Docket: A-218-14
Citation: 2015 FCA 140
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CORAM:
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RYER J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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DR. GÁBOR LUKÁCS
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Applicant
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and
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CANADIAN TRANSPORTATION AGENCY ET
AL.
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Respondents
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and
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THE PRIVACY COMMISSIONER OF CANADA
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Intervener
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and
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THE
ATTORNEY GENERAL OF CANADA
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Intervener
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REASONS FOR
JUDGMENT
RYER J.A.
[1]
Dr. Gábor Lukács is a Canadian air passenger
rights advocate. He brings this application for judicial review of a decision
of the Canadian Transportation Agency (the “Agency”) to refuse his request for
an unredacted copy of the materials that the Agency placed on its public record
in a dispute resolution proceeding between Air Canada and a family whose flight
from Vancouver to Cancun had been delayed (the “Cancun Matter”).
[2]
The Agency is constituted under the Canada
Transportation Act, S.C. 1996, c.10 (the “CTA”). The jurisdiction of the
Agency is broad, encompassing economic regulatory matters in relation to air,
rail and marine transportation in Canada, and adjudicative decision-making in
respect of disputes that arise in areas under its jurisdiction.
[3]
When engaged in adjudicative dispute resolution,
the Agency acts in a quasi-judicial capacity, functioning in many respects like
a court of law, and members of the Agency, as defined in section 6 of the CTA,
function like judges, in many respects.
[4]
Adjudicative proceedings before a court of law
are subject to the open court principle, which generally requires that such
proceedings, the materials in the record before the court and the resulting
decision must be open and available for public scrutiny, except to the extent
that the court otherwise orders.
[5]
These rights of access to court proceedings,
documents and decisions are grounded in common law, as an element of the rule
of law, and in the Constitution, as an element of the protection accorded to
free expression by s.2(b) of the Canadian Charter of Rights and
Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982 c. 11 (the “Charter”).
[6]
Court-sanctioned limitations on the rights
arising from the open court principle are often imposed under the procedural rules
applicable to the court. In the context of the Charter, the
appropriateness of requested limitations to the open court principle are
determined under a judge-made test requiring the court to consider whether the salutary
effects of the requested limitation on the administration of justice outweighs
the deleterious effects of that limitation.
[7]
In responding to Dr. Lukács’ request for the
materials on its public record in the Cancun Matter, the Agency acknowledged
that it was subject to the open court principle. However, the Agency asserted
that, unlike courts of law, the application of that principle to the Agency`s
public record was circumscribed by the provisions of the Privacy Act, R.S.C.,
1985, c. P-21 (the “Privacy Act”). Thus, before providing the materials
to Dr. Lukács, one of the Agency’s administrative employees removed portions of
them that she determined to contain personal information (“Personal Information”),
as defined in section 3 of the Privacy Act.
[8]
The Agency refused Dr. Lukács’ further request
for a copy of the unredacted material on its public record, asserting that
subsection 8(1) of the Privacy Act prevented it from disclosing Personal
Information under its control.
[9]
Dr. Lukács brought this application for judicial
review challenging the Agency’s refusal to provide the unredacted materials on
a number of bases. Among his arguments, he asserted that because the requested materials
had been placed on the Agency’s public record (“Public Record”) in accordance
with subsection 23(1) of the Canadian Transportation Agency General Rules,
SOR/2005-35 (the “Old Rules”), all of those materials – in an unredacted form –
were publicly available (“Publicly Available”) within the meaning of subsection
69(2) of the Privacy Act, and, as such, the prohibition on disclosure in
subsection 8(1) of the Privacy Act does not apply to his request.
[10]
In my view, this argument is persuasive and,
accordingly, the Agency’s refusal to provide an unredacted copy of the
requested materials to Dr. Lukács is impermissible.
I.
BACKGROUND
[11]
The Agency’s decision in the Cancun Matter (Decision
55-C-A-2014) dealt with a claim for compensation for denied boarding and costs
from flight delays that was made by a family in relation to a flight from
Vancouver to Cancun, Mexico.
[12]
On February 14, 2014, Dr. Lukács made a request
to the Secretary of the Agency for a copy of all of the public documents that
were filed with the Agency in the Cancun Matter.
[13]
On February 24, 2014, Ms. Patrice Bellerose, a staff
employee of the Agency, sent an email to Dr. Lukács indicating that the Agency
would provide the Public Record as soon as they could do so.
[14]
On March 19, 2014, Ms. Bellerose sent an email
to Dr. Lukács that contained a copy of the materials that had been filed, but
portions of those materials were redacted.
[15]
Ms. Bellerose made the redactions on the basis
that section 8 of the Privacy Act prevented the Agency from disclosing
what she determined to be Personal Information contained
in the materials that the Agency placed on its Public Record.
Importantly, none of the materials filed in the Cancun Matter was subject to a
confidentiality order, which the Agency was empowered to make, pursuant to
subsections 23(4) to (9) of the Old Rules, upon request from any person who
files a document in any given proceeding.
[16]
On March 24, 2014, Dr. Lukács wrote to the
Secretary of the Agency requesting “unredacted copies
of all documents in File No. M4120-3/13-05726 with respect to which no confidentiality
order was made by a member of the Agency.”
