Date:
20131210
Docket:
T-1851-12
Citation:
2013 FC 1234
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
December 10, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
JULIE GRANT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Julie Grant, an employee of the Canada Revenue Agency, used
section 12 of the Privacy Act, RSC 1985, c P-21 (the Act) to
obtain personal information about herself from her employer. Subsection 12(1)
reads as follows:
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12. (1) Subject to this Act, every
individual who is a Canadian citizen or a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act
has a right to and shall, on request, be given access to
(a) any personal information about the individual
contained in a personal information bank; and
(b) any other personal information about the
individual under the control of a government institution with respect to
which the individual is able to provide sufficiently specific information on
the location of the information as to render it reasonably retrievable by the
government institution.
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12. (1) Sous réserve des autres
dispositions de la présente loi, tout citoyen canadien et tout résident
permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés ont le droit de se faire communiquer sur demande:
a) les renseignements personnels le concernant et versés
dans un fichier de renseignements personnels;
b) les autres renseignements personnels le concernant et
relevant d’une institution fédérale, dans la mesure où il peut fournir sur
leur localisation des indications suffisamment précises pour que
l’institution fédérale puisse les retrouver sans problème sérieux.
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[2]
The original request for access, made on November 8,
2010, was worded as follows:
[translation]
A copy of documents and
information about me, including but not limited to all documents and
information relating to my tax file and all investigation reports directly or
indirectly about me, correspondence, memoranda, photographs, films, sound
recordings, videotapes, machine‑readable records, e‑mails etc.
This initial
request was, so to speak, amended on March 7, 2011, to, for all intents
and purposes, extend the period from November 8, 2010, to March 7. The
amended request reads as follows:
[translation]
A copy of documents and
information about me, including but not limited to all documents and
information relating to my tax file and all investigation reports directly or
indirectly about me, correspondence, memoranda, photographs, films, sound
recordings, videotapes, machine‑readable records, e‑mails etc. for
the period beginning November 8, 2010, to today.
[3]
The Canada Revenue Agency (the CRA) considered that the
request was received on March 7, 2011, for the purpose of calculating time
limits.
[4]
On April 5, 2011, the CRA extended its time limit to
process the access request for an additional 30‑day period. Despite this
extension, the time limits were not met and, ultimately, the Office of the Privacy
Commissioner of Canada (the Office) found that the time limits prescribed by
the Act had not been complied with. However, that issue is not before this
Court.
[5]
What is before this Court is the complaint made by the
applicant on March 15, 2012, which the Office received on March 16.
The applicant alleged that the respondent had used sections 12, 25 and 26 of
the Act to exclude passages that had been there.
[6]
A decision was issued regarding this complaint on
September 27, 2012. The Director General of Investigations for the Office
concluded [translation] “that the
complaint is not founded.” The Report of Findings contains the following
paragraphs that explain the decision:
[translation]
4. In her letter dated March 15,
2012, the complainant challenged the application of sections 12(1), 25 and
26 of the Act to the information redacted at pages 25 to 37 of the
documents provided by the CRA. She sought written clarification about their
application and demanded an explanation for the unjustified delay in dealing
with her request and her inability to reach the CRA’s representative.
6. Given that only sections 25 and
26 of the Act were applied to pages 25 to 37 of the documents the
complainant received, the investigation was limited to examining whether those
sections had been validly applied.
8. After a thorough review of the
circumstances surrounding this case, the explanations of the CRA
representatives and the pertinent files, we have concluded that the complainant
was not deprived of a right of access to the requested information.
9. Section 26 directs a government
institution to refuse to disclose personal information about other individuals
except in certain circumstances. Personal information may be disclosed where
the other individuals have given their consent, if the disclosure is authorized
under subsection 8(2) of the Act, which authorizes disclosure
without consent in certain specific cases only or where the information is
already publicly available.
10. Our review of the information
confirms that the information withheld does not concern the complainant, and
none of the exceptions in this provision apply in this case.
[7]
The applicant availed herself of section 41 of the Act
to seek judicial review of the refusal decision. Section 41 reads as
follows:
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41. Any
individual who has been refused access to personal information requested
under subsection 12(1) may, if a complaint has been made to the Privacy
Commissioner in respect of the refusal, apply to the Court for a review of
the matter within forty-five days after the time the results of an
investigation of the complaint by the Privacy Commissioner are reported to
the complainant under subsection 35(2) or within such further time as the
Court may, either before or after the expiration of those forty-five days,
fix or allow.
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41. L’individu qui s’est vu refuser la
communication de renseignements personnels demandés en vertu du paragraphe
12(1) et qui a déposé ou fait déposer une plainte à ce sujet devant le
Commissaire à la protection de la vie privée peut, dans un délai de
quarante-cinq jours suivant le compte rendu du Commissaire prévu au
paragraphe 35(2), exercer un recours en révision de la décision de refus
devant la Cour. La Cour peut, avant ou après l’expiration du délai, le
proroger et en autoriser la prorogation.
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[8]
The applicant presented the issue as being whether the
respondent correctly applied sections 25 and 26 of the Act. The respondent
no longer relies on section 25 and invokes only section 26 with
respect to the pages that concern the applicant. Accordingly, it is only the
application of section 26 that is the subject of this judicial review.
