SUPREME
COURT OF CANADA
Citation: H.J. Heinz Co. of
Canada Ltd. v. Canada (Attorney General), [2006]
1 S.C.R. 441, 2006 SCC 13
|
Date: 20060421
Docket: 30417
|
Between:
Attorney General
of Canada
Appellant
and
H.J. Heinz Company
of Canada Ltd.
Respondent
and
Information
Commissioner of Canada
Intervener
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.
Reasons for
Judgment:
(paras. 1 to 64)
Dissenting
reasons:
(paras. 65 to 124)
|
Deschamps J. (Binnie, Fish and Abella JJ. concurring)
Bastarache J. (McLachlin C.J.
and LeBel J. concurring)
|
______________________________
H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney
General), [2006] 1 S.C.R. 441, 2006 SCC 13
Attorney General of Canada Appellant
v.
H.J. Heinz Company of Canada Ltd. Respondent
and
Information Commissioner of Canada Intervener
Indexed as: H.J. Heinz Co. of Canada Ltd. v.
Canada (Attorney General)
Neutral citation: 2006 SCC 13.
File No.: 30417.
2005: November 7; 2006: April 21.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish and Abella JJ.
on appeal from the federal court of appeal
Access to
information — Exemptions — Personal
information — Third party information — Review by Federal
Court — Application by third party under s. 44 of Access to
Information Act for review of government institution’s decision to disclose
record — Whether third party can raise exemption for personal
information on s. 44 review — Access to Information Act,
R.S.C. 1985, c. A‑1, ss. 19 , 20(1) , 44 .
A federal agency received a request under the Access
to Information Act (“Access Act ”) for access to certain records
pertaining to the respondent company, a third party within the meaning of the
Act . The agency determined that some of the records might contain confidential
business or scientific information, as described in s. 20(1) of the Act ,
and requested, pursuant to ss. 27 and 28 , that the company make
representations as to why the information should not be disclosed. The company
submitted its representations and after reviewing them, the agency concluded
that the records should be disclosed, subject to certain redactions. The
company commenced a review proceeding pursuant to s. 44 of the Access
Act and, in addition to the confidential business information exemption,
sought to raise the personal information exemption set out in s. 19 of the
Act . The application judge concluded that the company could raise the
s. 19 exemption on a s. 44 review and ordered the severance of
certain records containing personal information. The Federal Court of Appeal
upheld the decision.
Held (McLachlin C.J.
and Bastarache and LeBel JJ. dissenting): The appeal should be dismissed.
Per Binnie, Deschamps,
Fish and Abella JJ.: A third party may raise the exemption for
personal information set out in s. 19 of the Access Act in a
s. 44 review. The plain language of the statute, together with the
legislative context and combined purposes of the Access Act and the Privacy
Act, provides ample foundation for this conclusion. [22‑46]
It is apparent from the scheme and legislative
histories of the Access Act and the Privacy Act that the combined
purpose of the two statutes is to strike a careful balance between privacy
rights and the right of access to information. However, within this balanced
scheme, the Acts afford greater protection to personal information. By
imposing stringent restrictions on the disclosure of personal information,
Parliament clearly intended that no violation of privacy rights should occur.
Where a third party becomes aware that a government institution intends to
disclose a record containing personal information, nothing in the plain
language of ss. 28, 44 and 51 of the Access Act prevents
the third party from raising this concern by applying for review. These
sections do not limit the court’s discretion to a consideration of the
s. 20(1) exemption. Furthermore, s. 44 is the sole mechanism under
either the Access Act or the Privacy Act by which a third party
can draw the court’s attention to an intended disclosure of personal
information in violation of s. 19 of the Access Act, and by which
it can seek an effective remedy on behalf of others whose privacy is at stake.
While the Privacy Commissioner and the Information Commissioner play a central
role in the access to information and privacy scheme and have extensive
responsibilities, their role is limited by an inability to issue injunctive
relief or to prohibit a government institution from disclosing information. A
reviewing court is in a position to prevent harm from being committed and the
statutory scheme imposes no legal barrier to prevent the court from
intervening. An interpretation of s. 44 that forces an individual to wait
until the personal information is disclosed and the damage is done, or that
imposes an onerous burden on the person seeking to avert the harm, fails to
give proper content to the right to privacy and also fails to satisfy the clear
legislative goals underlying the Access Act and the Privacy Act.
A narrow interpretation of s. 44 would weaken the protection of personal
information and dilute the right to privacy. [2] [31‑35] [45] [63]
Although a review under s. 44 of the Access
Act is triggered by a third party’s right to notice where requested records
may contain confidential business information, Parliament’s failure to provide
a similar notice where personal information is involved does not indicate that
the legislature intended that s. 19 should be unavailable on a s. 44
review. The right to notice accorded to third parties follows logically from
the specific nature of the confidential business information exemption and does
not limit the right of review provided for in s. 44. First, in the case
of confidential business information, the assistance of the third party is
necessary for the government institution to know how, or if, the third party
treated the information as confidential. Second, the mandatory nature of
s. 19 precludes the need for a notice provision. Under the Access Act,
notice is a right intended to enable a party to contest the release of information
and is therefore required only where the statute contemplates the possibility
of making information public, as is the case with confidential business
information under s. 20(1) . In the specific circumstances in which the Access
Act does authorize the disclosure of personal information, a notice
provision is either superfluous or has in fact been provided for in the
legislative scheme (s. 8(5) of the Privacy Act). Given the
underlying presumption that personal information will not be disclosed as well
as the paramount importance of individual privacy, it would be absurd not to
allow third parties to use the mechanism provided for by the legislature to
prevent a violation of the spirit and the letter of the Access Act and
the Privacy Act. Allowing the company to raise the s. 19 exemption
on a s. 44 review does not create a “second tier” of third parties, but
allows the only third party who has access to s. 44 to use this remedy to
prevent harm from occurring needlessly. [41] [50‑58]
Per McLachlin C.J.
and Bastarache and LeBel JJ. (dissenting): A third party cannot raise the
s. 19 exemption for personal information on a s. 44 review. In
interpreting s. 44 of the Access Act, it is necessary to preserve
the integrity of the mechanism Parliament has selected. In order to balance the
competing rights of access and privacy, Parliament has selected a complaint and
investigation process. Where the personal information of individuals is
improperly disclosed, those individuals can bring a complaint to the Privacy
Commissioner under s. 29 of the Privacy Act. There is no notice
provision prior to the disclosure of a requested record that might contain
exempted personal information, nor does the unlawful disclosure of exempted
personal information give rise to a right of judicial review under the Access
Act or the Privacy Act. By virtue of ss. 27, 28
and 29 of the Access Act, the legislative scheme provides notice
prior to the actual disclosure only where the requested record may contain
confidential business information. Since the right to bring a s. 44
review flows from the notice a third party receives because of the believed
presence of confidential business information in the requested record,
considered in its proper statutory context, s. 44 has nothing to do with
the s. 19 exemption. The structure of the Access Act and of the Privacy
Act suggests that Parliament intended that the protection of personal
information be assured exclusively by the Office of the Privacy Commissioner.
In order to give effect to the legislative intent, the complaint and
investigation process contained in s. 29 must be
respected. [94‑97] [106] [108] [123]
Unless the opportunity to raise exemptions at a
s. 44 review proceeding is limited to the s. 20 exemption for
confidential business information, third parties who have received notice
pursuant to s. 28(1)(b) will be afforded an opportunity to raise
the s. 19 exemption for personal information in circumstances where no
comparable right exists for a third party claiming only that the record
contains personal information belonging to it. The effect of the proposed
extension of the s. 44 review would be to create two categories of third
parties: those who have relevant confidential business information and those
who do not. Such a result would be absurd insofar as it would allow greater
protection of certain individuals’ personal information, depending on the
possible application of s. 20. There is no basis for such a two‑tiered
system in either the Access Act or the Privacy Act. Furthermore,
that right of review may not even belong to the individual whose personal
information actually appears in the requested record. In the present case,
only the company has the right to apply for a review, notwithstanding that the
personal information contained in the record actually belongs to its
employees. While both the Access Act and the Privacy Act expressly
allow an authorized agent to bring complaints to the Information Commissioner
or to the Privacy Commissioner, respectively, s. 44 does not so
provide. [98‑102] [107]
Although a third party cannot raise the s. 19
exemption on a s. 44 review, where a government institution acts without
or beyond its jurisdiction, it remains open to a party directly affected by the
decision to bring an application for judicial review pursuant to s. 18.1
of the Federal Courts Act. The decision of the government institution
to disclose the requested record is reviewable for jurisdictional error, and
the remedy of prohibition is available. The Federal Court judge hearing the
judicial review application will only decline to exercise his jurisdiction if
satisfied that the statutory scheme provides an adequate alternative remedy.
Here, the statutory scheme does not provide the company with an adequate
alternative remedy. [108] [114] [117‑118]
In view of the critical differences between the
two proceedings, there are valid reasons for refusing to collapse a
s. 18.1 review within a s. 44 review. However, the Federal Court judge
could proceed with both applications at the same time or consecutively, thereby
addressing the concerns about unwarranted use of resources. [119‑121]
Cases Cited
By Deschamps J.
Referred to: Canada
(Information Commissioner) v. Canada (Commissioner of the Royal Canadian
Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8; Saint
John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1988),
24 F.T.R. 32, aff’d (1990), 107 N.R. 89; Siemens Canada
Ltd. v. Canada (Minister of Public Works and Government Services) (2001),
213 F.T.R. 125, 2001 FCT 1202, aff’d (2002), 21 C.P.R.
(4th) 575, 2002 FCA 414; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27; SNC Lavalin Inc. v. Canada (Minister for International
Cooperation), [2003] 4 F.C. 900, 2003 FCT 681; Friesen
v. Canada, [1995] 3 S.C.R. 103; Markevich v. Canada,
[2003] 1 S.C.R. 94, 2003 SCC 9; Dagg v. Canada (Minister of
Finance), [1997] 2 S.C.R. 403; Lavigne v. Canada (Office of
the Commissioner of Official Languages), [2002] 2 S.C.R. 773,
2002 SCC 53; Davidson v. Canada (Solicitor General), [1989]
2 F.C. 341; Krause v. Canada, [1999] 2 F.C. 476; Morneault
v. Canada (Attorney General), [2001] 1 F.C. 30; R. v. McIntosh,
[1995] 1 S.C.R. 686; Canadian Tobacco Manufacturers’ Council v.
Minister of National Revenue (2003), 239 F.T.R. 1,
2003 FC 1037; Air Atonabee Ltd. v. Canada (Minister of Transport) (1989),
27 F.T.R. 194; Brookfield LePage Johnson Controls Facility
Management Services v. Canada (Minister of Public Works and Government
Services), [2003] F.C.J. No. 348 (QL), 2003 FCT 254; Harelkin
v. University of Regina, [1979] 2 S.C.R. 561; Canadian Pacific
Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3.
By Bastarache J. (dissenting)
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Dagg v. Canada (Minister of
Finance), [1997] 2 S.C.R. 403; Canada (Information
Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police),
[2003] 1 S.C.R. 66, 2003 SCC 8; Lavigne v. Canada
(Office of the Commissioner of Official Languages), [2002]
2 S.C.R. 773, 2002 SCC 53; Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84,
2002 SCC 3; ATCO Gas and Pipelines Ltd. v. Alberta (Energy &
Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4; R. v.
Miller, [1985] 2 S.C.R. 613; Canada (Auditor General) v.
Canada (Minister of Energy, Mines and Resources), [1989]
2 S.C.R. 49; Canadian Pacific Ltd. v. Matsqui Indian Band,
[1995] 1 S.C.R. 3; Bristol‑Myers Squibb Co. v. Canada
(Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26; Aliments
Prince Foods Inc. v. Canada (Ministre de l’Agriculture et Agroalimentaire)
(2001), 272 N.R. 184.
Statutes and Regulations Cited
Access to Information Act, R.S.C. 1985, c. A‑1, ss. 2 , 3 “record”,
“third party”, 4, 7, 9, 10, 13 to 18, 19, 20, 21 to 30, 35, 36, 37, 41, 42(1),
44, 51, 54(2), 55(2), 63, 64, 66(1).
Access to Information Act , S.C. 1980-81-82-83, c. 111, Sch. I, s. 28(5).
Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 2(1) “federal board,
commission or other tribunal”, 18, 18.1, 18.5.
