Lavigne v. Canada (Commissioner of Official Languages), docket T-909-97

Date: 19981016

Docket: T-909-97

BETWEEN:

     ROBERT LAVIGNE

     Applicant

     - and -

     THE OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES

     Respondent

     - and -

     THE PRIVACY COMMISSIONER OF CANADA

     Intervenor

     REASONS FOR ORDER

DUBÉ J:

[1]      This application is for the judicial review of the Commissioner of Official Languages" refusal to disclose certain interview notes from his investigation files requested by the applicant under the Privacy Act¹.

1. Facts

[2]      The applicant alleges that he was forced to use the French language at work when he was employed in the Montréal office of the Department of Health and Welfare (now the Department of Human Resources Development Canada ("HRDC")). Between November 1992 and March 1993, he filed four complaints to the Office of the Commissioner of Official Languages ("OCOL"), the respondent, which led to investigation by OCOL.

[3]      In the course of the investigation, OCOL conducted a number of interviews including interviews with individuals who worked with the applicant at HRDC on a daily basis. The applicant claims that after these interviews the workplace atmosphere deteriorated.

[4]      OCOL issued its report on August 23, 1994, which concluded that the applicant"s four complaints were well founded and submitted to HRDC five recommendations from the Commissioner of Official Languages. HRDC agreed to implement the recommendations.

[5]      Following OCOL"s report, the applicant applied to this Court for a remedy against HRDC in accordance with the provisions of Part X of the Official Languages Act². The Court's hearing focussed on the nature of the remedy for the violation of the applicant's language rights.

[6]      On October 30, 1996, Mr. Justice Pinard ordered HRDC to pay the applicant $3,000.00 in damages and ordered HRDC to write a letter of apology to the applicant. The latter appealed to the Federal Court of Appeal with reference to the quantum of damages awarded. The appeal has not yet been heard.

[7]      In the course of the review before Mr. Justice Pinard (T-1977-94), HRDC filed a number of affidavits, including those of Mrs. Doyon (regional co-ordinator of official languages), Mr. Chartrand (district manager, Montréal office) and Mrs. Dubé (unit chief -applicant"s immediate supervisor). The applicant launched the present application to obtain the information contained in the notes taken by OCOL's investigators in the course of these interviews.

[8]      The applicant was given parts of the interviews in question and is now attempting to obtain the remainder of the requested material. OCOL is still reluctant to release the balance of the answers provided by Mr. Chartrand, Mrs. Doyon and Mrs. Dubé.

2. Decision of the Commissioner of Official Languages

[9]      In a letter dated April 25, 1997, the Commissioner of Official Languages reviewed the situation and informed the applicant of the grounds for his decision to withhold the information requested by him. The following two paragraphs express his views in the matter:

The information which continues to be withheld from access is not personal information under section 3 of the Privacy Act, or it is information which is subject to exemption under sections 22(1)(b), 25, 26 or 27 of the Act. Sections 22(1)(b) and 25 apply specifically to the statements made by those individuals who were interviewed during the course of OCOL's investigation and whose consent could not be obtained, either because they could not be located, or did not wish to waive their right to confidentiality.

I have had the opportunity to review the results of OCOL's efforts to resolve your complaint to me and to consider the arguments made by OCOL officials to defend the application of the various exempting provisions to continue to deny you access to personal information, and I am satisfied that you now have all that you are entitled to receive. I have concluded that you were denied access to personal information when you first requested access. Your complaint to me is therefore well-founded. However, given OCOL's willingness to release additional information to you, I now consider the matter resolved.

3. Issues raised by the applicant are as follows:

1. Is the information requested by the applicant "personal information" as defined by the Privacy Act?

2. Was the relevant "non personal information" (included in the information requested by the applicant) which was not disclosed to the applicant properly severed in accordance with the Privacy Act?

3. Was the "personal information" requested by the applicant and not disclosed to him by the respondent properly exempted under paragraph 22(1)(b) of the Privacy Act or any other applicable exemptions?

