an administrative review of the respondent's Case Processing Centre ("CPC") in Vegreville, Alberta, were properly exempted from disclosure to Mr. Pirie under sections 19 and 20 of the Access to Information Act, R.S.C. 1985, c. A-1 ("Access Act").

THE FACTS

[2]                This application arises out of the request of Mr. Pirie for "[a]ll written records including notes from interviews related to the administrative review of CPC Vegreville prepared by TLS Enterprises" ("TLS").

[3]                Allegations of discriminatory behaviour and harassment at the respondent's CPC in Vegreville, Alberta, prompted the respondent to request that TLS, an independent consultant, "examine corporate culture, value, and systems in the CPC Vegreville with a view to enhancing respect in the workplace for all individuals". The methodology specified by Citizenship and Immigration Canada ("CIC") was to "be designed to gather information about the existing corporate culture, value and systems, as well as generate ideas from staff about initiatives aimed at enhancing respect in the workplace for all. Staff will be asked to define what is important to them in a respectful workplace, and their input will be used to create a definition of respectful workplace for the CPC".

[4]                Pursuant to its mandate, TLS conducted interviews in April, May and June of 1996. Prior to the interviews, staff were advised that the interviews would be confidential and that TLS had an agreement with CIC that TLS would maintain notes of the interviews, but would not pass the content of the interviews on to anyone in CIC. TLS's report was to be a summary of its findings and no remarks were to be attributed to any individual. This assurance of confidentiality apparently did not apply to Mr. Pirie or to other managers.

[5]                CPC Vegreville employees were given the opportunity to self-select for interviews. As well, some individuals were randomly selected to be interviewed and TLS invited particular individuals to be interviewed where TLS determined that parts of the CPC Vegreville workplace were not properly represented. The review was completed on June 30, 1996 and the final report of TLS was provided to CIC on July 1, 1996. The report was subsequently made public.

[6]                On the morning of July 10, 1996, Mr. Pirie, then the Director of CPC Vegreville, was given a copy of the TLS report. At approximately 2:00 p.m. that afternoon, at a meeting to discuss the report, Mr. Pirie was advised that he was immediately relieved of his duties as Director of CPC Vegreville. Mr. Pirie says that at that meeting he was told as well that in view of the problems identified in the TLS report a position previously offered to him in Winnipeg was withdrawn.

[7]                By request to CIC dated July 31, 1996, Mr. Pirie sought access to notes from the interviews conducted by TLS. That request caused the interview notes then in the possession of TLS to come into possession of CIC. Following two disclosures of requested documentation Mr. Pirie made a complaint to the Information Commissioner asserting that he was improperly denied access to records. Further disclosures were subsequently made by CIC to Mr. Pirie.

[8]                On March 30, 1999, the Information Commissioner reported the results of his investigation into the complaint and recommended the disclosure of:

i)           views or opinions about Mr. Pirie expressed by others;

ii)          the identities of those expressing such views or opinions; and

iii)          any views or opinions given by public officials in the course of employment.

[9]                On June 11, 1999, CIC released further records containing opinions expressed by others about Mr. Pirie. The names of the persons interviewed along with information about their position at CPC Vegreville were not disclosed. Similarly, where disclosure of the information would reveal the identity of the interviewee, any information about the interviewee that was intertwined with the views or opinions of the interviewee about Mr. Pirie was severed from the records disclosed to Mr. Pirie. The non-disclosure of documentation was said to be based upon the provisions of paragraph 16(1)(c), section 17, subsection 19(1) and subsection 20(1) of the Access Act.

[10]            Therefore, the information that remains in dispute concerns the names of the people who were interviewed by TLS and opinions expressed by them where disclosure of that information was refused because it would identify the interviewee.

THE ISSUES

[11]            The respondent no longer relies upon sections 16 or 17 of the Access Act. The applicant therefore raises three issues with respect to the respondent Minister's decision to deny disclosure:

(1)         Whether the respondent discharged its burden of establishing that it was authorized to refuse disclosure of the requested records or portions thereof pursuant to subsection 19(1) of the Access Act?;

(2)         Whether the respondent properly considered subsection 19(2) of the Access Act and subparagraph 8(2)(m)(ii) of the Privacy Act, R.S.C. 1985, c. P-21?; and

(3)         Whether the respondent was authorized to refuse disclosure pursuant to paragraphs 20(1)(c) and (d) of the Access Act?

RELEVANT LEGISLATIVE PROVISIONS

[12]            Sections 19 and 20 of the Access Act are as follows:

[13]            The definition of "personal information" found in section 3 of the Privacy Act is:

ANALYSIS

(i) Did the respondent discharge its burden of establishing that it was authorized to refuse disclosure of the requested records or portions thereof pursuant to subsection 19(1) of the Access Act?