[9]
The very nature of section 26 is such that it is not
possible for the applicant to control its use by examining the redactions
herself. This section reads as follows:
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26. The head of a government
institution may refuse to disclose any personal information requested under
subsection 12(1) about an individual other than the individual who made the
request, and shall refuse to disclose such information where the disclosure
is prohibited under section 8.
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26. Le responsable d’une
institution fédérale peut refuser la communication des rensei-gnements
personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre
individu que celui qui fait la demande et il est tenu de refuser cette
communication dans les cas où elle est interdite en vertu de l’article 8.
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[10] The
respondent obtained permission from this Court to file a confidential affidavit
and a memorandum of fact and law also confidential. This permission was granted
by an order of Prothonotary Morneau on January 25, 2013. Applying
section 46 of the Act, the Prothonotary gave the authorisation sought by
the respondent.
[11] The
effect of this order is to permit the Court to review the unredacted documents
without the applicant present. In addition, it follows, of course, from this
first order that the respondent may submit arguments to the Court in the
absence of the applicant, ex parte and in camera. The applicant
does not have access to the redactions or the specific arguments presented in
support of the redactions. Clearly, this means that the reviewing judge must be
particularly vigilant in order to protect the applicant’s rights, given the
position she is in.
[12] I
have examined the 167 pages that were identified by the CRA in response to the
applicant’s amended request. With respect to pages 38 to 167, there is no
question that they are not covered by the amended request, and the applicant
did not seek access to them in any way. It would obviously be inappropriate to
describe why these documents are not covered other than to say they do not
constitute any of the items identified in the amended request. It should be
noted that the Act specifically provides that the right to be given access on
request applies only to personal information about the applicant. The applicant
does not wish to challenge the decision about these pages.
[13] As
for the 37 other pages, they were redacted only in some places. In this regard,
the respondent contends that the only excluded information deals with an
individual other than the applicant. Indeed, the respondent removed the
redactions at pages 26, 28, 32 and 36 the morning of the hearing. It was
explained at the hearing that this information, which undoubtedly would be
excluded information under section 26, no longer has to be excluded
because it is now in the public domain. Accordingly, there are only a few
remaining redactions.
[14] I
examined each and every one of the 37 pages. I agree with the Office’s opinion
that the redactions were authorized under section 26; in my view, they
were necessary. Section 8 of the Act, which permits disclosure in certain
circumstances to an applicant of information that would otherwise be excluded,
does not apply to the remaining redactions and, in particular, I cannot imagine
what public interest reasons could justify such a violation of privacy or how
the persons concerned could benefit from the disclosure if it had to be done.
[15] The
applicant, who is not represented by counsel, submitted an excellent memorandum
of fact and law. In it, she expresses concern about the respondent’s use of
power, referring in particular to a lack of good faith. At paragraph 46 of the
memorandum, she concedes that she [translation]
“does not dispute the fact that the CRA removed certain passages where they
constituted personal information concerning another individual.” She made the
same concession just as elegantly at the hearing. My review of the 37 pages
leads me to conclude that the redactions that were made are of this ilk.
[16] After
reviewing the documents, I must therefore conclude, as the Director General of Investigations
at the Office of the Privacy Commissioner of Canada did, that the information that
was not disclosed does not concern the applicant. Likewise, I noted that the
exceptions in section 8 of the Act do not apply in this case.
[17] The
applicant seems to have been upset by pages 33 to 37, all of which were
completely redacted with the exception of the middle of page 36, which directly
concerns the applicant. Both the public affidavit and the memorandum of fact
and law submitted by the respondent give the reason for this redaction. They
state: “CRA internal document that refers to incident relating to different
employees”.
[18] I
obviously paid particular attention to those pages, and I am completely
satisfied that this information relates to other individuals.
[19] The
parties submitted various authorities to the Court. Given that, like the
Office, I concluded that it was particularly clear that the redactions were
required under the Act, I do not consider it necessary to review these
authorities.
[20] Both
parties requested that costs be awarded to them. The applicant did not have the
benefit of seeing the information that was excluded, and it is understandable
that she had suspicions.
[21] Hence
she wondered why entire sections were not disclosed to her, particularly at pages
33 to 37. In her view, [translation]
“the fact that entire pages were not disclosed to her on the ground that they
did not concern her while the initial request was specifically directed at
obtaining personal information about her” (paragraph 49 of the memorandum) fuelled
her suspicions.
[22] In
the same way, she questioned the application of section 25 of the Act.
[23] As we
have seen, the respondent was originally relying on both sections 25 and
26 of the Act but argued only the application of section 26 on the
judicial review.
[24] In my
opinion, the specific invoice of this case provided a basis for the applicant’s
suspicions, which were not unreasonable. It would be unfortunate, it seems to
me, if costs were ordered against the applicant who was unable by herself to be
satisfied with the use of section 26 in a context where one can
understand, at least in part, the suspicions that motivated her. Even though her
application before this Court must fail, it was not frivolous on its face. However,
this is not one of those rare cares where costs should be awarded despite the result.
In the end, I find that this is not a case where costs should be ordered
against the unsuccessful party.
JUDGMENT
The
application for review under section 41 of the Privacy Act, RSC 1985, c
P-21, is dismissed. There will be no award of costs.
“Yvan Roy”
Certified true translation
Mary Jo Egan,
LLB
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