Personal Information Protection
and Electronic Documents Act, S.C. 2000,
c. 5 , Part I.
Privacy Act, R.S.C. 1985, c. P‑21, ss. 2 , 3 “personal
information”, 4 to 8, 21, 29, 31 to 35, 37, 46, 53(2), 54(2), 55(1), 64, 65,
67(1).
Authors Cited
Bennett, Colin J. “The
privacy commissioner of Canada: Multiple roles, diverse expectations and
structural dilemmas” (2003), 46 Canadian Public Administration 218.
Canada. House of Commons
Debates, vol. VI, 1st Sess., 32nd Parl., January 29,
1981, pp. 6689‑91.
Canada. Justice Canada. Report
of the Special Advisor to the Minister of Justice. The Offices of the
Information and Privacy Commissioners: The Merger and Related Issues, by
Gérard V. La Forest, November 15, 2005 (online:
www.justice.gc.ca/en/pl/toc.html).
Driedger, Elmer A. Construction
of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Sullivan, Ruth. Sullivan and
Driedger on the Construction of Statutes, 4th ed. Markham, Ont.:
Butterworths, 2002.
APPEAL from a judgment of the Federal Court of Appeal
(Desjardins, Nadon and Pelletier JJ.A.), [2005] 1 F.C.R. 281,
241 D.L.R. (4th) 367, 320 N.R. 300, 14 Admin. L.R.
(4th) 123, 32 C.P.R. (4th) 385, [2004] F.C.J. No. 773 (QL),
2004 FCA 171, upholding a decision of Layden‑Stevenson J.,
[2003] 4 F.C. 3, [2003] F.C.J. No. 344 (QL),
2003 FCT 250. Appeal dismissed, McLachlin C.J. and Bastarache
and LeBel JJ. dissenting.
Christopher Rupar,
for the appellant.
Nicholas McHaffie
and Craig Collins‑Williams, for the respondent.
Raynold Langlois, Q.C.,
and Daniel Brunet, for the intervener.
The judgment of Binnie, Deschamps, Fish and Abella JJ.
was delivered by
Deschamps J. —
1. Introduction
1
This case concerns the delicate balance between privacy rights and the
right of access to information. The respondent, H.J. Heinz Company of Canada
Ltd. (“Heinz”), contests the disclosure of certain documents on the ground that
they contain personal information. Heinz, as a “third party” within the
meaning of the Access to Information Act, R.S.C. 1985, c. A‑1 (“Access
Act ”), seeks to raise the personal information exemption set out in s. 19
by means of an application for review under s. 44 of that Act . The appellant,
the Attorney General of Canada, and the intervener, the Information
Commissioner of Canada, however, argue that the documents must be disclosed.
They assert that the review mechanism provided for in s. 44 is limited to the
confidential business information which was the basis for Heinz’s third
party status in the first place. In their submission, a person wishing to
complain about the disclosure of personal information should instead
seek a remedy under the Privacy Act, R.S.C. 1985, c. P‑21 .
2
The Attorney General’s narrow interpretation of the legislative scheme
is, in my view, too restrictive of the rights involved. This Court has stated
on numerous occasions that the Privacy Act and the Access Act
must be read together as a “seamless code”: Canada (Information
Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police),
[2003] 1 S.C.R. 66, 2003 SCC 8 (“RCMP”), at para. 22. The right of
access to government information, while an important principle of our democratic
system, cannot be read in isolation from an individual’s right to privacy. By
including a mandatory privacy exemption in the Access Act itself,
Parliament ensured that both statutes recognize that the protection of the
privacy of individuals is paramount over the right of access, except as
prescribed by law. Where a third party becomes aware that a government
institution intends to disclose a record containing personal information,
nothing in the plain language of the Access Act prevents the third party
from raising this concern by applying for judicial review. What matters is not
how the reviewing court became aware of the government’s wrongful decision to
disclose personal information, but the court’s ability to give meaning to the
right to privacy. A reviewing court is in a position to prevent harm from
being committed and the statutory scheme imposes no legal barrier to prevent
the court from intervening. An interpretation of s. 44 that forces an
individual to wait until the personal information is disclosed and the damage
is done, or that imposes an onerous burden on the person seeking to avert the
harm, fails to give actual content to the right to privacy and also fails to
satisfy the clear legislative goals underlying the Access Act and the
Privacy Act .
2. Facts
3
In June 2000, the Canadian Food Inspection Agency (“CFIA”) received a
request under the Access Act for access to certain records pertaining to
Heinz. The CFIA determined that some of the records might contain confidential
business or scientific information, as described in s. 20(1) of the Access
Act, and requested, pursuant to ss. 27 and 28 of the Act , that Heinz make
representations as to why the documents should not be disclosed. Heinz
submitted its representations in early September. After reviewing them, the
CFIA concluded that the records should be disclosed, subject to certain
redactions, and notified Heinz of its decision. On September 27, 2000, Heinz
commenced a review proceeding pursuant to s. 44 of the Access Act,
arguing that certain records should not be disclosed because they fell under
two exemptions established by the Act : that of s. 20(1) , which prohibits the
disclosure of confidential business information, and that of s. 19(1) , which
prohibits the disclosure of personal information relating to individuals.
4
In the review proceeding, the Attorney General argued that it was
inappropriate for Heinz to raise any exemption other than s. 20(1) because it
was the presence of business information which was the basis for Heinz’s right
of review in the first place. The application judge disagreed, concluding that
Heinz could raise the personal information exemption under s. 19 , and ordered
the severance of certain records containing personal information relating to
individuals. The Attorney General appealed that decision. The Federal Court of
Appeal dismissed the appeal.
3. Judicial History and Case Law
5
The judgments of both the Federal Court of Appeal and the Federal
Court—Trial Division are rooted in the jurisprudence of the Federal Court of
Canada. I will therefore review the judgments in this case in conjunction with
the case law of the Federal Court of Canada.
3.1 Federal Court—Trial Division, [2003]
4 F.C. 3, 2003 FCT 250
6
In the Trial Division, Layden-Stevenson J. considered whether, in a s.
44 application for review, Heinz could raise the prohibition against the
disclosure of personal information established by s. 19 of the Access Act.
She reviewed two prior Federal Court of Canada decisions which appeared to come
to contradictory conclusions regarding the scope of s. 44: Saint John
Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1988), 24
F.T.R. 32, aff’d (1990), 107 N.R. 89 (C.A.), and Siemens Canada Ltd. v.
Canada (Minister of Public Works and Government Services) (2001), 213
F.T.R. 125, 2001 FCT 1202, aff’d (2002), 21 C.P.R. (4th) 575, 2002 FCA 414.
7
Saint John Shipbuilding, concerned an application under s.
44 for a review of a decision by the Department of Supply and Services to
release certain extracts from and summaries of a contract with the Government
of Canada. The applicant was primarily concerned with the proper application of
s. 20(1)(c) and (d) of the Access Act but urged the court
to consider s. 15 as well. Section 15 provides that the head of an institution
“may refuse to disclose any record requested under this Act that contains
information the disclosure of which could reasonably be expected to be
injurious to . . . the defence of Canada”. Because the material at
issue consisted of defence‑related contracts, the applicant raised the
fact that s. 15 of the Access Act might also exempt the records from
disclosure, and urged the court to be particularly reticent to allow the records
to be released. However, both the Trial Division and the Federal Court of
Appeal rejected the applicant’s arguments respecting s. 15 . Martin J., writing
for the Trial Division, held that his powers of review in a s. 44 proceeding
were limited to the considerations set out in s. 20(1) of the Act and that the
national security issue was irrelevant to the proceeding. Similarly, Hugessen
J.A. at the Federal Court of Appeal stated that “the appellant’s interest, as
third party intervenor in a request for information, is limited to those
matters set out in s. 20(1) ” (para. 9).
8
In Siemens, by contrast, the Federal Court of Appeal held that it
was unable to interpret s. 44 in a way that would limit the jurisdiction of the
court and prevent s. 24 from being involved. By implication, therefore, the
Court of Appeal found that the applicant was not limited to the exemption set
out in s. 20(1) of the Access Act. The applicant objected to the
disclosure of information on the ground that s. 30 of the Defence Production
Act , which is incorporated into the Access Act by virtue of
s. 24 , precluded release of the documents. At trial, McKeown J. accepted
that s. 30 of the Defence Production Act applied, thereby implicitly
accepting that he had jurisdiction to apply s. 24 in the context of a s. 44
application. Crown counsel apparently argued against this approach on appeal,
asserting that s. 44 limits the jurisdiction of the court such that only s.
20(1) can be raised in a s. 44 review. In delivering a laconic decision from
the bench, however, the Federal Court of Appeal dismissed the Crown’s
arguments, stating simply: “We are unable to interpret s. 44 in this way.”
9
At trial in the instant case, Layden-Stevenson J. reconciled Saint
John Shipbuilding and Siemens by pointing out that the Access Act
contains both mandatory and discretionary exemptions and that the procedure for
refusing disclosure differs under the two types of exemptions. A mandatory
exemption requires only a decision as to whether the material falls within the
exemption; a discretionary exemption, by contrast, requires the government
institution to determine, first, whether the information falls within the
exemption and, second, whether the material should be disclosed regardless.
Layden-Stevenson J. found that the holding in Saint John Shipbuilding related
specifically to the application of a discretionary exemption and did not
prohibit raising mandatory exemptions in an application for review under
s. 44. She added that in Siemens, the Federal Court of Canada had, in
addressing the application of a mandatory exemption (s. 24), found that the
exemption in question could be raised in a s. 44 proceeding. She therefore
concluded, on the basis that the s. 19 prohibition against disclosing personal
information is a mandatory exemption, that Heinz could raise s. 19 in a s. 44
proceeding.
10
Finally, Layden-Stevenson J. relied on the principles of statutory
interpretation stated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27, to hold that Heinz was entitled to raise the personal information
exemption because there is no restriction on the “representations” that can be
made under s. 28 of the Access Act. She agreed that some of the
requested information met the criteria of s. 19 and severed specific
passages as a result. She ordered that the remaining records be disclosed.
3.2 Federal Court of Appeal, [2005] 1
F.C.R. 281, 2004 FCA 171
11
On appeal, Nadon J.A. held that Siemens had settled the debate
regarding the scope of s. 44 and that it was impossible to distinguish Siemens
from the instant case on any basis. The Federal Court of Appeal had clearly
decided in Siemens that a third party could, on a s. 44 application,
seek to prevent the disclosure of records on the basis of exemptions other than
confidential business information. Nadon J.A. refused to overturn Siemens,
because it could not be said that the decision in that case was “manifestly
wrong” (para. 56). He accordingly dismissed the appeal.
3.3 Applicability of the Case Law
12
Neither Saint John Shipbuilding nor Siemens provides this
Court with specific reasoning on the proper scope of a s. 44 application. More
importantly, the exemption provision at issue here (s. 19 ) differs markedly in
nature, purpose and application from the exemption provisions raised in the
prior cases. Parliament’s harmonized design of access to information and
privacy legislation clearly indicates, as this Court’s jurisprudence has
confirmed, that the Access Act and the Privacy Act must be read
together, with special emphasis given to the protection of personal
information.
13
The applicability of the personal information exemption in a s. 44
proceeding was also at issue in SNC Lavalin Inc. v. Canada (Minister for
International Cooperation), [2003] 4 F.C. 900, 2003 FCT 681, which was
heard by the Federal Court—Trial Division soon after the case at bar. In that
case, SNC Lavalin, a large engineering construction company, contested a
decision of the Canadian International Development Agency to disclose documents
to an access requester. Like Heinz, SNC Lavalin claimed that a number of the
requested documents contained personal information relating to individuals and
should not be released pursuant to s. 19 of the Access Act. The trial
judge rejected Lavalin’s arguments, suggesting that in order to confer on a
third party a right to make representations unrelated to confidential business
information (s. 20(1) ), the court would have to read words into s. 28(1),
the provision which establishes a third party’s right to make representations.
Reading in would violate the established principle that “the court should not
accept an interpretation which requires the insertion of extra wording where
there is another acceptable interpretation which does not require any
additional wording”: Friesen v. Canada, [1995] 3 S.C.R. 103, at para.
27, as cited in Markevich v. Canada, [2003] 1 S.C.R. 94, 2003 SCC 9, at
para. 15.