[14]            Section 48 of the Access Act makes it clear that the burden of proof is on the respondent Minister to establish that her refusal to disclose records is justified under that Act.

[15]            In order to determine if the Minister's refusal was justified, I begin by observing that in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, the Supreme Court of Canada considered both the broad general interpretive principles applicable to the Access Act and to the Privacy Act and the interpretation to be given to the definition of "personal information" under section 3 of the Privacy Act.

[16]            All members of the Court agreed upon the approach to be taken to interpret the Access Act and the Privacy Act and agreed that, on the facts then before the Court, the names on sign-in logs were "personal information" within the meaning of that phrase as defined in section 3 of the Privacy Act. Members of the Court differed as to whether disclosure was required pursuant to subsection 3(j) of the Privacy Act.

[17]            The following principles articulated by the Supreme Court in Dagg are relevant to the issues raised in this application:

i)           The underlying purposes of both the Access Act and the Privacy Act must be given equal effect (at para 51);

ii)          While access is the general rule, the personal information exception must not be given a narrow interpretation and "in so far as it is encompassed by the definition of ‘personal information' in s. 3 of the Privacy Act, privacy is paramount over access" (at para 48);

iii)          Regard must be had to the purposes of both statutes when considering whether information is "personal information" (at para 55);

iv)         The definition of "personal information" is expansive and the general opening words of the definition "information about an identifiable individual that is recorded in any form" are intended to be the primary source of interpretation (at para 68);

v)          Once it is determined that a record falls within the opening words of the definition of "personal information" it is not necessary for it to be encompassed by any one of the specific examples set out in paragraphs (a) to (i) of the definition (at para 77); and

(vi)        Paragraph (i) of the definition provides that the name of an individual is personal information if the disclosure of the name itself would reveal information about the individual. There is no requirement that the information revealed be "personal information" (at para 85).

[18]            Applying those principles, I note that the purpose of the Access Act, as articulated in subsection 2(1) of the statute, is to extend the laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public and necessary exceptions to that right should be limited and specific. The purpose of the Privacy Act, as articulated in section 2 of the statute, is to extend the laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.

[19]            I then move to the general opening words of the definition of "personal information" found in section 3 of the Privacy Act. It follows, in my view, from that expansive definition alone that an individual's views or opinions about Mr. Pirie and the fact that it was that individual's view or opinion would be personal information of Mr. Pirie. In addition, the fact of the holding of the opinion and the opinion itself would also be personal information of the individual, if the individual was identifiable.

[20]            However, as noted in E. A. Driedger, The Construction of Statutes, 2^nd Edition (Toronto, Butterworths, 1983) at page 87:

Today there is only one principle or approach, [to statutory interpretation] namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[21]            It is therefore necessary to review the balance of the definition of personal information, that is the enumerated exemplifiers, to ensure that the above conclusion, based upon the opening words of the definition alone, accords with the balance of the definition.

[22]            Three paragraphs are immediately relevant: paragraphs (e), (f) and (i).

[23]            In paragraph (e), Parliament has made it clear that while under the broad opening words of the definition the personal opinion or views of an identifiable individual would be that individual's personal information, that is not the case where the opinions or views are about another individual.

[24]            Parliament's intent is further evidenced in paragraph (g), which is the reciprocal of paragraph (e). Paragraph (g) makes it clear that an individual's opinion about, in this case, Mr. Pirie becomes or is Mr. Pirie's personal information.

[25]            Paragraphs (e) and (g), while dealing with the substance of an individual's opinions or views, are silent as to the fact that it is the view or opinion of an identifiable individual. However, the fact that neither paragraph (e) nor (g) deal with the name or identity of the holder of the view or opinion does not mean that such information is not personal information. As noted by the Supreme Court in Dagg, the fact that information is not captured by one of the specified examples found in the definition is irrelevant if the information is otherwise captured by the broad opening words of the definition.

[26]            One paragraph in the definition of personal information deals expressly with an individual's name. That is paragraph (i). The effect of paragraph (i) is that the name of an identifiable individual is the personal information of that individual in one of two situations: first, where the name appears with other personal information relating to the individual; second, where disclosure of the name would reveal information (not necessarily personal information) about the individual.

[27]            Applying paragraph (i) of the definition of personal information, the name of the holder of an opinion or view will be that person's personal information under paragraph (i) if it appears with other personal information about that person. Because that person's opinion about Mr. Pirie is not that person's personal information, the name of the holder of the view or opinion is not per se his or her personal information based on the first branch of paragraph (i).