[17]
On March 26, 2014, Mr. Geoffrey C. Hare, Chairperson
and CEO of the Agency, wrote to Dr. Lukács and, without specifically so
stating, refused (the “Refusal”) to accede to
Dr. Lukács’ request for unredacted copies of the materials (the “Unredacted
Materials”) in the Cancun Matter.
[18]
On April 22, 2014, Dr. Lukács brought this
application for judicial review in respect of the Agency’s practice of limiting
public access to Personal Information in documents filed in the Agency’s adjudicative
proceedings, specifically challenging the refusal of the Agency to provide him with
the Unredacted Materials.
[19]
The relief sought by Dr. Lukács is as follows:
l. a declaration that adjudicative proceedings before the
Canadian Transportation Agency are subject to the constitutionally protected
open-court principle;
2. a declaration that all information, including but not limited
to documents and submissions, provided to the Canadian Transportation Agency in
the course of adjudicative proceedings are part of the public record in their
entirety, unless confidentiality was sought and granted in accordance with the
Agency’s General Rules;
3. a declaration that members of the public are now entitled
to view all information, including but not limited to documents and
submissions, provided to the Canadian Transportation Agency in the course of
adjudicative proceedings, unless confidentiality was sought and granted in
accordance with the Agency’s General Rules;
4. a declaration that information provided to the Canadian
Transportation Agency in the course of adjudicative proceedings fall within the
exceptions of subsections 69(2) and/or 8(2)(b) and/or 8(2)(m) of
the Privacy Act, R.S.C. 1985, c. P-21;
5. in the alternative, a declaration that provisions of the Privacy
Act, R.S.C. 1985, c. P-21 are inapplicable with respect to information,
including but not limited to documents and submissions, provided to the
Canadian Transportation Agency in the course of adjudicative proceedings to the
extent that these provisions limit the rights of the public to view such
information pursuant to subsection 2(b) of the Canadian Charter of
Rights and Freedoms;
6. a declaration that the power to determine questions
related to confidentiality of information provided in the course of
adjudicative proceedings before the Canadian Transportation Agency is reserved
to Members of the Agency, and cannot be delegated to Agency Staff;
7. an order of mandamus directing the Canadian
Transportation Agency to provide the Applicant with unredacted copies of the
documents in File No. M4120-3/13-05726, or otherwise allow the Applicant and/or
others on his behalf to view unredacted copies of these documents;
8. costs and/or reasonable
out-of-pocket expenses of this application;
9. such further and other relief or directions as the
Applicant may request and this Honourable Court deems just.
[20]
By order dated December 10, 2014, Stratas J.A.
granted the Privacy Commissioner of Canada (the “Privacy Commissioner”) leave
to intervene in this application on the basis that the application raises
issues as to whether certain provisions of the Privacy Act provide
justification for the Refusal.
[21]
On November 21, 2014, Dr. Lukács filed a Notice
of Constitutional Question in which he challenged the constitutional validity
of certain provisions of the Privacy Act. Dr. Lukács contends that he
has a constitutional right under the open court principle, protected by
paragraph 2(b) of the Charter, to obtain the Unredacted Documents. He
submitted that, if any provisions of the Privacy Act limit his right to
obtain such documents, those provisions infringe
paragraph 2(b) of the Charter. Further, Dr. Lukács argues that
any infringement is not saved under section 1 of the Charter.
[22]
On March 5, 2015, the Attorney General of
Canada filed a Memorandum of Fact and Law and became a party to this
application.
II.
THE REFUSAL
[23]
In the Refusal, Chairperson Hare stated that the
Agency is a government institution (“Government Institution”), as defined under
section 3 of the Privacy Act, that is subject to the full application of
that legislation. He then referred to sections 8, 10 and 11 of the Privacy
Act and stated that:
The purpose of the Act is to protect the
privacy of individuals with respect to personal information about themselves
held by a government institution. Section 8 of the Act is clear that, except
for specific exceptions found in that section, personal information under the
control of a government institution shall not, without the consent of the
individual to whom it relates, be disclosed by the institution. Also, in
accordance with sections 10 and 11 of the Act, personal information under the
control of a government institution such as the Agency must be accounted for in
either personal information banks or classes of personal information. Because
there are no provisions in the Act that grant to government institutions that
are subject to the Act, the discretion not to apply those provisions of the
Act, personal information under the control of the Agency is not disclosed
without the consent of the individual and are accounted for either in personal
information banks or classes of personal information and consequently published
in InfoSource. This is all consistent with the directions of the Treasury Board
Canada Secretariat.
Although Agency case files are available to
the public for consultation in accordance with the open court principle,
personal information contained in the files such as an individual’s home
address, personal email address, personal phone number, date of birth,
financial details, social insurance number, driver’s licence number, or credit
card or passport details, is not available for consultation.
The file you requested has such sensitive
personal information and it has therefore been removed by the Agency as
required under the Act.
[24]
While these reasons do not explicitly so state,
it is apparent to me that the Agency concluded that subsection 8(1) of the Privacy
Act circumscribes the scope and ambit of the open court principle. Thus, the
Agency concluded that subsection 8(1) of the Privacy Act requires it to
redact Personal Information contained in documents placed on its Public Record
in dispute resolution proceedings before such documents can be disclosed to a
member of the public who requests them.