14
For the reasons discussed below, however, I am unable to agree with the
trial judge’s conclusions in SNC Lavalin. The applicability of s. 19 in
the context of a s. 44 review is now squarely before the Court and must be
addressed keeping in mind the principles of statutory interpretation and, in
particular, the broader purpose and context of the federal access to
information and privacy legislation.
15
Before proceeding to the analysis, it will thus be helpful to review the
legislative framework.
4. Legislative Provisions
16
The relevant legislative provisions are set out in the Appendix.
However, the process under the Access Act for reviewing decisions to
disclose information involves the interaction of multiple provisions,
and it is worth examining the key provisions in greater detail.
17
The Access Act establishes a broad right of access to records
under the control of government institutions (s. 4). At the same time, the Act
recognizes that rights of access are not absolute by outlining a number of
exemptions to disclosure (ss. 13 to 26 ). Most important for the purposes
of this case are the exemptions relating to personal information (s. 19) and to
confidential business information (s. 20(1) ). They provide as follows:
19. (1) Subject to subsection (2), the head
of a government institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in section 3 of the Privacy
Act .
(2) The head of a government institution may
disclose any record requested under this Act that contains personal information
if
(a) the individual to whom it relates
consents to the disclosure;
(b) the information is publicly
available; or
(c) the disclosure is in accordance
with section 8 of the Privacy Act .
20. (1) Subject to this section, the head of
a government institution shall refuse to disclose any record requested under
this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical
information that is confidential information supplied to a government
institution by a third party and is treated consistently in a confidential
manner by the third party;
(c) information the disclosure of which could reasonably
be expected to result in material financial loss or gain to, or could
reasonably be expected to prejudice the competitive position of, a third party;
or
(d) information the disclosure of which could reasonably
be expected to interfere with contractual or other negotiations of a third
party.
18
Section 19(1) thus creates a mandatory prohibition against the
disclosure of “personal information”, which is defined in s. 3 of the Privacy
Act as “information about an identifiable individual that is recorded in
any form”. Section 20(1) prohibits the disclosure of records containing
confidential business information supplied by a “third party”. A “third party”
is defined as “any person, group of persons or organization other than the
person that made the request or a government institution” (s. 3 of the Access
Act). The parties are not debating at this stage whether certain
information contained in the records meets the criteria of s. 19 ; rather, the
issue in the case at bar is whether s. 19 may be raised in a s. 44 review
proceeding.
19
Where a government institution intends to disclose confidential business
information, the Access Act provides that the institution must give the
third party notice (s. 27(1)) and that the third party has the right to make
representations to the institution as to why the record should not be
disclosed (s. 28(1)(a)). It is important to note that the third party
also has the right to be given notice if the institution decides to go ahead
and disclose the record (s. 28(1)(b)). (This right to notice is also
triggered under s. 29(1) of the Access Act by a recommendation for
disclosure by the Information Commissioner, although only s. 28(1) is relevant
to the facts of the instant case.) If the third party wishes to contest the
government institution’s decision to disclose the record, he or she may apply
to the Federal Court for a review of the matter pursuant to s. 44(1), which reads
as follows:
44. (1) Any third party to whom the head of
a government institution is required under paragraph 28(1)(b) or
subsection 29(1) to give a notice of a decision to disclose a record or a part
thereof under this Act may, within twenty days after the notice is given, apply
to the Court for a review of the matter.
Third parties
who have received notice regarding the disclosure of confidential business
information are thus accorded a special right of review. Moreover, if a s. 44
review is initiated, the person who made the original request for access must
be notified and given the opportunity to appear as a party (ss. 44(2) and
44(3)).
20
These provisions must now be put in context.
5. Analysis
5.1 Statutory Interpretation
21
As with most questions of statutory interpretation, the dispute can be
resolved through what is now commonly referred to as the modern approach: “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” (Rizzo & Rizzo Shoes, at para.
21 (citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at
p. 87)).
5.1.1 Legislative History
22
Originally considered together by Parliament and enacted simultaneously
in 1982, the Access Act and the Privacy Act are parallel statutes
which in combination provide a cohesive framework for balancing the right of
access to information and privacy rights: Dagg v. Canada (Minister of
Finance), [1997] 2 S.C.R. 403, at para. 45. As is clear from the
parliamentary debates at the time the Acts were introduced, Parliament intended
the new, comprehensive access to information and privacy legislation to
increase government accountability in two ways: first, by ensuring that access
to information under government control is a public right rather than a matter
of government discretion and, second, by strengthening the rights of
individuals to know “how personal information will be used . . . that
the information used for decision-making purposes is accurate . . .
and that information collected by government institutions is relevant to their
legitimate programs and operations”: House of Commons Debates, vol. VI,
1st Sess., 32nd Parl., January 29, 1981, at pp. 6689-91, Second Reading of Bill
C-43 by the Hon. Mr. Francis Fox, then Minister of Communications.
23
Significantly, while protecting personal information is the primary
purpose of the Privacy Act , the Access Act also recognizes
the importance of protecting privacy rights, and in so doing necessarily
qualifies the right of access to information under government control
articulated in s. 4(1) of the Act : RCMP, at para. 22. Indeed, when the Access
Act and the Privacy Act were introduced in Parliament, the then
Minister of Communications emphasized that, while the Bill dealt with both
access to information and privacy, it ensured “a consistent treatment of
personal information and the protection of individual privacy” (House of
Commons Debates, at p. 6690 (emphasis added)). More specifically, the
legislature ensured the protection of personal information under the Access
Act through s. 19, which mandatorily prohibits government institutions from
disclosing personal information about an individual to an access requester,
subject to certain exceptions.
24
As demonstrated by the background to the enactment of the two statutes,
therefore, Parliament has created a legislative scheme which, while intended to
ensure access to information on the one hand and protect individual privacy on
the other, consistently protects personal information. As a result of these
tightly interlaced legislative histories, s. 44 cannot be interpreted simply
with regard to the purpose of the Access Act, but must also be
understood with reference to the purpose of the Privacy Act . I will
therefore now turn to an analysis of the differing, but connected, purposes of
the two statutes.
5.1.2 Purpose
25
As I have suggested, the closely related legislative histories of the Access
Act and the Privacy Act require a reviewing court to consider the
purposes of both statutes rather than viewing each one in isolation from the
other. In Dagg, La Forest J. (dissenting but not on this point) came to
the same conclusion. Addressing the tension between “two competing legislative
policies” (para. 45), he suggested that while some friction between the right
of access to information and privacy rights is inevitable, the two statutes
“set out a coherent and principled mechanism for determining which value should
be paramount in a given case” (para. 45). Like two sides of the same coin, the
Access Act and the Privacy Act ensure that neither the right of
access to information nor the right to individual privacy is given absolute
pre-eminence.
26
The intimate connection between the right of access to information and
privacy rights does not mean, however, that equal value should be accorded to
all rights in all circumstances. The legislative scheme established by the Access
Act and the Privacy Act clearly indicates that in a situation
involving personal information about an individual, the right to privacy is
paramount over the right of access to information, except as prescribed by the
legislation. Both Acts contain statutory prohibitions against the disclosure
of personal information, most significantly in s. 8 of the Privacy Act
and s. 19 of the Access Act. Thus, while the right to privacy is the
driving force behind the Privacy Act , it is also recognized and enforced
by the Access Act.
27
As I have mentioned, s. 44 provides third parties with a right to apply
to the Federal Court for review of decisions to disclose records. This right
of review helps to promote one of the underlying purposes of the Access Act:
to ensure that decisions on disclosure are “reviewed independently of government”
(s. 2(1) ). Indeed, the review mechanisms created by the two Acts introduce an
important level of governmental accountability. As the Minister of
Communications stated upon introducing the Privacy Act and the Access
Act in Parliament, the Acts allow the courts to examine whether a
government institution had reasonable grounds for its decision to disclose a
particular record, placing the burden squarely on the shoulders of government: House
of Commons Debates, at p. 6691. Section 44 thus establishes a key
mechanism by which a government institution’s erroneous decision to disclose
information may be reviewed and rectified pursuant to the principles of the Access
Act.
28
Given the interlocking nature of the two Acts, the right of review
provided for in s. 44 must be interpreted with regard not only to the purpose
and structure of the Access Act, but also to the legislative purposes of
the Privacy Act . As indicated, the purpose of the Privacy Act is
to protect the privacy of individuals with respect to personal information
about themselves that is held by a government institution (s. 2). The
importance of this legislation is such that the Privacy Act has been
characterized by this Court as “quasi-constitutional” because of the role
privacy plays in the preservation of a free and democratic society: Lavigne
v. Canada (Office of the Commissioner of Official Languages), [2002] 2
S.C.R. 773, 2002 SCC 53, at para. 24; Dagg, at paras. 65-66.
29
The central protection relating to the disclosure of personal
information is provided for in s. 8(1) of the Privacy Act , which
establishes in strict terms that “[p]ersonal 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.” The Privacy Act also provides a number of exceptions to the
prohibition against disclosing personal information, including a “public
interest” limitation on privacy rights (see s. 8(2)(a) through (m)).
However, even where a government institution discloses personal information by
exercising its public interest discretion, it must notify the Privacy
Commissioner prior to disclosure where reasonably practicable, and the Privacy
Commissioner may notify the individual (s. 8(5) ). Thus, it is clear from the
legislative scheme established by the Access Act and the Privacy Act
that in a situation involving personal information about an individual, the
right to privacy is paramount over the right of access to information.
30
It is worth noting, however, that despite the emphasis on the protection
of privacy, the legislative scheme ensures that the rights of the access
requester are also taken into account in the context of an application for
review. Where a s. 44 review has been initiated, the person who made the
original request for access must be notified and given the opportunity to make
representations (ss. 44(2) and 44(3)). In this way, the statute provides
a further mechanism for balancing the rights of access requesters and of those
who object to disclosure.
31
It is apparent from the scheme and legislative histories of the Access
Act and the Privacy Act that the combined purpose of the two
statutes is to strike a careful balance between privacy rights and the right of
access to information. However, within this balanced scheme, the Acts afford
greater protection to personal information. By imposing stringent restrictions
on the disclosure of personal information, Parliament clearly intended that no
violation of this aspect of the right to privacy should occur. For this
reason, since the legislative scheme offers a right of review pursuant to
s. 44, courts should not resort to artifices to prevent efficient
protection of personal information.
5.1.3 Legislative Context of Section 44
32
The histories and purposes of the Privacy Act and the Access
Act illustrate the intimate relationship between the two statutes. This
relationship is also reflected in the comprehensive legislative scheme created
by the two statutes. The legislative context of s. 44 thus provides further
guidance regarding the proper scope of the review power.
33
Structurally and conceptually, the Privacy Act and the Access
Act create a complementary and harmonious legislative scheme: RCMP,
at para. 22. This is evidenced in particular by the way in which the Acts make
reference to each other (see, for example, ss. 19(1) and 19(2) of the Access
Act, and ss. 3 , 21 , 46 , and 65 of the Privacy Act ) and by the lack
of repetition between them. The two statutes also establish analogous roles
for the Information Commissioner and the Privacy Commissioner, each of whom is
charged with carrying out impartial, independent and non-partisan
investigations into the violation of, respectively, the right of access to
information and privacy rights. Indeed, pursuant to s. 55(1) of the Privacy
Act , the Information Commissioner may be appointed as Privacy Commissioner,
and thus a single individual can hold both offices.
34
The Information Commissioner and the Privacy Commissioner benefit not
only individuals who request access or object to disclosure, but also the
Canadian public at large, by holding the government accountable for its
information practices. As this Court has emphasized in the past, the
Commissioners play a crucial role in the investigation, mediation, and
resolution of complaints alleging the improper use or disclosure of information
under government control: Lavigne, at paras. 37-39. Also, as former
Justice La Forest notes in a recent report entitled The Offices of the
Information and Privacy Commissioners: The Merger and Related Issues,
Report of the Special Advisor to the Minister of Justice (November 15, 2005),
at pp. 17-18, the role and responsibilities of the Commissioners extend even
further to include auditing government information practices, promoting the
values of access and privacy nationally and internationally, sponsoring
research, and reviewing proposed legislation.
35
However, as the following discussion will show, in the specific
circumstances of the case at bar, the Privacy Commissioner and the Information
Commissioner are of little help because, with no power to make binding orders,
they have no teeth. Where, as here, a party seeks to prevent the
disclosure of information as opposed to requesting its release, the
Commissioners’ role is necessarily limited by an inability to issue injunctive
relief or to prohibit a government institution from disclosing information.