[28]            The name of the holder of the view or opinion is also that person's personal information where, under the second branch of paragraph (i), the disclosure of the person's name itself would reveal information about the individual.

[29]            Leaving aside for the moment the impact of paragraph (j) of section 3 of the Privacy Act, it follows from the above analysis that the name of the holder of the view or opinion would only be properly withheld from Mr. Pirie if the disclosure of the name would reveal information about the holder of the view or opinion.

[30]            Here, the respondent Minister asserts that revealing the names of those persons who held views and opinions of Mr. Pirie would reveal personal information about them, namely that they participated in the administrative review.

[31]            The Information Commissioner responds that this interpretation would entitle a department to withhold the names of witnesses when an administrative review or investigation does not involve all of the employees. This is said to be contrary to the purpose of the Act, particularly in the context of subparagraph 16(1)(c)(ii) of the Access Act which provides an exemption for the identity of a confidential source of information. The Information Commissioner also argues that disclosure of the interviewee's name does not reveal personal information about individual interviewees.

[32]            In my view, the Information Commissioner's concerns on these points may be answered as follows. First, whether this interpretation as a matter of policy properly entitles a department to withhold the names of witnesses will depend upon the proper interpretation to be given to paragraph (j) of the definition of personal information where Parliament has expressed its intent with respect to personal information about officers or employees of government institutions. Second, the latter branch of paragraph 3(i) does not require the disclosure of the name to thereby reveal personal information about the individual. Paragraph 3(i) simply requires the disclosure of the name to reveal information about the individual.

[33]            The question, therefore, is whether the disclosure of the names of interviewees itself reveals information about those individuals? In Dagg the minority of the Court, concurred with by the majority, found that the disclosure of names on a sign-in sheet would reveal information, indeed personal information, about identifiable individuals. That information was that certain employees attended their workplace on particular days.

[34]            By analogy, in the present case I find that disclosure of the names of interviewees would reveal information about those individuals so as to fall within the second branch of paragraph 3(i) of the Privacy Act. Given that not all individuals employed at the CPC participated in the review, the information revealed would be that such individuals participated in the administrative review.

[35]            Having so concluded, the final analysis required pursuant to subsection 19(1) of the Access Act is to determine whether the exception found in paragraph 3(j) of the definition of personal information in the Privacy Act applies.

[36]            Before moving to consider this issue, two arguments advanced by the Information Commissioner as to why disclosure of the names would not disclose personal information about the interviewees should be dealt with. The first argument was that in view of the specific exclusion of the name of a referee in paragraph (h) of the definition, the absence of any reference to the exclusion of a person's name in paragraph (g) of the definition should be taken as an indication of Parliament's intent that an identifiable individual may not anonymously express an opinion or view about another individual. While at first glance persuasive, in my view this method of statutory interpretation is not applicable where the general opening words of the definition are intended to be the primary source of interpretation and the subsequent enumerations merely exemplifiers.

[37]            Second, the Information Commissioner pointed to the fact that pursuant to paragraph 71(1)(c) of the Privacy Act the Treasury Board has published a manual on Privacy and Data Protection which states that:

Section 26 of the Privacy Act provides that a government institution may refuse to disclose any personal information about an individual other than the requestor.

[...]

This exemption does not cover the name of a source of information about an individual (e.g. the source of an opinion or critique of an individual's work), except in some specific cases. As provided in paragraph 3(e) and (h) of the definition of personal information, the exemption covers the name of a referee or judge for a grant, award or price for those institutions named in the Regulations (Schedule I). Except as provided in paragraphs 3(e) and (h) of the Act, the name of the source and the information or opinion about the individual cannot be exempted.

[38]            The Information Commissioner argued that the interpretation of a statute by an administrative body charged with its implementation and application offers "persuasive opinion on the purpose or meaning of legislation" and so may aid the Court in its interpretation. Reference was made to the decision of Rothstein J., as he then was, in Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.) at page 341.

[39]            While persuasive, the Court is not bound by an interpretation which represents only the non-binding opinion of the Treasury Board or its officials. I have concluded in the present case that the approach to the interpretation of the Privacy Act and the Access Act set out by the Supreme Court of Canada in Dagg does not lead to the interpretation set forth in the Treasury Board manual as quoted above.

[40]            I turn now to consider whether disclosure is required pursuant to paragraph 3(j) of the definition of personal information which, for ease of reference, states that personal information does not include:

[41]            At issue in the present case is whether the disputed information can be said to be personal opinions or views of an individual given in the course of employment, and whether the information falls within the opening words of subsection 3(j).