4. What impact do sections 60, 72, 73 and 74 of the Official Languages Act have upon the applicant's request for information?

4. Applicant's submissions

[10]      The applicant submits that he is entitled to the requested information because it is "personal information" under section 3 of the Privacy Act wherein "personal information" is defined as follows:

"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

...

(g) the views or opinions of another individual about the individual.

[11]      The applicant contends that the respondent admits that the information given by Mrs. Dubé during the interview is "personal information" under the above definition but will release only part of the information to him. He submits that for the respondent to qualify for an exemption under paragraph 22(1)(b) of the Privacy Act, it must prove that if the release of the information takes place, it will be injurious to the conduct of lawful investigations. The paragraph reads as follows:

22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)

...

(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

[12]      The applicant states that the interest of disclosure outweighs any possible injury to the respondent's investigations. In regard to the Official Languages Act, section 60 merely stipulates that every investigation by the Commissioner of Official Languages shall be conducted in private. Section 72 states that the latter and his officials shall not disclose any information that comes to their knowledge in the performance of their duties. Section 73 provides that the Commissioner of Official Languages may disclose information in the course of proceedings before the Federal Court of Canada under Part X or any appeal therefrom. The applicant claims that paragraphs 8(2)(a) and (b) of the Privacy Act provide that "personal information" may be disclosed for the purpose for which the information was obtained or for any purpose in accordance with any act of Parliament that authorizes its disclosure.

5. Respondent's submissions

[13]      On the other hand, OCOL submits that it did not release the information for three main reasons: first, the respondent has no obligation to disclose information which does not constitute "personal information". Second, the information not disclosed to the applicant was exempted under paragraph 22(1)(b) of the Privacy Act on the basis that disclosure would be injurious to the enforcement of the Official Languages Act. Third, the respondent is abiding by the provisions of the Official Languages Act dealing with the confidentiality of information obtained during an investigation, namely subsection 60(1) and sections 72, 73 and 74 of the Official Languages Act.

[14]      The respondent submits that the purpose of the Privacy Act is twofold: first, it is to protect the privacy of individuals with respect to "personal information" about themselves held by a government institution; and, second, to provide individuals with a right of access to that information. That right, however, is not absolute, but is subject to exemptions as provided in the Privacy Act.

[15]      Furthermore, the respondent contends that the confidentiality provisions of the Official Languages Act are in place to secure the cooperation of all witnesses, which cooperation is essential to the conduct of investigations. Because Mrs. Dubé refused to give the respondent OCOL permission to disclose the content of the notes taken during the interview, OCOL obliged accordingly. While the respondent does not need such permission, it feels that the disclosure may reasonably be expected to be injurious to the conduct of OCOL's investigations, as provided under paragraph 22(1)(b) of the Privacy Act. Moreover, the respondent alleges that due to the fact that assurances of confidentiality were extended to the individuals, if OCOL was now to disclose the content of the notes taken during these interviews, without the consent of these persons, it would be betraying a commitment made to those people.

[16]      Finally, the respondent indicates that the interview notes in question do not contain information relating to the main issue of the applicant's appeal to the Federal Court of Appeal, which is centered on the quantum of damages.

[17]      Thus, in responding to the applicant's request for information, OCOL submits that it has tried to balance obligations under the Privacy Act, the Official Languages Act and its duty to act fairly.

6. Intervenor's submissions

[18]      The Privacy Commissioner of Canada came out in support of the applicant. He limited his intervention to the issue of whether the "personal information" requested by the applicant is exempt from disclosure pursuant to paragraph 22(1)(b) of the Privacy Act. He takes the position that the paragraph does not apply to restrict the applicant's access to his "personal information". As mentioned earlier, that paragraph creates an exemption where the disclosure "could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations".