Section 44 is therefore the sole mechanism under either the Access Act or
the Privacy Act by which a third party can draw the court’s attention to
an intended disclosure of personal information in violation of s. 19 of the Access
Act, and by which it can seek an effective remedy on behalf of others whose
privacy would be affected by the disclosure of documents for which the third
party is responsible.
36
The Privacy Act establishes a central role for the Privacy
Commissioner in the protection of privacy rights. Under s. 29(1)(a)
through (f), individuals who believe that personal information about
themselves has been wrongfully used or disclosed by a government institution
may complain to the Privacy Commissioner. The Privacy Commissioner is charged
with receiving and investigating such complaints and, where they are
well-founded, with reporting his or her findings and recommendations to the
appropriate government institution (ss. 29(1) and 35). To do this, the
Commissioner is accorded broad investigative powers, including the powers to
summon and enforce the appearance of persons, compel persons to give evidence,
enter government premises, and examine records on government premises
(s. 34). Pursuant to s. 37, the Privacy Commissioner may also carry out
its own investigations in respect of personal information under the control of
government institutions to ensure compliance with the Privacy Act .
However, while these complaint mechanisms are important in the larger scheme of
the Privacy Act , they are available only where the wrongful disclosure
has already occurred and where the complaint is laid directly by the
person who is the subject of the information that was wrongfully disclosed
(i.e. not by a third party). The Privacy Commissioner may not, therefore, act
to prevent the disclosure of personal information.
37
Third parties may receive some assistance from the Privacy Commissioner
pursuant to s. 29(1) (h)(ii) of the Privacy Act , which requires
the Privacy Commissioner to receive and investigate complaints “in respect of
any other matter relating to . . . the use or disclosure of personal
information under the control of a government institution”. In contrast to s.
29(1) (a) through (f), this provision accords the Privacy
Commissioner a broader ambit of investigation and does not appear to be limited
to situations where the wrongful disclosure of personal information has already
occurred or where the complaint was received directly from the individual
involved. It may therefore be open to a third party to initiate a complaint on
behalf of employees or others before disclosure occurs. This broader
complaint mechanism is inadequate, however, because the Privacy Commissioner
has no authority to issue decisions binding on the government institution or
the party contesting the disclosure. Nor does the Commissioner have an
injunctive power which would allow it to stay the disclosure of information
pending the outcome of an investigation. Indeed, s. 7 of the Access Act
requires the government institution to disclose the requested information
within a specific time limit once a disclosure order is issued. The Privacy
Commissioner’s ability to provide relief to Heinz is thus very limited.
38
In a manner similar to the Privacy Act , the Access Act
establishes a central role for the Information Commissioner, who is charged
with protecting and acting as an advocate of the rights of access requesters,
and with conducting investigations. In a dispute under the Access Act,
where a person makes a request to a government institution for access to a
record and the request is denied, the requester may file a complaint with the
Information Commissioner, which the Commissioner must investigate (s. 30 ).
Section 36 of the Access Act accords to the Information Commissioner
broad investigative powers similar to those of the Privacy Commissioner and, as
a result of its expertise, staff and flexibility, the office of the Information
Commissioner is in a unique position to conduct such investigations: Davidson
v. Canada (Solicitor General), [1989] 2 F.C. 341 (C.A.).
39
However, the Information Commissioner is of only limited assistance in
circumstances like those in the case at bar. The primary role of the
Information Commissioner is to represent the interests of the public by acting
as an advocate of the rights of access requesters. Here, Heinz is contesting
a decision to disclose information. While s. 30(1)(f) of the Access
Act charges the Information Commissioner with receiving and investigating
complaints “in respect of any other matter relating to requesting or
obtaining access to records under this Act ”, such broad language does not
change the fact that the role of the Information Commissioner, and this is
consistent with the purpose of the Access Act as a whole, is to act,
where appropriate, as an advocate of the disclosure of information. Moreover,
like the Privacy Commissioner, the Information Commissioner may not issue
binding orders or injunctive relief and accordingly cannot order the government
not to disclose a record.
40
Section 44 thus establishes the sole mechanism within the scheme of the Access
Act and the Privacy Act by which a third party may request an
independent review of a ministerial or government decision to disclose
information. As a result, s. 44 helps to promote the purposes of both Acts by
providing an avenue for complaints relating to the violation of privacy and
ensuring that government institutions are accountable for their information
practices.
5.1.4 Plain and Ordinary Meaning
41
As has been discussed, a review under s. 44 of the Access Act is
triggered by a third party’s right to notice where requested records may
contain confidential business information. While the notice provisions
relating to the disclosure of confidential business information therefore
necessarily limit the availability of a s. 44 review, the plain language of ss.
28, 44 and 51 of the Access Act does not explicitly restrict the scope
of the right of review. On the contrary, four key words or expressions, read
in their “plain and ordinary meaning”, indicate the legislature’s intention to
give the court a generous ambit of review on a s. 44 application.
42
First, the plain language of s. 28 supports a broad interpretation of
the review process. As has been mentioned, the Access Act provides that
a third party has a right to make “representations” to the government
institution as to why “the record or the part thereof should not be disclosed”
(s. 28(1)(a)). As the trial judge noted, nothing in that section explicitly
purports to limit the range of representations that can be made, “provided, of
course, they are relevant to the issue of disclosure” (para. 24). Had the
legislature intended to limit the scope of such representations, it would have
included references to this effect.
43
Second, the use of the word “record” in s. 28 indicates a legislative
intent to make the entire record available for review, not simply the specific
information subject to s. 20(1) . Section 3 of the Access Act
specifies that “record” includes a wide range of “documentary material,
regardless of physical form or characteristics”, such as books, maps, drawings,
photographs, sound recordings, and videotapes. This definition relates to the
physical form of the information and places no limits on the scope of the
review. Similarly, s. 51 of the Access Act refers to a reviewing judge
in a s. 44(1) application determining whether a record “or part thereof” should
be disclosed. The Access Act clearly envisions a “record” as a “set” of
information which can be divided or severed. For example, a book may include
many discrete and severable “pieces” of information, each of which might be
reviewed on a different basis. This broader interpretation is confirmed by the
use, in the French version of s. 28 , of the word “document” rather than
“renseignements”.
44
Third, s. 44 allows the third party to apply to the court for a review
of “the matter”. Nothing in the plain language of s. 44 expressly limits the
scope of “the matter”. The French version is even more general because the
subject of the review is not mentioned. What is more, in a case dealing with
the interpretation of s. 18 of the Federal Courts Act, R.S.C. 1985, c.
F-7 , the Federal Court of Appeal held that “matter” embraces “not only a
‘decision or order’ but any matter in respect of which a remedy may be
available under section 18 of the Federal Court Act ”: Krause v.
Canada, [1999] 2 F.C. 476, at para. 21; see also Morneault v. Canada
(Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 42.
45
Finally, s. 51, which establishes the powers of the court on a s. 44
application, also suggests a broad interpretation. Section 51 states that:
51. Where the Court determines, after
considering an application under section 44, that the head of a government
institution is required to refuse to disclose a record or part of a
record, the Court shall order the head of the institution not to disclose the
record or part thereof or shall make such other order as the Court deems
appropriate.
Again, nothing
in this section limits the court’s discretion to a consideration of the
s. 20(1) exemption alone. Indeed, the use of the word “required”, coupled
with the mandatory nature of s. 19(1), suggests that the court has an obligation
to review any aspect of the record where the government has failed to abide by
the provisions governing disclosure. This obligation is underscored by the
emphasis placed on the protection of privacy rights in both the Access Act
and the Privacy Act .
46
The broad language of s. 44, combined with the fact that this section
provides the only direct access to the effective protection afforded by a
reviewing court, lends support to the conclusion that the court’s jurisdiction
should not be limited by the circumstances under which the third party was
given notice. The plain language of the statute, together with the legislative
context and combined purposes of the Access Act and the Privacy Act ,
provides ample foundation for the conclusion that the reviewing court has
jurisdiction to protect personal information on a third party application for
review.
6. Arguments for Limiting the Scope of a
Section 44 Review
47
The parties have presented a number of arguments in support of a more
restrictive interpretation of s. 44 which merit further attention.
6.1 The History of Section 28(1)
48
The Attorney General argues that because s. 27 refers specifically to
“information described in paragraph 20(1) (b)”, s. 28 should also be read
to include this reference. Prior to the revision and consolidation of the
Statutes of Canada in 1985, the current s. 28(1)(a), which grants a
third party the right to make representations to the government institution,
and s. 27(1), which provides the third party with a right to notice of the
decision to disclose, were combined in one provision (S.C. 1980-81-82-83, c.
111, Sch. I, s. 28(5)). These rights to notice and to make representations were
thus included in a single section which referred explicitly to the exemption
under s. 20(1) . Thus, according to the Attorney General, the right of a
third party to make representations under s. 28 of the Access Act is
limited to the part of the record which contains information described in s. 20
or, in other words, to confidential business information.
49
However, where a statutory provision is severed, the introductory words
of the first provision are not necessarily read into the second: R. v.
McIntosh, [1995] 1 S.C.R. 686. In McIntosh, a case concerning two
provisions which had originally been combined in one, the Court refused to read
the introductory words of the original provision into the new provisions.
Finding that Parliament’s decision not to reproduce the crucial words in the
second provision “is the best and only evidence we have of legislative
intention” (para. 25), Lamer C.J. concluded that he could not distort the clear
and unequivocal wording of the provision. In the instant case, Parliament’s
decision not to link s. 28 explicitly to s. 20 must be regarded as
significant. Moreover, no inconsistent results flow from a non-restrictive
reading of the provision. Rather, interpreting ss. 28 and 44 to allow for
representations based on s. 19 serves to strengthen the protection of personal
information, which is a stated goal of the Privacy Act and an underlying
theme of the Access Act.
6.2 The Notice Scheme
50
The Attorney General argues that the special notice accorded to third parties
under the Access Act is proof that a third party should be able to raise
only a s. 20(1) exemption in a s. 44 application. The right of review under s.
44 is triggered by a third party’s right to notice where confidential business
information is alleged to exist; therefore, the Attorney General asserts, the
scope of s. 44 should be limited to such information. He suggests that
Parliament’s failure to provide similar notice provisions where personal
information is involved indicates that the legislature did not intend that s.
19 should be available on a s. 44 application.
51
This argument is unconvincing. The unique notice given to third parties
is tied to the specific nature of the exemption. While a government
institution would not have any specific knowledge of the business or scientific
dealings of a third party, the subject matter of the other exemptions falls
generally within the expertise of government officials and/or the Privacy
Commissioner. These exemptions relate, for example, to information obtained in
confidence from a foreign state, federal‑provincial affairs,
international affairs, investigations and law enforcement, safety of
individuals, the economic interests of Canada, advice and recommendations to a
minister, testing procedures, solicitor‑client privilege, and statutory
prohibitions (see ss. 13 to 24 of the Access Act). Moreover,
information covered by these exemptions would likely implicate the public
interest in such a way that it would supersede any individual rights of access
to information. In the case of confidential business information, however, the
assistance of the third party is necessary for the government institution to
know how, or if, the third party treated the information as confidential.
Indeed, the third party’s information management practices may be an important
means of determining whether the information actually meets the definition of
“confidential”: Canadian Tobacco Manufacturers’ Council v. Minister of
National Revenue (2003), 239 F.T.R. 1, 2003 FC 1037, at para. 114; Air
Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, at
para. 37; Brookfield LePage Johnson Controls Facility Management
Services v. Canada (Minister of Public Works and Government Services),
[2003] F.C.J. No. 348 (QL), 2003 FCT 254, at para. 13. Whether the information
is confidential cannot be determined without representations from the third
party.
52
Moreover, in my view, the mandatory nature of s. 19 precludes the need
for a notice provision. Notice under the Access Act is a right intended
to enable a party to contest the release of information and is therefore
required only where the statute contemplates the possibility of making
information public, as is the case with confidential business information under
s. 20(1) . Section 19, however, provides that a government institution “shall
refuse to” disclose personal information. The three exceptions carved out of
this rule under s. 19(2) make it clear why a general notice provision is
unnecessary.