[25]
Chairperson Hare’s reasons do not explain why
any of the disclosure-permissive provisions in the Privacy Act, such as
paragraphs 8(2)(a), (b) or (m), are inapplicable to Dr. Lukács’
request. Additionally, his reasons do not discuss whether the Personal
Information that the Agency redacted, in intended compliance with the
non-disclosure requirement in subsection 8(1) of the Privacy Act, was Publicly
Available.
III.
ISSUES
[26]
This appeal raises two general issues:
(a)
whether subsection 8(1) of the Privacy Act
requires or permits the Agency to refuse to provide the Unredacted Materials to
Dr. Lukács (the “Refusal Issue”); and
(b)
if the answer to the first issue is in the affirmative,
whether subsection 8(1) of the Privacy Act infringes upon Dr. Lukács’
rights under paragraph 2(b) of the Charter (the “Constitutional
Issue”).
IV.
ANALYSIS
A.
Introduction
The open court
principle
[27]
I will begin this analysis by considering what
is meant by the open court principle. In the words of Chief Justice McLachlin
in her speech “Openness and the Rule of Law”
(Annual International Rule of Law Lecture, delivered in London, United Kingdom,
8 January 2014), at page 3:
The open court principle can be reduced to
two fundamental propositions. First, court proceedings, including the
evidence and documents tendered, are open to the public. Second, juries
give their verdicts and judges deliver their judgments in public or in
published form.
[Emphasis added]
[28]
It is the first aspect of this formulation that
is presently in issue. More particularly, the issue under consideration relates
to disclosure of documents that were on the Agency’s Public Record and formed the
basis for its decision in the Cancun Matter.
[29]
The open court principle has been recognized for
over a century, as noted by the Supreme Court in Named Person v. Vancouver
Sun, 2007 SCC 43, [2007] 3 S.C.R. 253 at paragraph 31. In that case,
Bastarache J. stated at paragraph 33:
In addition to its longstanding role as a
common law rule required by the rule of law, the open court principle gains importance
from its clear association with free expression protected by s. 2(b) of
the Charter. In the context of this appeal, it is important to note that s. 2(b)
provides that the state must not interfere with an individual’s ability to
“inspect and copy public records and documents, including judicial records and
documents (Edmonton Journal v. Alberta (Attorney
General), [1989] 2 S.C.R. 1326, at 1328, citing Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978), at p. 597). La Forest J. adds at
para. 24 of [Canadian Broadcasting Corp. v. New Brunswick (Attorney General),
[1996] 3 S.C.R. 480]: “[e]ssential to the freedom of the press to provide
information to the public is the ability of the press to have access to this
information” (emphasis added). Section 2(b) also protects the
ability of the press to have access to court proceedings (CBC, at para.
23; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75,
at para. 53).
[Emphasis added]
[30]
Thus, where the open court principle is
unrestricted in its application, a member of the public has a common law and perhaps
a constitutional right to inspect and copy all documents that have been placed
on the record that is or was before a court.
[31]
An important consideration is whether there are
any limits on the extent of the application of the open court principle. Clearly,
there are.
[32]
In Nova Scotia (Attorney General) v.
MacIntyre, [1982] 1 S.C.R. 175, 132 D.L.R. (3d) 385, Dickson J., as he then
was, stated at page 189:
Undoubtedly every court has a supervisory
and protecting power over its own records. Access can be denied when the ends
of justice would be subverted by disclosure or the judicial documents might be
used for an improper purpose. The presumption, however, is in favour of public
access and the burden of contrary proof lies upon the person who would deny the
exercise of the right.
[33]
In the context of access to documents, courts
generally have procedural rules that permit the filing of documents on a
confidential basis where an order to that effect is obtained. For example, sections
151 and 152 of the Federal Courts Rules, SOR/98-106 set out a scheme for
claiming confidentiality with respect to materials filed in proceedings before the
Federal Court and this Court. Importantly, subsection 151(2) of those Rules
stipulates that before a confidentiality order can be made, the Court must be
satisfied that the material should be treated as confidential, notwithstanding
the public interest in open and accessible court proceedings. Thus, both the
Federal Court and this Court are empowered to circumscribe the open court
principle in appropriate circumstances.
[34]
More broadly, limitations on the application of
the open court principle have been challenged, in a number of circumstances, on
the basis that they infringe upon rights protected under s 2(b) of the Charter.
For example:
(a) A time-limited publication ban to protect the identity of undercover
police officers was upheld, but a publication ban on police operational methods
was found to be unnecessary (R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R.
442);
(b) In connection with the construction and sale of two nuclear reactors
by a Crown corporation to China, the Supreme Court granted a confidentiality
order with respect to an affidavit that contained sensitive technical
information about the ongoing environmental assessment of the construction site
by Chinese authorities (Sierra Club of Canada v. Canada (Minister of
Finance), 2002 SCC 41, [2002] 2 S.C.R. 522);
(c) A request for a blanket sealing order with respect to search
warrants and supporting information was denied because the party seeking the
order failed to show a serious and specific risk to the integrity of a criminal
investigation, but editing of the materials was permitted to protect the
identity of a confidential informant (Toronto Star Newspapers Ltd. v.
Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188);
(d) A request for a publication ban prohibiting a newspaper from
reporting on settlement negotiations between the federal government and a
company with respect to the recovery of public funds in connection with the
federal “Sponsorship Program” was denied on the basis that the settlement
negotiations were already a matter of public record and a publication ban would
stifle the media’s exercise of their constitutionally-mandated role to report
stories of public interest (Globe and Mail v. Canada (Attorney General),
2010 SCC 41, [2010] 2 S.C.R. 592); and
(e) A teenage girl, who was seeking an order to compel disclosure by an
internet service provider of information relating to cyber-bullying, was
granted permission to proceed anonymously, but a publication ban on those parts
of the internet materials that did not identify the girl was denied (A.B. v.
Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567).
[35]
In determining whether or not it was appropriate
to limit the application of the open court principle in each of these matters,
the courts adopted the approach taken by the Supreme Court in Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12 and Mentuck
(the so-called Dagenais/Mentuck test). This test was described in Toronto
Star Newspapers, at paragraph 4, as follows:
Competing claims
related to court proceedings necessarily involve an exercise in judicial
discretion. It is now well established that court proceedings are presumptively
“open” in Canada. Public access will be barred only when the appropriate court,
in the exercise of its discretion, concludes that disclosure would subvert
the ends of justice or unduly impair its proper administration.
Stated another way, the test is whether the
salutary effects of the requested limitation of the open court principle will
outweigh the deleterious effects of that limitation.
[36]
Another important consideration is whether the
open court principle applies only to courts or whether it also applies to
quasi-judicial tribunals.
The Agency and
the Open Court Principle
[37]
In this application, all parties are agreed that
the open court principle applies to the Agency when it undertakes dispute
resolution proceedings in its capacity as a quasi-judicial tribunal. Support
for this proposition can be found in R. v. Canadian Broadcasting Corporation,
2010 ONCA 726, 327 D.L.R. (4th) 470, at paragraph 22, where Sharpe J.A. stated:
[22] The open court principle, permitting
public access to information about the courts, is deeply rooted in the Canadian
system of justice. The strong public policy in favour of openness and of
“maximum accountability and accessibility” in respect of judicial or
quasi-judicial acts pre-dates the Charter: Nova Scotia (Attorney
General) v. MacIntyre, [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at p. 184
S.C.R. As Dickson J. stated, at pp. 186-87 S.C.R.: At every stage the rule
should be one of public accessibility and concomitant judicial accountability”
and “curtailment of public accessibility can only be justified where there is
present the need to protect social values of superordinate importance”.
[Emphasis added]
However, the Agency asserts that it is
nonetheless obliged to first apply section 8 of the Privacy Act before
it can give effect to the open court principle. This assertion necessitates a
consideration of both the Privacy Act and the particular circumstances
of the Agency.
The Privacy
Act
[38]
Section 2 of the Privacy Act contains
Parliament’s stipulation as to its purpose. That provision reads as follows:
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Purpose
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Object
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2. The purpose of this Act is to extend the present 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.
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2. La présente loi a pour objet de compléter la législation
canadienne en matière de protection des renseignements personnels relevant
des institutions fédérales et de droit d’accès des individus aux
renseignements personnels qui les concernent.
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[39]
The Supreme Court of Canada has elaborated upon the
objectives of the Privacy Act. In Lavigne v. Canada, 2002 SCC 53,
[2002] 2 S.C.R. 773 at paragraph 24, Justice Gonthier stated,
[24] The Privacy Act is also
fundamental in the Canadian legal system. It has two major objectives. Its aims
are, first, to protect personal information held by Government Institutions,
and second, to provide individuals with a right of access to personal information
about themselves…
Several paragraphs later, Justice Gonthier
further stated:
[27] To achieve the objectives of the Privacy
Act, Parliament has created a detailed scheme for collecting, using and
disclosing personal information. First, the Act specifies the circumstances in
which personal information may be collected by a government institution, and
what use the institution may make of it: only personal information that
relates directly to an operating program or activity of the government institution
that collects it may be collected (s.4), and it may be used for the purpose for
which it was obtained or compiled by the institution or for a use consistent
with that purpose, and for a purpose for which the information may be disclosed
to the institution under s. 8(2) (s.7). As a rule, personal information may
never be disclosed to third parties except with the consent of the individual
to whom it relates (s.8(1)) and subject to the exceptions set out in the Act
(s.8(2)).
[40]
These passages from Lavigne indicate the
importance of the protection of privacy in relation to Personal Information
collected and held by our government and its emanations. However, they also
point to a number of specific instances in which such Personal Information can
be used and disclosed.
[41]
The Privacy Act applies to Government
Institutions. Section 4 of the Privacy Act prohibits the collection of Personal
Information about individuals unless it relates directly to an operating
program or activity of the institution.
[42]
Once Personal Information has been collected and
becomes subject to the control of a Government Institution, paragraph 7(a)
of the Privacy Act limits its use to the purpose for which it was
obtained or compiled, or to a use consistent with that purpose. Paragraph 7(b)
of the Privacy Act permits such information to be used for a purpose for
which it may be disclosed under subsection 8(2) of the Privacy Act.