[19]      The intervenor argues that under section 3 of the Privacy Act "personal information" is "information about an identifiable individual that is recorded in any form" and includes (under subsection 3(g)) "views or opinions of another individual about the individual". Thus, the information about the applicant contained in the notes in question is the applicant's "personal information".

[20]      The Supreme Court of Canada has recently confirmed that the definition of "personal information" is deliberately broad and entirely consistent with the great pains that have been taken to safeguard individual identity³. One of the expressed purposes of the Privacy Act is to "extend the present laws of Canada ... that provide individuals with a right of access" to "personal information" about themselves. As such, and subject to the limited and specific exemptions set out in the Privacy Act, individuals have "a right to and shall, on request, be given access" to their "personal information" under subsection 12(1) of the Privacy Act.

[21]      The intervenor alleges that exemptions to the right to access "personal information" under the Privacy Act must be interpreted strictly⁴. The onus of justifying the use of an exemption rests upon those who claim the exemption⁵. Access to "personal information" is the fundamental principle and exemptions ought to be claimed only in exceptional circumstances⁶.

[22]      While paragraph 22(1)(b) of the Privacy Act exempts the head of a government from the disclosure of "personal information" which could reasonably be expected to be injurious to the conduct of lawful investigations, this exemption may properly be invoked only where the institution can establish the existence of a "reasonable expectation of probable harm" from disclosure⁷. The institution refusing access on the basis of paragraph 22(1)(b) must "demonstrate any clear linkage between the requested disclosure and the alleged harm"⁸. The purpose of the exemption is to protect confidential sources. It is not meant to restrict disclosure of "personal information" contained in statements from witnesses who cannot reasonably be viewed as being "confidential" sources⁹. And the exemption applies only to the "conduct" of a lawful investigation. Therefore, once the investigation is over (as is the case here) the exemption no longer applies¹⁰.

[23]      The intervenor submits that OCOL has failed to satisfy its onus of demonstrating that the "personal information" requested by the applicant could reasonably be expected to cause probable harm to its investigations. In accordance with the affidavit of Gerald Neary, the Director of Investigation at the office of the Privacy Commissioner of Canada, "informing individuals at the outset of the process that their testimony is available to the person to whom it relates protects the integrity of the investigative process since the statements provided by one individual can be challenged by the individual to whom it relates. "In my experience, promises of confidentiality diminish truthfulness. For example, an individual who is promised confidentiality may be tempted to engage in exaggeration and innuendo, believing that these are protected from disclosure".

[24]      The views of Director of Investigation Neary are diametrically opposed to those of Gilbert Langelier, Assistant Director General of Investigations at OCOL who stated in his affidavit that he knows "from experience that the witnesses involved in OCOL investigations want to be reassured as to the extent of their involvement". Those witnesses are "generally hesitant to testify". He has observed "on numerous occasions that the witnesses are often reluctant to meet with OCOL investigators". He is of the opinion "that in order to secure the full cooperation of all witnesses essential to our investigation, the witnesses must have the assurance that their statements will be kept confidential, even after the investigation is completed". Thus, "assurances of confidentiality were given by the OCOL investigators to the employees concerned" in the instant case.

[25]      According to the intervenor, the public interest in ensuring fairness to all involved in an investigation far outweighs any prejudice that could result from the disclosure of witness statements¹¹. The intervenor quotes as follows my colleague Muldoon J. in Quackenbush v. Canada (Minister of Agriculture)¹² "Where a person's livelihood and career stand in the balance one ought not to be so tender about identifying his accusers that they are reduced to phantoms".

[26]      The Supreme Court of Canada has confirmed that "a high standard of justice is required when the right to continue in one's profession or employment is at stake"¹³. Therefore, the intervenor submits that public institutions ought not to be able to subvert the fundamental protections afforded by the Privacy Act by making blanket promises of confidentiality to witnesses in the course of their investigations. Assurances of confidentiality, where they are necessary, must be made subject to the Privacy Act.