53
First, personal information may be disclosed if the individual consents
(s. 19(2)(a)). Clearly, if the individual consents, he or she will
not contest the disclosure of the information, and as a result no express
notice provision is necessary. A government institution can easily determine
whether the individual has in fact consented to the release of personal
information subject to s. 19.
54
Second, personal information may be disclosed where the government
institution determines that the requested information is already in the public
domain (s. 19(2)(b)). Again, in such circumstances, notice to the
individual to whom the information relates would serve no useful purpose — the
individual party cannot control access to information in the public domain and
so, presumably, has no grounds on which to contest disclosure.
55
Third, a government institution may disclose personal information in
exceptional circumstances in which the public interest in disclosure outweighs
an individual’s right to privacy (s. 19(2)(c) of the Access Act
and s. 8(2) (m) of the Privacy Act ). Should such circumstances
arise, Parliament has provided for the individual to be notified via the
Privacy Commissioner (s. 8(5) of the Privacy Act ). Where the government
exercises its discretion to disclose personal information on the basis of
public interest, the Privacy Commissioner must be informed prior to the
disclosure, where practicable, and may notify the individual involved.
56
In my view, therefore, the right to notice accorded to third parties
follows logically from the specific nature of the confidential business
information exemption and does not limit the right of review provided for in s.
44.
6.3 The Creation of “Two Levels” of Third
Parties
57
The Attorney General further submits that allowing third parties to
raise, on a s. 44 review, exemptions other than those provided for in s. 20(1)
will result in the creation of two categories of third parties: those who
receive notice under s. 20(1) and those who do not. If the possible
application of s. 20(1) by the government institution had not occurred, the
Attorney General argues, Heinz would not have received notice of the possible
disclosure of records and would not have been able to make submissions in
respect of the application of s. 19. To put it in more basic terms, why should
Heinz be afforded an opportunity to invoke s. 19 that is not available to other
parties who are not “third parties” under the Access Act?
58
This argument is, in my view, unsound. A basic premise of the Access
Act is that personal information will not be disclosed in violation of the
mandatory prohibition set out in s. 19. The access to information and privacy
scheme is founded on the assumption that government institutions will respect
the mandatory prohibition on disclosing personal information and that no notice
is therefore required for personal information relating to individuals. As I
have stated, in the specific circumstances in which the Access Act does
authorize the disclosure of personal information — where the information is
already publicly available, where the individual to whom the information
relates consents, or where there is an overriding public interest — a notice
provision is either superfluous or has in fact been provided for in the
legislative scheme (s. 8(5) of the Privacy Act ). Given this underlying
presumption that personal information will not be disclosed as well as the
paramount importance of individual privacy, it would therefore be absurd not
to allow third parties to use the mechanism provided for by the legislature to
prevent a violation of the spirit and the letter of the Access Act and
the Privacy Act . Allowing Heinz to raise the s. 19 exemption on a s. 44
review does not create a “second tier” of third parties, but allows the only
third party who has access to s. 44 to use this remedy to prevent harm from
occurring needlessly.
59
A third party’s right of review under s. 44 therefore provides an
appropriate avenue for scrutinizing government decisions to disclose
information that affects an individual’s right to privacy. Of course, the court
must be wary of attempts by third parties to avail themselves of the personal
information exemption to prevent the legitimate disclosure of information.
Such attempts to abuse the s. 19 exemption are easily uncovered, however, by
determining whether the records in question actually contain personal
information.
6.4 The “Discretionary” Nature of the
Section 19 Exemption
60
The Information Commissioner suggests that the personal information
exemption is more appropriately characterized as “discretionary” because the
government institution has the discretion to disclose personal information
where the violation of the right to privacy is clearly outweighed by the public
interest in disclosure (s. 19(2) of the Access Act, s. 8(2)(m) of
the Privacy Act ). The parties dispute this characterization of
s. 19 because, under the framework established by Layden-Stevenson J. at
trial, discretionary exemptions may not be raised in a s. 44 review proceeding.
61
Even if I accepted the dichotomy between discretionary and mandatory
exemptions, I would disagree with the Information Commissioner’s argument. The
narrow scope of the discretion provided for in s. 19(2) was not at issue in
this case and should not be viewed as undermining the mandatory character of s.
19(1), which clearly states that the government institution “shall
refuse to disclose any record requested under this Act that contains personal
information”. As this Court stated in Dagg, the personal information
exemption should not be given a “cramped interpretation” by giving access
pre-eminence over privacy: Dagg, at para. 51. Moreover, on the facts of
the instant case, there is no debate regarding the existence of a pressing
concern of public interest that would permit disclosure; both parties have
conceded that s. 19(1) is the only relevant exemption.
6.5 The Availability of Judicial Review
Under Section 18.1 of the Federal Courts Act
62
Finally, Heinz argues in the alternative that if the s. 44 review is
limited to confidential business information, it retains an “independent”
common law right of review that has been codified in s. 18.1(1) of the Federal
Courts Act , which allows a party directly affected by a decision of a
federal board, commission or tribunal to apply for judicial review. Having
found that an application for a review under s. 44 is available to
Heinz, I need not fully consider this argument. However, in my view, a
conclusion that would force a party to split its complaint into two parallel
proceedings is problematic. Such a scenario would become even more burdensome
if the personal information related to multiple individuals. For example, if
the requested records included personal information relating to a number of
consumers or past employees, the third party might not be in a position to
alert all the individuals concerned that their privacy rights were in danger of
being violated. Moreover, not only would multiple proceedings be an unwarranted
use of resources, but the applicable standard of review may not be the same in
a s. 44 proceeding as would be the case in the context of a s. 18.1(1)
application for judicial review. As I have suggested, however, I find that
Heinz need not seek this residual right of review, because s. 44 already
provides an adequate alternate remedy: Harelkin v. University of Regina,
[1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian Band,
[1995] 1 S.C.R. 3.
7. Conclusion
63
The importance of protecting personal information, combined with the
open language of ss. 28, 44(1) and 51 of the Access Act, leads to the
conclusion that a reviewing court can, on a s. 44 application, consider and
apply the privacy exemption set out in s. 19(1). Where it has come to the
attention of a third party that a government institution intends to disclose
information which will violate the statutorily mandated, quasi‑constitutional
privacy rights of an individual, the third party must have the right to raise
this concern upon judicial review. A contrary ruling would force individuals
to wait until the personal information has been disclosed and the (potentially
irreversible) harm done before looking to the Privacy Commissioner or the
courts for a remedy. While the Privacy Commissioner and the Information
Commissioner play a central role in the access to information and privacy
scheme and have extensive responsibilities, s. 44 provides the sole recourse in
situations where a third party seeks to prevent the disclosure of personal
information. A narrow interpretation of s. 44 would thus weaken the protection
of personal information and dilute the right to privacy.
64
For these reasons, I would dismiss the appeal with costs.
The reasons of McLachlin C.J. and Bastarache and LeBel JJ. were
delivered by
BASTARACHE J. (dissenting) —
1. Introduction
65
The issue on appeal is whether a third party can raise the exemption
from disclosure for personal information contained in s. 19 of the Access to
Information Act, R.S.C. 1985, c. A-1 (“Access Act ”), and ss. 3 and
8 of the Privacy Act, R.S.C. 1985, c. P-21 , during a review proceeding
initiated pursuant to s. 44 of the Access Act. This case brings to the
fore the delicate balance Parliament has struck between promoting rights of
access to records under government control, and protecting the personal
information of individuals appearing in those records.
66
Where a government institution receives a request under the Access
Act, and it concludes that the requested record may contain confidential
business information about a third party, it must provide notice to that third
party. The third party then has the right to make representations on the
record, and it is entitled to notice of the government institution’s decision
to disclose the record. A third party who has received such notice is subsequently
entitled to bring a s. 44 review of the matter. Where the court determines that
the government institution is required to refuse disclosure, then it shall
order that the institution not disclose the record.
67
As the facts of this case and the decisions below have been addressed in
the reasons of Deschamps J., I proceed directly to the statutory interpretation
of s. 44 of the Access Act. This Court has consistently held that
[t]oday there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act , the
object of the Act , and the intention of Parliament.
(Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para.
21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983),
at p. 87)
2. The Purpose of the Access Act
68
The Access Act must be read in light of the Privacy Act ,
which together form a coherent scheme governing the competing rights of access
and privacy. They are complementary and equal statutes whose provisions must be
construed harmoniously: Dagg v. Canada (Minister of Finance), [1997] 2
S.C.R. 403, at para. 51, per La Forest J., dissenting but not on this
point. Section 2(1) of the Access Act describes the purpose of the Act
as follows:
2. (1) The purpose of this Act is to
extend the present laws of Canada to provide a right of access to information
in records under the control of a government institution in accordance with the
principles that government information should be available to the public, that
necessary exceptions to the right of access should be limited and specific and
that decisions on the disclosure of government information should be reviewed
independently of government.
69
Access to information under government control is meant to facilitate
democracy. As La Forest J. explained in Dagg, at para. 61, “[i]t helps
to ensure first, that citizens have the information required to participate
meaningfully in the democratic process, and secondly, that politicians and
bureaucrats remain accountable to the citizenry.”
70
Nonetheless, the goal of access must be understood in the context of the
Act , which itself provides for a number of exemptions in ss. 13 to 24 and 26 .
According to s. 2 , these necessary exceptions to access should be limited and
specific. However, Gonthier J., speaking for a unanimous court in
Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian
Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8, explained that “[t]he
statement in s. 2 of the Access Act that exceptions to access should be
‘limited and specific’ does not create a presumption in favour of access”
(para. 21).
71
Personal information is specifically exempted from the general rule of
disclosure pursuant to s. 19 of the Access Act, subject to certain
exceptions which are not at issue on this appeal. Personal information is
defined in s. 19 of the Access Act by reference to s. 3 of the Privacy
Act , which illustrates the complementary relationship between both statutes
that I have described above. Section 3 defines “personal information” as
information about an identifiable individual that is recorded in any form, and
lists a number of examples. Parliament has thus struck a careful balance
between the right to access records within government control, and the right to
have all personal information in those records kept private. La Forest J. in Dagg,
went so far as to state that “[b]oth statutes recognize that, in so far as it
is encompassed by the definition of ‘personal information’ in s. 3 of the Privacy
Act , privacy is paramount over access” (para. 48).
72
Even accepting, however, that privacy is paramount over access, it does
not follow that Parliament is obliged to create a notice and review mechanism
prior to the disclosure of personal information. The policy decision of how to
balance rights of access and the right to privacy is one reserved for
Parliament. As the following analysis demonstrates, Parliament has entrusted
the promotion of access to government records and the protection of personal
information to two Commissioners who effectively act as ombudsmen. Their
offices are independent of government, and their role is to impartially
investigate complaints made against government institutions. In fact, the
structure of both the Access Act and the Privacy Act also
indicates that, apart from s. 44 review proceedings, Parliament has seen fit to
limit opportunities for judicial review until after the Information
Commissioner has conducted its investigation of the complaint.
3. The Role of the Federal Information and
Privacy Commissioners
3.1 Remedies Available Under the Access Act
and the Privacy Act
73
The privacy interests of third parties are protected by the Privacy
Act , in particular, by s. 29 which protects the personal information of
third parties by establishing a complaint and investigation procedure:
29. (1) Subject to this Act , the Privacy
Commissioner shall receive and investigate complaints
(a) from individuals who allege that personal information about
themselves held by a government institution has been used or disclosed
otherwise than in accordance with section 7 or 8 ;
.
. .
(h) in respect of any other matter relating to
.
. .
(ii) the use or disclosure of personal information under the control
of a government institution . . .
74
Under s. 29(2), nothing precludes the Privacy Commissioner from
receiving and investigating complaints submitted by a person authorized by the
complainant to act on behalf of him or her. It would therefore be open to Heinz
to initiate a complaint on behalf of its employees in order to protect their
personal information. The Privacy Commissioner has the power to investigate the
complaint and has broad powers under that process (ss. 31 to 34 of the Privacy
Act ), including the rights to summon and enforce the appearance of
witnesses, compel witnesses to give evidence or produce documents, and enter
premises of government institutions and inspect records found there (s. 34(1) ).
The Privacy Commissioner also has the authority to access any document (except
Cabinet confidences) under the control of a government institution, including
documents that would otherwise be protected by a legal privilege (s. 34(2) ).
