Date: 20060711
Docket: T-1448-05
Citation: 2006 FC 863
Ottawa, Ontario, July 11, 2006
Present:
Madam Justice Tremblay-Lamer
BETWEEN:
SAMIR
ELOMARI
Applicant
and
PRESIDENT OF THE
CANADIAN SPACE AGENCY
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application under section 41 of
the Privacy Act, R.S.C. 1985, c. P-21 (the Act) concerning the
decision of the President of the Canadian Space Agency (CSA) to refuse to
disclose certain personal information requested by the applicant under sections 3,
12, 21, 26 and 27 of the Act.
FACTS
[2]
On May 24, 2001, the applicant sent the CSA a
request under the Act for access to some personal information.
[3]
On June 5, 2001, the respondent wrote to the
applicant advising him that it would be necessary to extend the time limit for
processing the request by 11 months because of the various persons
concerned and the complexity of the request.
[4]
On July 30, 2001, the respondent was advised
that the Office of the Privacy Commissioner (the Office) had received a complaint
from the applicant (the first complaint), who was of the opinion that the
extension of the time limit requested by the CSA was excessive and did not
comply with the time limits specified under the Act.
[5]
Following the intervention of the Privacy Commissioner
(the Commissioner), the respondent accelerated the processing of the
application, which eventually lead to documents being sent on six different
occasions.
[6]
On May 8, 2002, the Commissioner advised the
respondent that the answers given up to that date only partially answered the
request; for this reason, the Commissioner requested the personal intervention
of the President of the CSA to ensure that the CSA would answer all the points
mentioned in the request as soon as possible.
[7]
On June 20 and August 27, 2002, two other
partial answers were sent to the applicant. The CSA refused to disclose some
other information, invoking sections 12, 21, 26 and 27 of the Act.
[8]
On August 30, 2002, the applicant filed another
complaint under the Act with the Commissioner (the second complaint), on the
grounds that the respondent did not disclose all the information requested
under the Act and to which he was entitled.
[9]
Following the Commissioner’s investigation and
an exchange of letters and after several meetings between the respondent and
the Office, the respondent decided to disclose some additional information,
which was sent to the applicant on April 8, 2005. The respondent also
advised the applicant that the rest of the information contained in the expurgated
passages of the documents sent to him and/or in the other pages which had not
been forwarded to him could not be disclosed, because of sections 12, 21,
26 and 27 of the Act.
[10]
In a letter dated July 5, 2005, the Office
concluded that the denial of access to the documents under the Act was well
founded.
[11]
On August 22, 2005, the applicant filed notice
of an application for judicial review of the respondent’s decision to deny
access to certain information.
[12]
Because the applicant is no longer contesting the
section 21 exception, the only issue to be dealt with in this case is
whether the respondent’s decision to refuse to disclose to the applicant the
information in question under sections 12, 26 and 27 of the Act is well
founded.
LITIGATION IN THE SUPERIOR COURT OF
QUEBEC
[13]
On June 11, 1998, the applicant sued the CSA for
damages before the Superior Court of Quebec, alleging inter alia illegal
appropriation of his invention by the CSA.
[14]
On October 13, 2004, Justice Danielle Grenier
allowed the applicant’s action against the CSA.
[15]
In connection with the request for access
submitted to the CSA under the Act, Justice Grenier concluded the following at
paragraph 122:
[translation]
. . .
[T]he Agency hid or kept for itself information that was vital for Élomari,
until he decided to appeal to the Commissioner in charge of applying the Privacy
Act.
[16]
The applicant submitted it was obvious from the
decision rendered by Grenier J. that certain documents which CSA refused
to disclose were forged or revealed illicit acts committed by the CSA or any
other person against the applicant. It would be contrary to public order if the
CSA or any other person having acted illegally against the applicant were to be
able to benefit from exemptions under the Act.
[17]
With regard to section 27, the applicant
submitted that the respondent could not invoke solicitor‑client privilege
to justify the refusal to disclose documents to him, because the Supreme Court
of Canada has clearly stated that any communications made for the purpose of
facilitating the commission of a crime or a fraud are not protected by this
privilege, Descôteaux et al v. Mierzwinski, [1982]
1 S.C.R. 860 at page 879.
THE STANDARD OF REVIEW
[18]
In this case, the respondent decided that under
section 12 some of the information requested was not personal information
within the meaning of section 3 of the Act.
[19]
In Canada (Information Commissioner) v.
Canada (Commissioner of the Royal Canadian Mounted Police),
2003 SCC 8, [2003] 1 S.C.R. 66, the Supreme Court of Canada
concluded that the standard of review applicable to the determination of
personal information within the meaning of sections 3 and 12 of the Act is
that of correctness.