[42]            In Dagg at paragraph 94, the majority of the Supreme Court of Canada considered the purpose of subsection 3(j) and paragraph 3(j)(iii) of the Privacy Act, concurring with the minority that the purpose is:

... to exempt only information attaching to positions and not that which relates to specific individuals. Information relating to the position is thus not "personal information", even though it may incidentally reveal something about named persons. Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is "personal information".

The majority then concluded that the sign-in logs provided information which would permit a general assessment of the amount of work required for a particular position or function so that it was information "that relates to" the position or function of the individual and hence such information fell within the opening words of subsection 3(j).

[43]            In considering the applicability of subsection 3(j) to the present facts, I have concluded that a distinction must be drawn between those employees who were managers with certain responsibilities and functions, and those who were not.

[44]            With respect to managers, counsel for the Information Commissioner noted that the names of several interviewees were disclosed to Mr. Pirie, together with the notes taken at their interviews. This release was justified on the Minister's behalf because in all cases the names and notes released were in respect to "managers" with responsibility to prevent harassment in the workplace or to administer the harassment policy. The information was thus viewed to be opinions or views given in the course of employment. The correctness of that view was not challenged in this proceeding.

[45]            The Minister's representative acknowledged on cross-examination that seven senior managers at the CPC in Vegreville were interviewed during the administrative review, but that she did not know who they were, what their positions were, or what their role was. The Minister's representative did not know who acted in the place of Mr. Pirie in his absence. Rather "[w]here it was clear that it was the role of an individual, mostly at headquarters, to prevent harassment in the workplace, their identity has been revealed". The Minister's representative answered the question "[a]nd you're saying that you are not aware of the structure of management out there; who was part of management, who was not part of management during that period of time, and who of these persons have been interviewed?" in the negative.

[46]            The burden of proving that a record does not fall within the exception set out in subsection 3(j) of the Privacy Act is on the Minister (see Dagg at paragraph 90).

[47]            On the evidence recited above, I conclude that with respect to the names and opinions of individuals at the CPC in Vegreville with responsibility to prevent harassment in the workplace or to otherwise administer a harassment policy, the Minister has failed to meet the onus of proving that the information does not fall within subsection 3(j) of the Privacy Act.

[48]            With respect to employees of the CPC in Vegreville without responsibility for preventing harassment, I conclude that their names, are not information attaching to their position or function, but rather are information relating primarily to the individuals themselves. It follows for this class of non-management employees that the requested information does not fall within paragraph 3(j) of the Privacy Act. I have reached this conclusion taking into account that:

(i)          a review of the TLS report shows that it also dealt with racism in the community of Vegreville (detailing, for example, racist conduct directed at the children of employees at school or on the school bus). This goes well beyond workplace issues;

(ii)         former employees were interviewed;

(iii)        participation in the administrative review was voluntary, notwithstanding that some employees were invited to participate; and

(iv)        the names of the persons interviewed were not provided to CIC until after Mr. Pirie's complaint. This shows, I believe, that the names were not required for any work-related purpose.

(ii) Did the respondent properly consider subsection 19(2) of the Access Act and subparagraph 8(2)(m)(ii) of the Privacy Act?

[49]            For ease of reference, paragraph 19(2)(c) of the Access Act and subparagraph 8(2)(m)(ii) of the Privacy Act are repeated here:

[50]            Fundamental to any review of the exercise of discretion is the determination of the proper standard of review.

[51]            In Dagg, in this respect, the majority of the Supreme Court commented as follows, at paragraph 16:

Second, in light of the conclusion that the information must be disclosed, it is not necessary for me to consider whether the Minister erred in his exercise of the discretion conferred upon him pursuant to s. 19(2) of the Access to Information Act and s. 8 of the Privacy Act. In general, I agree with La Forest J.'s conclusion that a Minister's discretionary decision under s. 8(2)(m)(i) is not to be reviewed on a de novo standard of review. Perhaps it will suffice to observe that the Minister is not obliged to consider whether it is in the public interest to disclose personal information. However in the face of a demand for disclosure, he is required to exercise that discretion by a least considering the matter. If he refuses or neglects to do so, the Minister is declining jurisdiction which is granted to him alone.

[52]            La Forest J., for the minority, had stated at paragraph 111:

The fact that a statutory power is discretionary does not mean, of course, that a decision made pursuant to it is immune from judicial oversight. It may always be alleged that the discretion was abused. The correct standard of review was articulated by McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2, at pp.7-8:

It is... a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[53]            Neither the applicant nor Mr. Pirie adduced evidence of any bad faith, unfairness, or consideration of irrelevant matters.

[54]            The decision-maker swore that she considered the exceptions outlined under subsection 19(1) of the Access Act and determined that none of the provisions of section 8 of the Privacy Act applied.