Section 33 of the Privacy Act ensures that every investigation of a
complaint is conducted in private. Where the complaint is well‑founded,
the Privacy Commissioner reports his or her findings and recommendations to the
appropriate government institution (s. 35 ). The Privacy Commissioner does not,
however, have the power to order the release of information or compel the
institution to do anything or refrain from doing anything with respect to the
information. Pursuant to s. 37 , the Privacy Commissioner may also, from time to
time, at his discretion, carry out investigations in respect of personal
information under the control of government institutions to ensure compliance
with ss. 4 to 8 of the Privacy Act , which deal with the collection, retention,
disposal and protection of personal information.
75
I have already mentioned that the exemption from disclosure for personal
information is subject to a number of exceptions. Pursuant to s. 19(2)(c)
of the Access Act, the head of a government institution may disclose any
requested record that contains personal information if the disclosure is in
accordance with s. 8 of the Privacy Act . Section 8(2) (m)(i) of
the Privacy Act authorizes disclosure of personal information “for any
purpose where, in the opinion of the head of the institution, . . .
the public interest in disclosure clearly outweighs any invasion of privacy
that could result from the disclosure”. Where a government institution uses
this discretionary power to disclose personal information, s. 8(5) provides
that it shall notify the Privacy Commissioner in writing prior to the
disclosure where reasonably practicable. This results in an added measure of
protection for personal information that is to be disclosed in the public
interest, insofar as the Privacy Commissioner can intervene prior to the
disclosure.
76
It may also be open to the Information Commissioner to receive and
investigate a complaint brought by a third party resisting disclosure. The
Information Commissioner can receive and investigate complaints “in respect of
any other matter relating to requesting or obtaining access to records under
this Act ”, pursuant to s. 30(1)(f) of the Access Act. It is
unclear whether this might include complaints pertaining to the unlawful
disclosure of personal information. The Information Commissioner typically
receives complaints from information requesters, where disclosure of a
requested record has been refused, delayed or otherwise unsatisfactory. In any
event, the Office of the Privacy Commissioner would appear to be more suited to
the receipt and investigation of a complaint by a third party resisting
disclosure on the basis of the s. 19 exemption for personal information, since
it is charged with receiving and investigating all complaints brought pursuant
to the Privacy Act .
3.2 The Effect of Allowing the Section 19
Exemption to Be Raised on a Section 44 Review Proceeding on the Role of
the Commissioners
77
Generally, the Access Act requires an investigation by the
Information Commissioner prior to proceeding to a judicial determination of
whether the government institution can lawfully refuse disclosure. Section 44
proceedings constitute the sole exception to this scheme.
78
The Information Commissioner is authorized to receive and investigate
complaints under s. 30(1) of the Access Act, where disclosure of a
requested record has been refused, delayed or is otherwise unsatisfactory. The
information requester, the head of the government institution who has control
of the record, and, where the Commissioner believes that the record may contain
confidential business information, the third party, have participation rights
in that investigative process. As with investigations conducted by the Privacy
Commissioner, every investigation of a complaint by the Information
Commissioner is conducted in private (s. 35). Pursuant to s. 36(1) of the Access
Act, the Information Commissioner has the same broad investigatory powers
as the Privacy Commissioner, which I have listed above. Section 36(2) of the
Access Act provides the Information Commissioner with the right to examine
any record to which the Access Act applies that is under the control of
a government institution, regardless of privilege. Contrary to the Privacy
Act , s. 36(2) of the Access Act does not exclude Cabinet confidences
from this general right of access. Where the complaint is determined to be well‑founded,
the Information Commissioner can report his findings and recommendations to the
head of the government institution that has refused disclosure (s. 37(1) ), and
must also notify any party who received notice of the investigation and opted
to participate (s. 37(2) ).
79
Where an information requester has been denied access to a record, s. 41
of the Access Act provides a right of review. However, this right is
only available where a complaint was initially made to the Information
Commissioner, and where the information requester has received notice of the
results of the investigation. In other words, the Access Act ensures
that the Information Commissioner, as opposed to the courts, is entrusted with
the initial review of the complaint. Where the government institution refuses
disclosure following the Information Commissioner’s investigation and
recommendation, it is also open to the Commissioner to bring an application for
review so long as he has the consent of the information requester (s. 42(1)(a)
of the Access Act).
80
Section 44 proceedings constitute the sole exception in this statutory
scheme. A third party who has received notice that the government institution
intends to disclose the record can apply directly to the court for a s. 44
review of the matter. Where the court determines that the head of a government
institution is required to refuse to disclose a record or part of a record, the
court shall order the head of the institution not to disclose the record (s. 51
of the Access Act). The information requester is given notice of the
hearing and is entitled to appear as a party (s. 44(3) of the Access Act).
The Information Commissioner, however, is only entitled to appear as a party
with leave of the court (s. 42(1)(c) of the Access Act).
Where a s. 44 proceeding results in an order not to disclose the record, the
court order effectively precludes any investigation by the Information
Commissioner. If a third party was also entitled to raise the s. 19 exemption
for personal information at a s. 44 review proceeding, the role of the
Information Commissioner would be further compromised.
3.3 The Broader Role of the Information and
Privacy Commissioners
81
The function of the Information and Privacy Commissioners is described
as akin to that of an ombudsman. Speaking of the Privacy Commissioner and of
the Commissioner of Official Languages, this Court stated in Lavigne v.
Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R.
773, 2002 SCC 53, at para. 37, that:
In many significant respects, the mandates of the
Commissioner of Official Languages and the Privacy Commissioner are in the
nature of an ombudsman’s role (see M. A. Marshall and L. C. Reif, “The
Ombudsman: Maladministration and Alternative Dispute Resolution” (1995), 34 Alta.
L. Rev. 215):
– They are independent of the government’s
administrative institutions and hold office during good behaviour for a
specified period. They receive the same salary as a judge of the Federal Court.
This independence is reinforced by the fact that they may not, as a rule, be
compelled to testify, and no civil or criminal proceedings lie against them for
anything done in the performance of their duties;
– They examine complaints made by individuals
against the government’s administrative institutions, and conduct impartial
investigations;
– They attempt to secure appropriate redress when
the individual’s complaint is based on non‑judicial grounds;
– They attempt to improve the level of compliance
by government institutions with the Privacy Act and the Official
Languages Act;
– As a rule, they may not disclose information they receive.
82
Both the Privacy Commissioner and the Information Commissioner hold
office during good behaviour for a set term of seven years, though they may be
removed by the Governor in Council at any time on address of the Senate and
House of Commons: s. 53(2) of the Privacy Act and s. 54(2) of the Access
Act. Both Commissioners are paid a salary equal to that of a Federal Court
judge: s. 55(2) of the Access Act and s. 54(2) of the Privacy Act .
No criminal or civil proceedings lie against them for anything done in the
performance of their duties: s. 66(1) of the Access Act and s. 67(1) of
the Privacy Act . Both Commissioners are authorized to receive and
investigate complaints, and to secure appropriate redress via non-binding
recommendations to the particular government institution. Both Commissioners
may only disclose information they receive in the course of their investigation
in the narrow circumstances set out in the statutes: see ss. 63 and 64 of the Access
Act, as well as ss. 64 and 65 of the Privacy Act . I would also note
that their independent function is underlined in the purpose section of the Access
Act, which provides that the disclosure of government information should be
reviewed independently of government (s. 2(1) ).
83
The approach followed by the Commissioners in investigating complaints
and making recommendations, where warranted, is understood to be less formal
than the judicial process. The Commissioners’ purpose is to resolve disputes in
an informal manner, and their offices were specifically created to address the
limitations of the legal proceedings in this respect: see Lavigne, at
para. 38. At para. 39, the Court went on to explain that:
An ombudsman is not counsel for the complainant.
His or her duty is to examine both sides of the dispute, assess the harm that
has been done and recommend ways of remedying it. The ombudsman’s preferred
methods are discussion and settlement by mutual agreement. As Dickson J. wrote
in British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447,
the office of ombudsman and the grievance resolution procedure, which are
neither legal nor political in a strict sense, are of Swedish origin, circa
1809. He described their genesis (at pp. 458‑59):
As originally conceived, the Swedish Ombudsman was
to be the Parliament’s overseer of the administration, but over time the
character of the institution gradually changed. Eventually, the Ombudsman’s
main function came to be the investigation of complaints of maladministration
on behalf of aggrieved citizens and the recommendation of corrective action to
the governmental official or department involved.
The institution of Ombudsman has grown since its
creation. It has been adopted in many jurisdictions around the world in
response to what R. Gregory and P. Hutchesson in The Parliamentary Ombudsman
(1975) refer to, at p. 15, as “one of the dilemmas of our times” namely,
that “(i)n the modern state . . . democratic action is possible only through
the instrumentality of bureaucratic organization; yet bureaucratic — if it is not
properly controlled — is itself destructive of democracy and its values”.
The factors which have led to the rise of the
institution of Ombudsman are well‑known. Within the last generation or
two the size and complexity of government has increased immeasurably, in both
qualitative and quantitative terms. Since the emergence of the modern welfare
state the intrusion of government into the lives and livelihood of individuals
has increased exponentially. Government now provides services and benefits, intervenes
actively in the marketplace, and engages in proprietary functions that fifty
years ago would have been unthinkable.
84
Former Justice La Forest, in a recent report entitled The Offices of
the Information and Privacy Commissioners: The Merger and Related Issues,
Report of the Special Advisor to the Minister of Justice (November 15, 2005)
(“La Forest report”), at p. 15, explains that the primary duty of both the
Information and Privacy Commissioners to independently and impartially
investigate complaints and make recommendations is in keeping with this
ombudsman function.
85
La Forest notes that the Commissioners exercise a number of other
important functions:
The Privacy Commissioner, for instance, is empowered to audit
government institutions to ensure that they are complying with their
obligations under the Act , recommend changes to effect compliance, and report
failures to comply to the institution and Parliament. The Privacy Commissioner
may also assess whether a government institution’s decision to designate a data
bank as exempt from disclosure was correct, and ask the Federal Court to rule
on the question if the government institution fails to accept the
Commissioner’s determination that it was not. Both commissioners must also
submit annual reports to Parliament and may in addition submit special reports
with respect to urgent matters. [Footnotes omitted; pp. 16‑17.]
86
The Privacy Commissioner has inherited additional responsibilities with
the enactment of Part 1 of the Personal Information Protection and
Electronic Documents Act, S.C. 2000, c. 5 . Moreover, the Commissioners are
also active in promoting the values of access and privacy in a variety of
national and international fora. The “Commissioners have commented on proposed
legislation and government policies, appeared before parliamentary committees,
conducted surveys, sponsored research, published summaries of findings, and
given public lectures”: see La Forest report, at p. 18.
87
This has led some commentators to conclude that the Privacy Commissioner
is “expected at some point to perform seven interrelated roles: ombudsman,
auditor, consultant, educator, policy advisor, negotiator and enforcer”: C. J.
Bennett, “The privacy commissioner of Canada: Multiple roles, diverse
expectations and structural dilemmas” (2003), 46 Canadian Public
Administration 218, at p. 237, cited in La Forest report, at p. 18. Many of
these roles are also performed by the Information Commissioner: La Forest
report, at p. 18.
4. The Legislative Scheme Surrounding
Section 44 of the Access Act
4.1 The Statutory Context
88
This Court has held that statutory interpretation cannot be founded on
the wording of the legislation alone: Rizzo & Rizzo Shoes, at para.
21. As the previous analysis demonstrates, s. 44 review proceedings are part of
a complex statutory code. Heinz initially became aware of the access request
that formed the basis of the s. 44 review via s. 27(1) of the Access Act,
which provides:
27. (1) Where the head of a government
institution intends to disclose any record requested under this Act , or any
part thereof, that contains or that the head of the institution has reason to
believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1) (b) that
was supplied by a third party, or
(c) information the disclosure of which the head of the
institution could reasonably foresee might effect a result described in
paragraph 20(1) (c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the
third party can reasonably be located, within thirty days after the request is
received, give written notice to the third party of the request and of the fact
that the head of the institution intends to disclose the record or part
thereof.
Section 27(1)
is a notice provision for third parties where there has been an access request
for a record containing information listed in (a) to (c). Those
subsections refer directly to the exemption from disclosure contained in s.