[43]
Section 7 of the Privacy Act reads as
follows:
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7. Personal information under the
control of a government institution shall not, without the consent of the
individual to whom it relates, be used by the institution except:
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7. À
défaut du consentement de l’individu concerné, les renseignements personnels
relevant d’une institution fédérale ne peuvent servir à celle-ci:
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(a) for
the purpose for which the information was obtained or compiled by the
institution or for a use consistent with that purpose; or
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a) qu’aux fins
auxquelles ils ont été recueillis ou préparés par l’institution de même que
pour les usages qui sont compatibles avec ces fins;
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(b) for a
purpose for which the information may be disclosed to the institution under
subsection 8(2).
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b) qu’aux fins
auxquelles ils peuvent lui être communiqués en vertu du paragraphe 8(2).
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[44]
Subsection 8(1) of the Privacy Act
prohibits disclosure of Personal Information under the control of a Government
Institution without the consent of the individual, subject to certain
exceptions contained in subsection 8(2) of the Privacy Act. Subsection
8(1) reads as follows:
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8. (1) Personal
information under the control of a government institution shall not, without
the consent of the individual to whom it relates, be disclosed by the
institution except in accordance with this section.
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8. (1) Les renseignements
personnels qui relèvent d’une institution fédérale ne peuvent être
communiqués, à défaut du consentement de l’individu qu’ils concernent, que
conformément au présent article.
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[45]
Of particular relevance to this appeal are the
exceptions to paragraph 8(1) of the Privacy Act contained in paragraphs
8(2)(a) and (b) and sub-paragraph (m)(i) of the Privacy
Act, which read as follows:
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8. (2) Subject to any other Act of Parliament, personal
information under the control of a government institution may be disclosed
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8. (2) Sous réserve d’autres lois fédérales, la communication des
renseignements personnels qui relèvent d’une institution fédérale est
autorisée dans les cas suivants :
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(a) for the purpose for which the information was obtained
or compiled by the institution or for a use consistent with that purpose;
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a)
communication aux fins auxquelles ils ont été recueillis ou préparés par
l’institution ou pour les usages qui sont compatibles avec ces fins;
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(b) for any purpose in accordance with any Act of
Parliament or any regulation made thereunder that authorizes its disclosure;
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b)
communication aux fins qui sont conformes avec les lois fédérales ou ceux de
leurs règlements qui autorisent cette communication;
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…
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...
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(m) for any purpose where, in the opinion of the head of
the institution,
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m)
communication à toute autre fin dans les cas où, de l’avis du responsable de
l’institution :
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(i) the public interest in disclosure clearly outweighs any
invasion of privacy that could result from the disclosure,
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(i) des raisons d’intérêt public justifieraient nettement une
éventuelle violation de la vie privée,
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[46]
A further exemption with respect to the use and
disclosure of Personal Information is found in subsection 69(2) of the Privacy
Act, which reads as follows:
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69. (2) Sections
7 and 8 do not apply to personal information that is publicly available.
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69. (2) Les
articles 7 et 8 ne s’appliquent pas aux renseignements personnels auxquels le
public a accès.
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The Privacy Act contains no definition
of Publicly Available.
The Agency
[47]
There is no doubt that the Agency falls within
the definition of Government Institution. As such, the Agency is bound by the
provisions of that legislation. However, this case raises interesting questions
as to how the Agency’s adjudicative function – one part of its broad legislative
mandate – is affected by the scope and application of the Privacy Act.
[48]
A helpful description of the Agency and its
functions can be found in Lukács v. Canadian Transportation Agency, 2014
FCA 76, 456 N.R. 186, wherein, at paragraphs 50 to 53, Justice Dawson of this Court
stated:
[50] the Agency has a broad mandate in
respect of all transportation matters under the legislative authority of
Parliament. The Agency performs two key functions.
[51] First, in its role as a
quasi-judicial tribunal, it resolves commercial and consumer
transportation-related disputes. Its mandate was increased to include resolving
accessibility issues for persons with disabilities.
[52] Second, the Agency functions as an
economic regulator, making determinations and issuing licenses and permits to
carriers which function within the ambit of Parliament’s authority. In both
roles the Agency may be called to deal with matters of significant complexity.
[49]
This description highlights the duality of the
Agency’s functions. It acts in an administrative capacity, when carrying out
its economic regulatory mandate, and in a quasi-judicial, or court-like
capacity, when carrying out its adjudicative dispute resolution mandate. In
this latter capacity, the Agency exercises many of the powers, rights and
privileges of superior courts (see sections 25 to 35 of the CTA).
The Agency’s
Rules
[50]
Section 17 of the CTA empowers the Agency to
make rules governing the manner of and procedures for dealing with matters and
business that come before it. At the time that Dr. Lukács brought this
application, the Old Rules were in force. They have been superseded by the Canadian
Transportation Agency Rules (Dispute Proceedings at Certain Rules Applicable to
All Proceedings), SOR/2014-104 (the “New Rules”).
[51]
While both sets of Rules relate to proceedings
before the Agency, the New Rules are more comprehensive and, in general, apply
only to the Agency’s dispute resolution proceedings. In an annotated version of
the New Rules (the “Annotation”) (See: Canadian Transportation Agency, Annotated
Dispute Adjudication Rules (21 August 2014), online: Canadian
Transportation Agency <https://www.otc-cta.gc.ca/eng/publication/annotated-dispute-adjudication-rules>
), the Agency provides the following description of its adjudicative and
non-adjudicative functions:
The Agency performs two key functions within
the federal transportation system:
• Informally and through formal
adjudication (where the Agency reviews an application and makes a decision),
the Agency resolves a range of commercial and consumer transportation-related
disputes, including accessibility issues for persons with disabilities. It
operates like a court when adjudicating disputes.