[20]
As far as documents exempted under
sections 26 and 27 of the Act are concerned, in Kelly v. Canada
(Solicitor General) (1992), 53 F.T.R. 147 (T.D.), aff’d (1993),
154 N.R. 319 (F.C.A.), this Court concluded that when a document is
included in a statutory exemption under the Act, the head of an institution
must make two decisions:
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It will be
seen that these exemptions require two decisions by the head of an
institution: first, a factual determination as to whether the material comes
within the description of material potentially subject to being withheld from
disclosure; and second, a discretionary decision as to whether that material
should nevertheless be disclosed.
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The first type of factual decision is one which, I believe, the court
can review and in respect of which it can substitute its own conclusion. This
is subject to the need, I believe, for a measure of deference to the
decisions of those whose institutional responsibilities put them in a better
position to judge the matter . . . .
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The second type of decision is purely discretionary. In my view in
reviewing such a decision the court should not itself attempt to exercise the
discretion de novo but should look at the document in question and the
surrounding circumstances and simply consider whether the discretion appears
to have been exercised in good faith and for some reason which is rationally
connected to the purpose for which the discretion was granted
. . . .
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[21]
In Thurlow v. Canada (Solicitor General),
2003 FC 1414, [2003] F.C.J. No. 1802 (QL), my colleague Justice John O’Keefe
reaffirmed the decision in Kelly, above, and concluded following a
detailed pragmatic and functional analysis that the decision of a federal
institution to the effect that a given document is included in a statutory
exception must be examined according to the standard of correctness. If this
decision is determined to be valid, the respondent’s discretionary decision
refusing the disclosure of a document must then be examined according to the
standard of reasonableness simpliciter.
ANALYSIS
1. Information exempted under
section 12 of the Act
[22]
Under
section 12 of the Act, every Canadian citizen has the right to receive, on
request, personal information which concerns him or her. Section 3 of the
Act defines what constitutes personal information within the meaning of the
Act. The relevant excerpts of the legislation are reproduced in Annex A.
[23]
The respondent is claiming the section 12
exemption on the ground that the information in question is not personal
information within the meaning of section 3 of the Act with respect to
some of the documents in the annex to the confidential affidavit of
Danielle Bourgie.
[24]
Having
reviewed in minute detail the relevant excerpts of the expurgated documents, I
am of the opinion there is no doubt that the respondent’s conclusion to the
effect that this information is not personal information within the meaning of
section 3 is well founded.
Section 26
2. Information exempted under
section 26 of the Act
[25]
Some documents were not disclosed to the
applicant because of the discretionary exemption under section 26 of the
Act.
[26]
In Mislan v. Canada (Minister of Revenue),
[1998] F.C.J. No. 704 (T.D.)(QL), Justice Marshall Rothstein
specified that when information concerns at the same time the person applying
for access and another person, the head of a federal institution may invoke his
or her discretion under section 26 of the Act to refuse to disclose all or
part of a document. He affirmed the following at paragraph 13:
Under section 26
the right of the person making the request under subsection 12(1) to
access his or her own personal information is subject to the requirement on, or
the exercise of discretion by, the head of the government institution not to
disclose information about another person. Specifically, when the information
in question is about both the person making the request and another person the
discretion to refuse disclosure by the head of the government institution is
paramount to the right of the person making the request for his own personal
information.
[27]
The decision in Keïta v. Canada (Minister of
Citizenship and Immigration), 2004 FC 626, [2004] F.C.J.
No. 782 (F.C.)(QL), is to the same effect.
[28]
Once again, after having checked each one of the
documents in question, it appears that they contain information concerning both
the applicant and another person. Having read the grounds stated in the
confidential affidavit of Ms. Bourgie, I conclude that the respondent used
its discretionary power under section 26 of the Act appropriately. There
is nothing that would lead the Court to conclude that the respondent acted in
bad faith. Accordingly, the Court’s intervention is not warranted.
Section 27
3. Information exempted under
section 27 of the Act
[29]