20(1) of the Access Act:
20. (1) Subject to this section, the head of
a government institution shall refuse to disclose any record requested under
this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information
that is confidential information supplied to a government institution by a
third party and is treated consistently in a confidential manner by the third
party;
(c) information the disclosure of which could reasonably be
expected to result in material financial loss or gain to, or could reasonably
be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be
expected to interfere with contractual or other negotiations of a third party.
89
For ease of reference, I refer to information exempted from disclosure
pursuant to s. 20 as confidential business information. Where a third party has
received notice pursuant to s. 27(1) because of the believed presence of
confidential business information in the requested record, s. 28(1)(a)
provides the third party with an opportunity to make representations to the
head of the government institution as to why the record should not be
disclosed. Pursuant to s. 28(1)(b), the third party is then entitled to
notice of the government institution’s decision as to whether or not to
disclose the record. A third party who receives notice pursuant to s. 28(1)(b)
of the government institution’s decision to disclose the record has a right to
apply for a review pursuant to s. 44:
44. (1) Any third party to whom the head of a
government institution is required under paragraph 28(1)(b) or
subsection 29(1) to give a notice of a decision to disclose a record or a part
thereof under this Act may, within twenty days after the notice is given, apply
to the Court for a review of the matter.
90
Section 29(1) is not at issue in this appeal. It deals with the slightly
different situation of a government institution initially refusing disclosure,
and then opting to follow the recommendation of the Information Commissioner to
disclose the requested record. Pursuant to s. 29(1) , notice must be given to
the third party who initially received notice, or would have received notice,
under s. 27(1) because of the believed presence of confidential business
information in the record.
91
Pursuant to s. 51 of the Access Act, where the court determines,
after considering an application under s. 44, that the head of a government
institution is required to refuse to disclose a record, the court shall order
the head of the institution not to disclose the record or shall make such other
order as the court deems appropriate.
92
Deschamps J. relies on the broad wording of s. 44 and its related
sections in order to conclude that a third party who has received notice
pursuant to s. 28(1)(b) of the Access Act can raise the s. 19
exemption from disclosure for personal information on a s. 44 review. She
relies, in particular, on the following:
·
Section 28(1)(b) allows the third party to make representations
as to why the record should not be disclosed. There is no language in that
section that limits the range of representations that can be made.
· Similarly, the language of s.
28(1)(b) suggests that representations can be made as to why the record
should not be disclosed, as opposed to explicitly limiting the right to make
representations to that part of the record that contains confidential business
information.
· Section 44 allows for a review
of the matter, without expressly limiting the scope of what is reviewable.
· Finally, s. 51 states that the
court shall make an order where it determines that the head of a government
institution is required to refuse to disclose the record. In determining
whether the government institution is required to refuse disclosure, s. 51 does
not explicitly limit the court’s consideration to the s. 20 exemption from
disclosure for confidential business information.
93
The court is obliged to consider the total context of the provisions to
be interpreted, no matter how plain the disposition may seem upon initial
reading: Chieu v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 84, 2002 SCC 3, at para. 34; ATCO Gas and Pipelines Ltd. v.
Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4, at
para. 48; R. Sullivan, Sullivan and Driedger on the Construction of Statutes
(4th ed. 2002), at pp. 20‑21. Some of the legislative provisions at issue
are broadly worded. The intended meaning of open‑ended expressions such
as “representations”, “record”, and “matter” is lost when they are read in
isolation: see ATCO, at para. 46.
94
Within its proper statutory context, the intended meaning of
“representations”, “record”, and “matter” becomes clear. The right to bring a
s. 44 review flows from the notice a third party receives because of the
believed presence of confidential business information in the requested record.
The parties, and indeed Deschamps J., concede that notice is only required
where s. 20 is possibly applicable because of the very nature of that
exemption. Only the third party itself can clearly state whether or not the
grounds listed in s. 20 apply to the information requested. This is because,
considering the criteria listed in s. 20, only the third party can establish
what information it treated or treats as confidential, as well as the effect of
disclosure on its revenue or on its competitive position.
95
Deschamps J. includes in her reasons for judgment a brief analysis of
the legislative history of ss. 27 and 28 of the Access Act, the notice
provisions ultimately resulting in a right to bring an application for a s. 44
review. I do not find this legislative history to be particularly helpful in
determining the proper scope of a s. 44 review. The legislative context, by
contrast, provides considerable insight into the legislative intent behind the
review process.
96
The complaint and investigation process that I have outlined above
constitutes the mechanism Parliament has selected in order to balance access
rights with the need to protect individuals’ personal information. Where the
personal information of individuals is improperly disclosed, those individuals
can bring a complaint to the Privacy Commissioner under s. 29 of the Privacy
Act . There is no notice provision prior to the disclosure of a requested
record that might contain exempted personal information, nor does the unlawful
disclosure of exempted personal information give rise to a right of judicial
review under the Access Act or the Privacy Act . Indeed, ss. 27,
28 and 44 of the Access Act constitute the only available notice and
review mechanisms under the statutory scheme meant to permit resistance to
disclosure of a requested record.
97
Considered in its proper statutory context, s. 44 has nothing to do with
the s. 19 exemption from disclosure for personal information. The right to
bring a s. 44 application arises from the believed presence of confidential
business information in the requested record. The structure of the Access
Act and of the Privacy Act suggests that Parliament intended that
the protection of personal information be assured exclusively by the Office of
the Privacy Commissioner. Equally important is Parliament’s desire to have all
judicial reviews under the Acts preceded by an impartial investigation
conducted by the Information Commissioner. The only exception provided in the
statutory scheme is where confidential business information potentially appears
in the requested record.
4.2 To Allow the Section 19 Exemption to Be
Raised on a Section 44 Proceeding Would Lead to Absurd Results
98
It is presumed that the legislature does not intend its legislation to
result in absurd consequences: see Sullivan, at p. 236. The only available
notice and review mechanisms to resist disclosure is that provided in ss. 27,
28 and 44 of the Access Act. The Act does not require notice to a third
party prior to disclosure of information relating to that party except in the
circumstances set out in s. 28(1). Where the head of a government institution
concludes that the information requested is not confidential business
information, notice to the third party is not required, will not be ordered by
the court and no right to apply for review under s. 44(1) arises.
99
Unless the opportunity to raise exemptions at a s. 44 review proceeding
is limited to that contained in s. 20, third parties who have received notice
pursuant to s. 28(1)(b) will be afforded an opportunity to raise the s.
19 exemption for personal information in circumstances where no comparable
right exists for a third party claiming only that the record contains personal
information belonging to it.
100
The only reason Heinz is able to raise the s. 19 exemption in the
present appeal is the possible application of s. 20 and the notice received
pursuant to ss. 27 and 28 . Were it not for the possible application of s.
20, there would be no possibility of bringing a s. 44 review. The effect of the
proposed extension of the s. 44 review would be to create two categories of
third parties: those who receive notice under ss. 27 to 29 of the Access Act
and those who do not. In other words, the distinction would be between
third parties who have relevant confidential business information and those who
do not. Such a result is absurd insofar as it allows greater protection of
certain individuals’ personal information, depending on the possible
application of s. 20. Individuals with relevant confidential business
information would thus benefit from a greater protection for their personal
information than individuals without such information. There is no basis for
such a two‑tiered system in either the Access Act or the Privacy
Act .
101
Deschamps J.’s proposed interpretation of s. 44 leads to a second absurd
consequence. It is unlikely that Heinz itself possesses personal information
within the meaning of s. 3 of the Privacy Act . Section 3 includes a non‑exhaustive
list of information which is considered personal information. Elements of this
list reinforce the conclusion that only human beings can constitute
identifiable individuals, because only human beings have a race; colour;
religion; age; marital status; education; medical, criminal or employment
history; fingerprints; and blood type. Heinz is raising s. 19 in the present
case in order to protect the personal information of several of its employees.
While both the Access Act and the Privacy Act expressly allow an
authorized agent to bring complaints to the Information Commissioner or to the
Privacy Commissioner, respectively, s. 44 does not so provide.
102
The right to apply for a review under s. 44 belongs to the third party
who has received notice of the decision not to disclose the record — in this
case, Heinz. The employees of Heinz whose personal information is implicated do
not have the right to apply for a s. 44 review. In other words, the
interpretation proposed by Deschamps J. has the effect of allowing Heinz to
object to the intended disclosure because of the presence of personal
information belonging to its employees, in circumstances where the affected
employees themselves have no right whatsoever to bring an application for
review under the Act . It cannot be the intention of Parliament, in my view,
that Heinz can raise s. 19 on behalf of its employees in circumstances where
its employees have no right under the Access Act or the Privacy Act
to raise the objection on their own behalf at a judicial hearing.
5. Conclusion on the Proper Interpretation
of Section 44 of the Access Act
103
Parliament has entrusted the monitoring of government compliance with
the Access Act and the Privacy Act to the Office of the
Information Commissioner and the Office of the Privacy Commissioner. The role
of these offices is akin to that of an ombudsman and is indicative of a policy
decision to adopt a non‑litigious dispute resolution mechanism in the
context of complaints arising from individuals seeking access to government
information or from third parties seeking to protect their personal
information. The current scheme creates a more accessible review process of the
decision of a government institution to disclose or not to disclose a requested
record.
104
This accessible, informal and non-litigious complaint resolution process
results in the Commissioners making non-binding recommendations to the
government institution that is the subject of the complaint. The consequence of
such a policy decision is, as Deschamps J. has noted, that the role of the Commissioners
is necessarily limited by their inability to issue injunctive relief or to
prohibit a government institution from disclosing information. Pending the
receipt of their recommendations, or even upon receipt of a recommendation not
to disclose the record, there is nothing to prevent the government institution
from proceeding with disclosure. In fact, the government institution is
required by s. 7 of the Access Act to provide notice to the information
requester of its decision to disclose or to refuse disclosure within 30 days
following receipt of the request. If the government institution opts to
disclose the record, then access must be provided to the requester within that
same time frame. The government institution can however extend that time limit
pursuant to s. 9(1) of the Access Act, if:
9. (1) . . .
(a) the request is for a large number of records or
necessitates a search through a large number of records and meeting the
original time limit would unreasonably interfere with the operations of the
government institution,
(b) consultations are necessary to comply with the
request that cannot reasonably be completed within the original time limit, or
(c) notice of the request is given pursuant to subsection
27(1)
.
. .
In all such
cases, the requester must be notified of the extension and of his or her right
to complain to the Information Commissioner about the delay. Where the head of
a government institution extends a time limit for more than 30 days, notice of
the extension must also be given to the Information Commissioner according to
s. 9(2).
105
The Commissioners do not have the decision-making or remedial capacity
to prevent the unlawful disclosure of a requested record. Moreover, apart from
a s. 44 proceeding, judicial review under the Privacy Act and under the Access
Act is limited to cases where the government institution has refused to
disclose the requested information. Partly for these reasons, Deschamps J.
expresses concern that a narrow interpretation of s. 44 would weaken the
protection of personal information. The La Forest report mentions that a number
of provinces, including Quebec, Ontario, British Columbia, Alberta and Prince
Edward Island, have given the provincial Commissioners the power to issue final
decisions settling disputes about complaints, subject to judicial review: see
p. 50. This reflects a different policy decision than that taken by Parliament.
La Forest explains, however, that
Commissioners in most of these provinces use this power sparingly,
preferring whenever possible to resolve complaints through conciliation,
mediation, and other informal means. They nonetheless consider the existence of
this power, which provides a strong incentive to the parties to settle on
reasonable terms, to be essential to their effectiveness. [Footnote omitted;
p. 50.]
La Forest
concludes that the option of granting such powers to the federal Information
and Privacy Commissioners is worthy of further study: see p. 52. The decision
of whether or not to extend such powers to the Commissioners is a complicated
one that must balance the protection of personal information with the need for
an accessible, informal and expeditious complaints resolution system in order
to promote access to information. It is quite clearly a decision best left to
Parliament.
106
In interpreting s. 44 of the Access Act, it is necessary to
preserve the integrity of the mechanism Parliament has selected in order to
balance the competing rights of access and privacy. Where personal information
has been unlawfully disclosed, that mechanism consists of the complaint and investigation
process provided by s. 29 of the Privacy Act , and of the additional
protection provided by s. 8(5) of the Privacy Act , where a government
institution intends to disclose personal information on the basis that the
public interest in disclosure outweighs any invasion of privacy. This process
is nothing more than the expression of a governmental policy decision
reflecting its own evaluation of the advantages and disadvantages of various
options, in terms of principles and operational requirements. Its integrity
must be respected in order to give effect to legislative intent.