• As an economic regulator, the Agency makes decisions and issues
authorities, licences and permits to transportation service providers under
federal jurisdiction.
[Emphasis added]
[52]
Both the Old Rules and the New Rules contemplate
the commencement of dispute resolution proceedings by the filing of complaint
documentation. The New Rules specifically provide that the proceedings do not
commence until the application documentation has been accepted by the Agency.
[53]
Both sets of Rules require that documents filed
with the Agency in respect of dispute resolution proceedings must be placed by it
on its Public Record. Subsection 23(1) of the Old Rules reads as follows:
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Claim for confidentiality
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Demande de traitement confidentiel
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23. (1) The Agency shall place on its
public record any document filed with it in respect of any proceeding unless
the person filing the document makes a claim for its confidentiality in
accordance with this section.
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23. (1) L'Office verse dans ses archives
publiques les documents concernant une instance qui sont déposés auprès de
lui, à moins que la personne qui les dépose ne présente une demande de
traitement confidentiel conformément au présent article.
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Subsection 7 of the New Rules reads as
follows:
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Filing
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Dépôt
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7. (1) Any document filed under these Rules must be filed with the
Secretary of the Agency.
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7. (1) Le dépôt de documents au titre des présentes règles se fait
auprès du secrétaire de l’Office.
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Agency’s
public record
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Archives publiques de l’Office
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(2) All filed
documents are placed on the Agency’s public record unless the person filing
the document files, at the same time, a request for confidentiality under
section 31 in respect of the document.
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(2) Les documents
déposés sont versés aux archives publiques de l’Office, sauf si la personne
qui dépose le document dépose au même moment une requête de confidentialité,
en vertu de l’article 31, à l’égard du document.
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Both sets of Rules ‒ subsections 23(3)
to (9) of the Old Rules and section 31 of the New Rules ‒ empower the
Agency to grant confidentiality protection in respect of documents that are
filed by parties to the proceedings.
[54]
The Agency’s perspective with respect to the
privacy implications of filings made under subsection 7(2) of the New Rules is
set forth in the Annotation as follows:
The Agency’s
record
The Agency’s
record is made up of all the documents and information gathered during the
dispute proceeding that have been accepted by the Agency. This record will be
considered by the Agency when making its decision.
The Agency’s record
can consist of two parts: the public record and the confidential record.
Public Record
Generally, all
documents filed with and accepted by the Agency during the dispute proceeding,
including the names of parties and witnesses, form part of the public record.
Parties
filing documents with the Agency should not assume that a document that they
believe is confidential will be kept confidential by the Agency. A request to have a document kept confidential may be made
pursuant to section 31 of the Dispute Adjudication Rules.
Documents on the
public record will be:
• Provided
to the other parties involved;
• Considered
by the Agency in making its decision; and
• Made
available to members of the public, upon request, with limited exceptions.
Decisions and
applications are posted on the Agency’s website and include the names of the
parties involved, as well as witnesses. Medical conditions which relate to an
issue raised in the application will also be disclosed. The decision will also
be distributed by e-mail to anyone who has subscribed through the Agency’s
website to receive Agency decisions.
Confidential
record
the confidential
record contains all the documents from the dispute proceeding that the Agency
has determined to be confidential.
If there are
no confidential documents, then there is only a public record.
No person can refuse
to file a document with the Agency or provide it to a party because they believe
that it is confidential. If a person is of the view that a document is
confidential, they must file it with the Agency along with a request for
confidentiality under section 31 of the Dispute Adjudication Rules. This will
trigger a process where the Agency will determine whether the document is
confidential. During this process, the document is not placed on the public
record.
Decisions that
contain confidential information that is essential to understanding the
Agency’s reasons will be treated as confidential as well and will not be placed
on the Agency’s website. However, a public version of the decision will be
issued and placed on the website.
[Emphasis added]
[55]
There is no definition of Public Record in
either the Old Rules or the New Rules.
The Factual
Context in this Application
[56]
It is undisputed that the documents that were
requested by Dr. Lukács were placed by the Agency on its Public Record in the
Cancun Matter and that the Agency made no confidentiality order in respect of
any of those documents
[57]
It is equally clear that certain portions of the
documents that were provided by the Agency to Dr. Lukács were redacted.
Moreover, those redactions were made by an employee of the Agency, not by a
member of the Agency carrying out a quasi-judicial function.
B.
The Refusal Issue
The Standard
of Review
[58]
The issue is whether the Agency, acting through
its Chairperson, erred in concluding that subsection 8(1) of the Privacy Act
required it to redact Personal Information contained in the documents on its Public
Record in the Cancun Matter, before disclosing those documents to Dr. Lukács in
response to his request.
[59]
In accordance with this Court’s decision in Nault
v. Canada (Public Works and Government Services), 2011 FCA 263, 425 N.R.