In Stevens v. Canada (Prime Minister),
[1998] 4 F.C. 89 (C.A.), in applying section 23 of the Access
to Information Act, R.S.C., 1985, c. A-1, the Federal Court of Appeal
confirmed that the applicable principles for determining whether a document is
covered by solicitor‑client privilege are those developed by the common
law. The same principles apply in the context of section 27 of the Privacy
Act (See: Gauthier v. Canada (Minister of Justice),
2004 FC 655, [2004] F.C.J. No. 794 (F.C.)(QL)).
[30]
Certain conditions are required to give rise to
solicitor‑client privilege: (i) it must involve a client seeking legal
advice; (ii) this advice must be intended to be confidential; (iii) the advice
must be sought from the lawyer in his or her capacity as such; (iv) this advice
must not be for illegal purposes; and (v) this privilege must not be waived: Canada
v. Solosky, [1980] 1 S.C.R. 821 at page 837; Descôteaux
et al v. Mierzwinski, above; R. v. Campbell, [1999]
1 S.C.R. 565 at paragraph 49.
[31]
Canadian courts have taken a wide and generous
approach to solicitor‑client privilege. When there is a continuum of
communications and meetings between a lawyer and his or her client for the
purpose of transmitting information to obtain legal advice, solicitor‑client
privilege may be invoked: Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762
(C.A.) at paragraph 8; Canadian Jewish Congress v. Canada (Minister of
Employment and Immigration), [1996] 1 F.C. 268 (T.D.) at
pages 293‑294.
[32]
In
addition, the solicitor‑client privilege extends to any document prepared
or obtained for the purposes of litigation.
[33]
In Blank v. Canada (Minister of Justice),
2004 FCA 287, [2005] 1 F.C.R. 403 (F.C.A.), the Federal
Court of Appeal explained the two distinct branches of solicitor‑client
privilege as follows, at paragraph 17:
The parties do
not dispute that, at common law, the solicitor-client privilege covers
confidential communications between solicitor and client which entails the
seeking or giving of legal advice, whether contentious or not, as well as,
pursuant to what the American courts call the “work product doctrine”, a
“lawyer's work product”, i.e. the material assembled by a lawyer exercising
legal knowledge, skill and industry for the purpose of advising on or
conducting anticipated or pending litigation: see Hodgkinson v. Simms
(1988), 33 B.C.L.R. (2d) 129 (C.A.), at page 142. Words to the same
effect can be found in Susan Hosiery Ltd. v. Minister of National
Revenue, [1969] 2 Ex. C.R. 27, at page 33, where
President Jackett of the Exchequer Court of Canada enunciated the following
principles followed in numerous subsequent decisions:
As it seems to
me, there are really two quite different principles usually referred to as
solicitor and client privilege, viz:
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(a)
all communications, verbal or written, of a confidential
character, between a client and a legal adviser directly related to the
seeking, formulating or giving of legal advice or legal assistance (including
the legal adviser’s working papers, directly related thereto) are privileged;
and
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(b)
all papers and materials created or obtained specially for
the lawyer’s “brief” for litigation, whether existing or contemplated, are
privileged. . . .
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[34]
In this judgement, the Court acknowledged that
the solicitor‑client privilege specified in section 23 of the Access
to Information Act includes privileged communications in connection with
litigation (paragraph 31). Because section 27 of the Privacy Act
is similar, the same principles apply.
[35]
With
regard to documents containing communications that did not take place between
solicitor and client, but rather between public servants of the client
department, the Court specified that where communications contain a description
or discussion of legal advice sought or to be sought or of legal advice
obtained, such communications are also privileged: Blank v. Canada (Minister
of Environment), 2001 FCA 374, [2001] F.C.J. No. 1844
(C.A.)(QL).
[36]
In the case at bar, the respondent made the
decision to exempt a certain number of documents because of the two branches of
the solicitor‑client privilege, that is, the legal advice privilege and the
litigation privilege.
[37]
Having
studied the documents in question in detail, I am satisfied that they are
covered by the exemption specified in section 27, except for
paragraph 44 of Exhibit A‑4, which is not privileged and which,
according to the admission of counsel for the respondent, had not been
disclosed by mistake. Therefore, this information must be disclosed.
[38]
I am of
the view that the explanations given by Ms. Bourgie in her confidential
affidavit concerning her discretion not to disclose the documents are
satisfactory. There is not one iota of evidence to the effect that she
exercised her discretionary authority incorrectly. Therefore, I uphold the
respondent’s decision to refuse to disclose these documents.
[39]
Finally, I would like to add this. The applicant
is unfortunately convinced that there are forged documents with the
confidential ones and that consequently they cannot be protected because they
were fabricated for the purposes of committing a criminal offence.
[40]
Although I understand the applicant’s
frustration in not having access to confidential documents, I repeat that after
having read each one of the documents in detail, it is impossible for me to
conclude that this is the case. The decision of the CSA not to disclose them is
well founded, and I did not find any evidence to the effect that the respondent
acted in bad faith in exempting these communications.
[41]
For these reasons, this application is
dismissed, except with regard to paragraph 44 of Exhibit A‑4,
which must be disclosed to the applicant.
JUDGMENT
The application for judicial review is dismissed, except
with regard to paragraph 44 of Exhibit A‑4, which must be
disclosed to the applicant.
“Danièle
Tremblay-Lamer”
Certified
true translation
Michael
Palles
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