[55]            The only deficiency the Information Commissioner points to is that the decision-maker was not aware as to how the TLS report was used against Mr. Pirie. It is asserted that Mr. Pirie's ability to refute the comments made about him in the TLS report was "limited by the manner in which the respondent chose to provide the TLS Report to him".

[56]            The TLS report was provided to Mr. Pirie. He was provided an opportunity to provide written representations in response to that report to the Deputy Minister. As well, the decision-maker, in the public portion of her cross-examination, swore that when exercising her discretion she knew that the non-disclosed notes were not used against Mr. Pirie because they were not in the possession of the department until after Mr. Pirie had filed his complaint.

[57]            On this evidence, given the deference to be accorded to the decision, I cannot conclude that the exercise of discretion under subsection 19(2) of the Access Act was improper.

(iii) Was the respondent authorized to refuse disclosure pursuant to paragraphs 20(1)(c) and (d) of the Access Act?

[58]            For ease of reference, these paragraphs are repeated:

[59]            In Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.), the Federal Court of Appeal considered paragraphs (c) and (d) of subsection 20(1) of the Access Act and concluded that a party seeking to prevent disclosure pursuant to these provisions must establish "a reasonable expectation of probable harm". The expectation of harm cannot be based on speculation or mere possibility.

[60]            The only relevant evidence before the Court is a letter from a principal of TLS attached as an exhibit to the affidavit of the decision-maker. The letter was written to express the concerns of TLS: the primary issue was said to be TLS's concern for the individual staff "who spoke honestly to us on the understanding that their remarks would be confidential". TLS's second concern was said to be for itself as a business. Its principal stated her belief that TLS's opportunity for future contracts "will be negatively impacted if we promise confidentiality to individuals, they give us their honest perceptions of events based on an understanding of confidentiality, and then that agreement is broken". The principal also expressed the concern that to negate a promise of confidentiality would seriously impede TLS's ability to investigate systemic issues. The letter concluded "[w]e would like to request that, in the interest of the employees at the CPC and in the interest of allowing organizations to deal with systemic harassment, the interview notes be kept confidential".

[61]            I accept the submission of counsel for the Information Commissioner that this letter is inadmissible hearsay evidence which offends Rule 81(1) of the Federal Court Rules, 1998.

[62]            There is therefore insufficient evidence of a reasonable expectation of probable harm for disclosure to be withheld on the basis of paragraph (c) and (d) of subsection 20(1) of the Access Act.

CONCLUSION

[63]            For the reasons given, I have not been persuaded that the application for judicial review should be allowed except to the extent that I have concluded that the identities of all managers with responsibility to prevent harassment in the workplace or to administer a harassment policy who were interviewed should be disclosed to Mr. Pirie together with any of their recorded opinions or views they had which have not already been disclosed to Mr. Pirie.

[64]            To the extent that the applicant was successful in that one respect I direct, pursuant to sub-Rule 394(1) of the Federal Court Rules, 1998, that the applicant prepare for endorsement a draft order to implement my conclusions. Such draft order should be approved as to form by counsel for the respondent. In the event the parties cannot agree on the form of the order a motion should be brought for judgment in accordance with Rule 369.

"Eleanor R. Dawson"

                                                                                                                                   J.F.C.C.                       

Toronto, Ontario

March 22, 2001

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                    T-1569-99

STYLE OF CAUSE:                                         THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                 Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

                                                                                                              Respondent

- and -

PHILIP W. PIRIE         

                                                                                                     Added Respondent

DATE OF HEARING:                          MONDAY, JANUARY 22, 2001

PLACE OF HEARING:                                    EDMONTON, ALBERTA

REASONS FOR JUDGMENT BY:                 DAWSON J.

DATED:                                                            THURSDAY, MARCH 22, 2001

APPEARANCES BY:                                     Daniel Brunet, and

Emily McCarthy

For the Applicant

Christopher Rupar

For the Respondent

Philip W. Pirie

For the Added Respondent, on his own behalf

SOLICITORS OF RECORD:                       The Information Commissioner of Canada

112 Kent St., 22^nd Floor

Ottawa, Ontario

K1A 0H3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

Philip W. Pirie

5810 55^th Street

Vegreville, Alberta

T9C 1J6                                                                       

For the Added Respondent, on his own behalf

FEDERAL COURT OF CANADA

                                              Date: 20010322

                                                                                                                Docket: T-1569-99

Between:

THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                 Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

                                                                                                              Respondent

- and -

PHILIP W. PIRIE    

                                                                                                     Added Respondent

REASONS FOR JUDGMENT