160 at paragraph 19, citing Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1
S.C.R. 66 at paragraphs 14 to 19, the standard of review applicable to the
decision of the head of a Government Institution to refuse to disclose
documents containing Personal Information is correctness. Nault also
stipulates that the interpretation of provisions of the Privacy Act that
are relevant to the refusal to disclose is also to be reviewed on the standard
of correctness.
The Positions
of the Parties
[60]
The determination of the correctness of the
Refusal requires the interpretation of a number of provisions of the Privacy
Act.
[61]
By virtue of subsection 69(2) of the Privacy
Act, it is clear that the prohibition on disclosure of Personal Information
in subsection 8(1) of the Privacy Act is inapplicable in respect of Personal
Information that is Publicly Available.
[62]
Thus, if the documents placed by the Agency on
its Public Record in the Cancun Matter are Publicly Available, then the
redactions made to them on behalf of the Agency were impermissible and, without
more, the application for judicial review must be allowed.
Dr. Lukács’ Submission – “Publicly Available”
[63]
Dr. Lukács argues that he is entitled to receive
the Unredacted Documents because they were placed on the Agency’s Public Record
and, accordingly, any Personal Information that might be contained in them is Publicly
Available. As such, he asserts that the prohibition in subsection 8(1) of the Privacy
Act is inapplicable.
The Agency’s Position – “Publicly Available”
[64]
Counsel for the Agency asserts that Personal
Information of each party to an adjudicative proceeding before the Agency is
put into a personal information bank (a “Personal Information Bank”), as
contemplated by section 10 of the Privacy Act, and therefore is not
information that is Publicly Available. Further, counsel for the Agency asserts
that this Court should reject the argument that, in absence of a
confidentiality order, the Agency is required to disclose documents on its Public
Record in an unredacted form. Finally, counsel for the Agency asserted that, if
Parliament had intended that the right to disclosure of documents pursuant to
the open court principle was to override subsection 8(1) of the Privacy Act,
that legislation would have contained a specific provision to that effect.
The Attorney General of Canada’s Position – “Publicly
Available”
[65]
The Attorney General of Canada took no position
with respect to the interpretation and application of subsection 69(2) of the Privacy
Act in this appeal.
The Privacy Commissioner’s
Position – “Publicly Available”
[66]
Counsel for the Privacy Commissioner asserts
that Personal Information cannot be Publicly Available unless it is obtainable
from another source or available in the public domain for ongoing use by the
public when Dr. Lukács made his request. In addition, the Privacy Commissioner
asserts that information on the Agency’s Public Record cannot be Publicly
Available simply because the Agency is subject to the open court principle.
Discussion
[67]
To decide this issue, it is necessary to
interpret the terms Publicly Available and Public
Record. Unfortunately, the parties were unable to provide the Court with
any determinative authorities in this regard.
The interpretative
approach
[68]
In Canada Trustco Mortgage Co. v. Canada,
[2005] 2 S.C.R. 601, 2005 SCC 54, the Supreme Court provided the following
interpretative guidance at paragraph 10:
10 It has been long established as a
matter of statutory interpretation that "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": see 65302 British Columbia Ltd. v. Canada,
[1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory
provision must be made according to a textual, contextual and purposive
analysis to find a meaning that is harmonious with the Act as a whole. When
the words of a provision are precise and unequivocal, the ordinary meaning of
the words play a dominant role in the interpretive process. On the other hand,
where the words can support more than one reasonable meaning, the ordinary
meaning of the words plays a lesser role. The relative effects of ordinary
meaning, context and purpose on the interpretive process may vary, but in all
cases the court must seek to read the provisions of an Act as a harmonious
whole.
[Emphasis added]
“Publicly
Available”
[69]
The term Publicly Available appears to me to be
relatively precise and unequivocal. I interpret these words as meaning
available to or accessible by the citizenry at large. This interpretation is
also consistent with the apparent context and purpose of subsection 69(2) of
the Privacy Act. That provision is located in a portion of the Privacy
Act, entitled “Exclusions”, that sets out
circumstances in which the Privacy Act, or sections thereof, do not apply.
The purpose of subsection 69(2) of the Privacy Act is to render the use
and disclosure limitations that are contained in sections 7 and 8 of the Privacy
Act inapplicable to Personal Information if and to the extent that the
citizenry at large otherwise has the ability to access such information.
“Public Record”
[70]
In my view, the meaning of Public Record is not
precise and unequivocal. Instead, the context in which this term appears is
critical to the discernment of its meaning. The term appears in subsection
23(1) of the Old Rules.
[71]
In the judicial context, the record consists of
a documentary memorialization of the proceedings that have come before the court.
The documents on the record constitute the foundation upon which the court
grounds its ultimate decision. The purpose of the record is to facilitate
scrutiny of the court’s decision, whether for the specific purpose of appellate
review or the more general purpose of judicial transparency. Thus, when a court
places documents on its record, it adheres to the open court principle.
[72]
However, as has been noted earlier in these
reasons, there are circumstances in which unfettered access to the record before
the court runs counter to competing societal interests. In those circumstances,
the affected party may apply to the court for relief, either under the
procedural rules of that court or on the basis of the Dagenais/Mentuck
test in respect of Charter-based applications. In appropriate
circumstances, the court will circumscribe the scope and application of the
open court principle. When it does so, the court will have determined that, in
the circumstances, safeguarding the integrity of the administration of justice and
protecting the often vulnerable party who seeks that protection, outweigh the
benefits of open access that the open court principle would otherwise provide. Thus,
the open court principle mandates that the record of the court will be
available for public access and scrutiny, except to the extent that the Court otherwise
determines.