[27]      While one witness involved, Mrs. Jacqueline Dubé, has refused permission to have her answers disclosed, there is no evidence that any witness, including her, refused at the outset to cooperate with OCOL investigators unless a confidentiality undertaking was provided. And, in any event, if any witnesses refuse to cooperate, the Commissioner of Official Languages has the power to compel them to give evidence under oath. The Commissioner of Official Languages' argument that the use of this power "would significantly limit the information OCOL can obtain" is patently unreasonable and inconsistent with our judicial system which is predicated on the ability to compel witnesses so as to ensure that all relevant and reliable information is obtained.

[28]      The applicant's motive for requesting access to his "personal information", that is to buttress his case for a more substantial quantum of damages, is irrelevant to the right of an individual to access one's "personal information" under the Privacy Act.

[29]      Subsection 60(2) of the Official Languages Act provides that the Commissioner of Official Languages shall, before completing his investigation, "take every reasonable measure to give to that individual or institution a full and ample opportunity to answer any adverse allegation or criticism, and to be assisted or represented by counsel for that purpose". The non-disclosure provision in section 72 of the Official Languages Act is specifically made subject to "this [Privacy] Act" including, of course, the above subsection 60(2) and section 73 of the Official Languages Act. Again, subsection 60(2) provides that the individual be given full and ample opportunity to answer any adverse allegation or criticism, and section 73 stipulates that the Commissioner of Official Languages may disclose information in the course of proceedings before the Federal Court of Canada under Part X or an appeal therefrom.

7. Disposition

[30]      It is not very often that Parliament provides a purposive clause to introduce new legislation. It has done so under section 2 of the Privacy Act which states in clear terms that "the purpose of this Act is to extend the present laws of Canada" both to "protect the privacy of individuals with respect to personal information about themselves" and to provide them "with a right of access to that information". It complements the Access to Information Act¹⁴ which also comes with of a purposive clause which extends the present laws of Canada to provide a right of access to governmental information with the principles that it should be available to the public and that necessary exceptions to the right of access should be limited and specific.

[31]      Thus, the message is clear: disclosure is the rule and exemption is the exception. In the instant case, the exemption invoked by the respondent falls under paragraph 22(1)(b) of the Privacy Act to the effect that the release of the information will be injurious to the conduct of lawful investigations. A similar exemption appears under paragraph 16(1)(c) of the Access to Information Act. The latter exemption was defined by the Federal Court of Appeal in Rubin v. Canada¹⁵ as being a limited and specific exemption relating to the ongoing investigation and not to other investigations in the future. In the instant case, the investigation is over.

[32]      In another Federal Court of Appeal decision involving the same plaintiff, (Rubin v. Canada (Clerk of the Privy Council))¹⁶, the Federal Court of Appeal dealt with a refusal of the Clerk of the Privy Council to release certain information under the Access to Information Act. The Court expressed belief in the confidentiality of the investigation, both during and after it is conducted, so as to preserve the integrity of the investigation process and the right of the parties to a complaint to be assured that the representations made to the Commissioner of Official Languages will remain confidential.

[33]      However, the Court made it very clear in that decision that representations made in the course of an investigation, during as well as subsequent to it, may be released if a statute requires it or allows it. The Court did not "need to examine the further argument that [the information] is protected from disclosure by virtue of paragraph 16(1)(c) of the Act"¹⁷. That decision was confirmed by the Supreme Court of Canada on January 24, 1996.

[34]      In a recent decision, Canada (Information Commissioner) v. Canada (Immigration and Refugee Board)¹⁸, my colleague Richard J. (now A.C.J.) dealt with proceedings brought under both the Access to Information Act and the Privacy Act. The proceedings challenged the validity of a decision of the Chairperson of the Immigration and Refugee Board to exempt from disclosure portions of a report prepared for the Board and notes containing information obtained from employees of the Board in the preparation of the report.