[73]
In my view, there is no principled reason to
employ a more limited interpretation of the term record simply because that term
relates to a quasi-judicial adjudicative tribunal, such as the Agency, rather
than a court. The record of the proceedings before the Agency performs
essentially the same function as the record of a court.
[74]
In interpreting the term record, in subsection
23(1) of the Old Rules, I adopt the meaning referred to above, namely a
documentary memorialization of the proceedings that have come before the
Agency. The additional word “public” provides a useful contrast to the
situation in which materials on the record have been determined by the Agency
to be confidential. In other words, as noted in the excerpt from the Annotation
referred to in paragraph 54 of these reasons, the Agency’s Public Record can be
viewed as a record that contains no confidential documents.
[75]
The Annotation provides an illustration of the
Agency’s perspective with respect to requests for confidentiality
The Agency is a quasi-judicial tribunal that
follows the “open court principle.” This principle guarantees the public’s
right to know how justice is administered and to have access to decisions
rendered by courts and tribunals, except in exceptional cases. That is, the
other parties in a dispute proceeding have a fundamental right to know the case
being made against them and the documents that the decision-maker will review
when making its decision which must be balanced against any specific direct
harm the person filing the documents alleges will occur if it is disclosed. This
means that, upon request, and with limited exceptions, all information filed in
a dispute proceeding can be viewed by the public.
In general, all documents filed with or
gathered by the Agency in a dispute proceeding, including the names of the
parties and witnesses, form part of the public record. Parties filing documents
with the Agency must also provide the documents to the other parties involved
in the dispute proceeding under section 8 of the Dispute Adjudication Rules.
[Emphasis added]
Is the Agency’s
public record publicly available?
[76]
The Privacy Commissioner asserts that to be Publicly
Available, the documents requested by Dr. Lukács must have been freely
obtainable from a source other than the Agency. However, the Privacy
Commissioner offers no jurisprudential authority for this proposition, and I
reject it.
[77]
This assertion ignores the bifurcated nature of
the Agency’s mandate. As noted above, the Agency functions as an economic
regulator and as a quasi-judicial dispute resolution tribunal.
[78]
The documents initiating a dispute may well be
required to be kept in Personal Information Banks, immediately after their
receipt by the Agency. However, compliance by the Agency with its obligation in
subsection 23(1) of the Old Rules means that those documents have left the
cloistered confines of such banks and moved out into the sunlit Public Record
of the Agency. In my view, the act of placing documents on the Public Record is
an act of disclosure on the part of the Agency. Thus, documents placed on the
Agency’s Public Record are no longer “held” or “under the control” of the Agency acting as a Government
Institution. From the time of their placement on the Public Record, such
documents are held by the Agency acting as a quasi-judicial, or court-like
body, and from that time they become subject to the full application of open
court principle. It follows, in my view, that, once on the Public Record, such
documents necessarily become Publicly Available.
[79]
In this regard, two comments are apposite.
First, in placing documents on its Public Record, the Agency is acting properly
and within the law. Such disclosure by the Agency is necessary for it to fulfill
its dispute resolution mandate, and in particular to comply with the requirements
of subsection 23(1) of the Old Rules or subsection 7(2) of the New Rules.
Secondly, either subsections 23(3) to (9) of the Old Rules or section 31 of the
New Rules will permit the parties to the proceedings to request a
confidentiality order from the Agency. These confidentiality provisions enable
the Agency to protect the privacy interests of participants in dispute
resolution proceedings before it. They do so in substantially the same way that
such interests are protected in judicial proceedings, while preserving the
presumptively open access to the Agency’s proceeding in accordance with the
open court principle. To underscore this point, it was open to the parties in
the Cancun Matter to request a confidentiality order in relation to any Personal
Information filed in that matter, but no such request was made.
[80]
In conclusion, it is my view that once the
Agency placed the documents in the Cancun Matter on its Public Record, as
required by subsection 23(1) of the Old Rules, those documents became Publicly
Available. As such, the limitation on their disclosure, contained in
subsection 8(1) of the Privacy Act, was no longer applicable by virtue
of subsection 69(2) of the Privacy Act. Accordingly, Dr. Lukács was
entitled to receive the documents that he requested and the Agency’s refusal to
provide them to him was impermissible.
C.
The Constitutional
Issue
[81]
The resolution of the Refusal Issue makes it
unnecessary for me to consider the Constitutional Issue.
V.
DISPOSITION
[82]
For the foregoing reasons, I would allow the
application for judicial review and direct the Agency to provide the Unredacted
Documents to Dr. Lukács. In view of the complexities of the issues that were
raised in this application and the considerable time that was spent by Dr. Lukács
I would award Dr. Lukács a moderate allowance in the amount of $750.00 plus reasonable
disbursements, such amounts to be payable by the Agency.
“C. Michael Ryer”
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“I agree
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D.G. Near, J.A.”
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“I agree
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Richard Boivin, J.A.”
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