[35]      The Chairperson of the Board refused to comply with the recommendations made by both the Information Commissioner and the Privacy Commissioner because she believed that the release of the records at issue would be injurious to the conduct of future investigations. Under the title "Undertaking of Confidentiality", Richard J. noted that she informed the employee of the Board that she would keep her notes of the interview in strict confidence and that the Board would only receive her report. The learned judge's reaction was telling (at p. 15): "Her undertaking was misconceived". He analyzed the role of the purposive clause in both the Access to Information Act and the Privacy Act. He stated with reference to both clauses (at p. 19) that "the necessary exceptions to the access must be strictly construed" and so as to apply to the future "the exemption must be limited, specific and known". With reference to reasonable expectation of probable harm, he concluded as follows (at p. 22):

[para45] Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigations.

(my emphasis)

[36]      In my view, the applicant is entitled to receive the "personal information" he seeks. That information is not exempt from disclosure under paragraph 22(1)(b) of the Privacy Act. The respondent has not established that there is a reasonable expectation of probable harm to the conduct of its investigation from such a disclosure. Witnesses to investigations ought to be informed in advance that their testimony about an individual may be disclosed to him. They will be very careful what they say. Proper circumspection will protect the integrity of the investigative process and the right of the individual concerned to be fully informed of the case against him. Promises of confidentiality are not essential as the respondent has the power to issue subpoenas, if necessary. The "personal information" to which the applicant is entitled is defined under section 3 of the Privacy Act, that is information about himself that is recorded in any form and includes (under subsection 3(g)) views or opinions of other individuals about him. Under the Privacy Act, the applicant is not entitled to information other than "personal information".

[37]      Pursuant to section 49 of the Privacy Act, this Court allows the application and orders the respondent to disclose all the "personal information" requested by the applicant. Pursuant to subsection 52(1) of the Privacy Act, costs are awarded to the applicant.

OTTAWA, Ontario

October 16, 1998     

     Judge

__________________

     ¹      R.S.C., 1985, c. P-21.

     ²      R.S.C. (4th Supp.), c. 31.

     ³      Dagg v. Canada (Minister of Finance) (1997), 213 N.R. 161 (S.C.C.) at para. 69.

     ⁴      Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.), at p. 274.

     ⁵      Ibid, at p. 276 and Privacy Act, s. 47.

     ⁶      Davidson v. Canada (Solicitor General of Canada), [1987] 3 F.C. 15 at p. 23; affirmed on appeal [1989] 2 F.C. 341 (C.A.).

     ⁷      Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) at p. 60.

     ⁸      Kaiser v. Minister of National Revenue (1995), 95 D.T.C. 5416 (T.D.) and Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), [1997] F.C.J. No. 1812, at para. 43.

     ⁹      Treasury Board Policy entitled Access to Information and Privacy , chapter 2-9, s. 9.2 and Ternette v. Solicitor General of Canada, [1992] 2 F.C. 75 (T.D.) at pp. 102-103.

     ¹⁰      Rubin v. Canada (Minister of Transport), [1997] F.C.J. No. 1614 (C.A.) at paras. 25 to 38 and Canada (Information Commissioner), supra, note no. 7, at paras. 40 to 42-45.

     ¹¹      Liick v. Saskatchewan (Minister of Health) (1994), 117 D.L.R. (4th) 427 (Sask. Q.B.), at pp. 438-439 and Tubbessing v. Bell Canada et al. (1995), 22 O.R. (3d) 714 (Gen. Div.).

     ¹²      (1986), 5 F.T.R. 74 at p. 78.

     ¹³      Kane v. Board of Governors of the University of British Columbia (1980), 110 D.L.R. (3d) 311 at p. 322.

     ¹⁴      R.S.C. 1985, c. A-1.

     ¹⁵      supra, note no. 9.

     ¹⁶      [1994] 2 F.C. 707 (C.A.).

     ¹⁷      Ibid, at p. 718.

     ¹⁸      [1997] F.C.J. No. 1812 (T.D.).