107
As previously mentioned, Deschamps J. expresses concern in her reasons
about what she views as the lack of protection in the Acts for individuals’
personal information. However, her interpretation of s. 44 of the Access Act
only provides a right of review to resist disclosure on the basis of s. 19
in the limited circumstances where confidential business information
potentially appears in the requested record. This results in inequities, as
mentioned earlier. Moreover, as is the case here, that right of review may not
even belong to the individuals whose personal information actually appears in
the requested record. In the present case, only Heinz has the right to apply
for a review, notwithstanding that the personal information contained in the
record actually belongs to its employees.
108
Deschamps J.’s interpretation of s. 44 does not result in better or
fairer protection for individuals’ personal information. Cases such as these
will be limited in number. The large majority of individuals whose personal
information is vulnerable will not benefit. Moreover, although I have concluded
that a third party cannot raise the s. 19 exemption for personal information on
a s. 44 review, I do not exclude the possibility of judicial review pursuant to
the Federal Courts Act, R.S.C. 1985, c. F-7 . Indeed, where the
government institution acts without or beyond its jurisdiction, it remains open
to a party directly affected by the decision to bring an application for
judicial review pursuant to s. 18.1 of the Federal Courts Act .
6. The Possibility of Bringing a Judicial
Review Application Pursuant to the Federal Courts Act
6.1 Whether Judicial Review Is Available
Under the Federal Courts Act
109
Once a third party has received notice of the government institution’s
intended decision to disclose a record that may contain personal information,
it may consider bringing an application for judicial review under the Federal
Courts Act . Section 18.1(1) and 18.1(2) of that Act provides:
18.1 (1) An application for judicial
review may be made by the Attorney General of Canada or by anyone directly
affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of
a decision or an order of a federal board, commission or other tribunal shall
be made within 30 days after the time the decision or order was first
communicated by the federal board, commission or other tribunal to the office
of the Deputy Attorney General of Canada or to the party directly affected by
it, or within any further time that a judge of the Federal Court may fix or
allow before or after the end of those 30 days.
110
“Federal board, commission or other tribunal” is very broadly defined in
s. 2(1) of the Federal Courts Act , and means
any body, person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act of Parliament or
by or under an order made pursuant to a prerogative of the Crown, other than
the Tax Court of Canada or any of its judges, any such body constituted or
established by or under a law of a province or any such person or persons
appointed under or in accordance with a law of a province or under section 96
of the Constitution Act, 1867 ;
111
Pursuant to ss. 4, 7, and 10 of the Access Act, the government
institution is under a duty to disclose all requested information that does not
fall within one of the statutory exemptions listed in ss. 13 to 24 and 26 of
that Act . The government institution thus exercises powers conferred by an Act
of Parliament and falls within the meaning of “federal board, commission or
other tribunal”. Pursuant to s. 28(1)(b) of the Access Act, the
government institution must provide notice to the third party whose
confidential business information was initially believed to appear in the
requested record of its decision concerning the disclosure of the record. That
decision constitutes a decision of a federal board, commission or other
tribunal within the meaning of the Federal Courts Act and is potentially
reviewable. This is consistent with what Le Dain J. stated on behalf of a
unanimous Court in R. v. Miller, [1985] 2 S.C.R. 613, at pp. 623-24:
It is, of course, clear since the decision of this
Court in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1
S.C.R. 602, that certiorari is not confined to decisions required to be
made on a judicial or quasi‑judicial basis, but that it applies, in the
words of Dickson J., as he then was, at pp. 622‑23, “wherever a public
body has power to decide any matter affecting the rights, interests, property,
privileges, or liberties of any person.”
112
Section 19 of the Access Act constitutes a mandatory exemption
from disclosure for all personal information that does not fall into one of the
stated exceptions. Although s. 8(2)(m)(i) of the Privacy Act allows
the government institution to disclose personal information where it is deemed
necessary in the public interest, that provision has not been invoked in the
present case. As such, any decision to disclose a record containing information
falling within s. 19 of the Access Act is clearly not authorized by the
statute. Such a decision would be ultra vires, and would constitute a
jurisdictional error pursuant to s. 18.1(4) (a) of the Federal Courts
Act , which provides that:
18.1 . . .
(4) The Federal Court may grant relief under
subsection (3) if it is satisfied that the federal board, commission or other
tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or
refused to exercise its jurisdiction;
113
As a result, it would be open to the third party to seek an order
prohibiting the government institution from disclosing the record containing
personal information (s. 18.1(3)(b)).
114
I have thus concluded that the decision of the government institution to
disclose the requested record is reviewable for jurisdictional error, and that
the remedy of prohibition is available under the Federal Courts Act .
Section 18.5 provides an exception to s. 18.1 , where a right of appeal is
available from the decision of the federal board, commission or other tribunal.
Such is not the case here.
115
Nonetheless, a judge, on judicial review, may exercise his or her
discretion so as to refuse to grant a remedy where an adequate alternative
remedy exists. Dickson C.J. explained in Canada (Auditor General) v. Canada
(Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at p. 96,
that:
It may well be that once the alternative remedy is found to be adequate
discretionary relief is barred, but this is nothing but a reflection of a judicial
concern to exercise discretion in a consistent and principled manner. Inquiring
into the adequacy of the alternative remedy is at one and the same time an
inquiry into whether discretion to grant the judicial review remedy should be
exercised. It is for the courts to isolate and balance the factors which are
relevant to the inquiry into adequacy.
(Cited in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1
S.C.R. 3, at para. 36.)
In determining
whether to require the applicant to utilize a statutory appeal procedure
provided in the legislation, the Court in Canadian Pacific, at para. 37,
identified the following factors as relevant: “the convenience of the
alternative remedy, the nature of the error, and the nature of the appellate
body (i.e., its investigatory, decision‑making and remedial capacities)”.
The Court noted, however, that this list was not closed.
116
The complaint process in the Privacy Act is convenient and
accessible, and the expertise and investigatory role of the Privacy
Commissioner are relevant considerations. The structure of the Act establishes
clearly that the protection of privacy is meant to be the domain of the Privacy
Commissioner who can receive complaints, investigate, and report its findings
and recommendations to the relevant government institution. The scheme and
purpose of the Act can be relevant considerations for a judge in determining
whether or not to grant a remedy on judicial review: Canadian Pacific,
at paras. 43‑46. Ultimately, however, the Privacy Commissioner has no
decision‑making or remedial capacity. I have already concluded that s. 44
of the Access Act does not allow a third party to raise the s. 19
exemption for personal information. I also agree with the parties and with
Deschamps J. that the Access Act provides no other avenue to prevent a
government institution from disclosing a requested record.
117
In the context of an application pursuant to s. 18 of the Federal
Courts Act , I would conclude that the statutory scheme does not provide
Heinz with an adequate alternative remedy. According to s. 29(1) (a) of
the Privacy Act , the complaint process is generally initiated after an
individual’s personal information has been “used or disclosed” contrary to the Privacy
Act . Thus, the purported adequate alternative remedy may not even be
available prior to the actual disclosure. Moreover, the remedy sought by Heinz
in this case, that the information not be disclosed, is simply not available
pursuant to the existing scheme. The Attorney General asks this Court to
substitute judicial review prior to disclosure with an administrative
investigation following disclosure and resulting in non‑binding
recommendations. In Bristol-Myers Squibb Co. v. Canada (Attorney General),
[2005] 1 S.C.R. 533, 2005 SCC 26, at para. 83, I found, in dissent, that “an
application for judicial review was the sole procedural means available to [the
appellant] in order to quash the Minister’s decision”. The special statutory
regime created by the Patented Medicines (Notice of Compliance) Regulations,
SOR/93‑133, did not provide for the quashing of a notice of compliance,
although it did provide for an order of prohibition pursuant to a statutory
right of action. However, that cause of action was not open to the appellant in
that case. Thus, the appellant was without a remedy. The same reasoning applies
here.
118
Ultimately, the discretion to grant or refuse a remedy pursuant to ss.
18 and 18.1 of the Federal Courts Act rests with the Federal Court judge
hearing the judicial review application. That judge will only decline to
exercise his jurisdiction pursuant to the Federal Courts Act if he or
she is satisfied that the statutory scheme provides an adequate alternative
remedy. In a case similar to this, where the third party is attempting to
protect personal information belonging to its employees, the judge would also
have to decide whether the third party has standing to bring the application.
This is because, according to s. 18.1 , an application for judicial review may
be brought by anyone “directly affected” by the matter in respect of which
relief is sought.
6.2 Whether This Review Should Simply Be
Allowed to Proceed Under Section 44 of the Access Act for Reasons of Efficiency
and Convenience
119
Deschamps J. expresses concern that forcing a party to split its
complaint into two parallel proceedings might be an unwarranted use of
resources. That concern is best left to Parliament to address, if it so
chooses. Given the structure of the statutory scheme, I have concluded that a
third party cannot raise a s. 19 exemption on a s. 44 review. I further
conclude that there are valid reasons for refusing to collapse a s. 18.1 review
within a s. 44 review.
120
There are critical differences between a s. 44 review and a s. 18.1
judicial review. Firstly, the Federal Court has held that a s. 44 review is a
hearing de novo, whereas a s. 18.1 review requires the use of the
pragmatic and functional approach to determine whether deference is owed to the
decision of the government institution to disclose the record: Aliments
Prince Foods Inc. v. Canada (Ministre de l'Agriculture et Agroalimentaire) (2001),
272 N.R. 184 (F.C.A.), at para. 7. Secondly, s. 44 grants a right of review to
third parties who have received notice under s. 28(1)(b) or s. 29(1) of
the Access Act. No other requirement exists. By contrast, s. 18.1 of the
Federal Courts Act requires that the applicant have standing to bring
the application for review. Finally, where the court, on a s. 44 review,
determines that the government institution is required to refuse disclosure, s.
51 of the Access Act states that the court shall order the head of the
institution not to disclose the record or to make such other order as the court
deems appropriate. The remedies available under s. 18(3) of the Federal
Courts Act are somewhat different. Most importantly, they are discretionary
in nature.
121
I would also note that there is nothing to prevent a Federal Court judge
from proceeding with both applications at the same time or consecutively,
thereby addressing Deschamps J.’s concerns about unwarranted use of resources.
7. Conclusion
122
Only those third parties who are given notice pursuant to s. 28(1)(b)
or s. 29(1) of the Access Act of the government institution’s decision
to disclose the record will be in a position to seek a judicial review
prohibiting the disclosure. This is because only such parties will usually have
notice of the decision prior to disclosure. Presumably, judicial review will be
of limited use to a third party after the record has been disclosed insofar as
the damage to privacy will already have occurred. In such situations, the third
party retains the option of laying a complaint with the Privacy Commissioner,
as discussed above, who can report his findings and recommendations to the
institution where warranted.
123
This inequality is a necessary result of the statutory scheme, which
only provides notice prior to the actual disclosure in the circumstances
outlined in ss. 27, 28 and 29 of the Access Act. In interpreting s. 44
of the Access Act, I concluded that it was necessary to respect the
integrity of the complaint and investigation process contained in s. 29 of the Privacy
Act , in order to give effect to legislative intent. Nonetheless, without
providing an adequate alternative remedy, and without any privative clause
whatsoever, the Access Act cannot oust the possibility of judicial
review pursuant to the Federal Courts Act .
124
For these reasons, I would allow the appeal, set aside the decision of
the Federal Court of Appeal, and award costs in all courts to the appellant.
APPENDIX
Relevant
Statutory Provisions
Access to
Information Act, R.S.C. 1985, c. A-1
2. (1) The purpose of this Act is to extend
the present laws of Canada to provide a right of access to information in
records under the control of a government institution in accordance with the
principles that government information should be available to the public, that
necessary exceptions to the right of access should be limited and specific and
that decisions on the disclosure of government information should be reviewed
independently of government.
.
. .
3. In this Act ,
.
. .
“third party”, in respect of a request for access
to a record under this Act , means any person, group of persons or organization
other than the person that made the request or a government institution.
.
. .
19. (1) Subject to subsection (2), the head
of a government institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in section 3 of the Privacy
Act .
(2) The head of a government institution may disclose
any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the
disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy
Act .
20. (1) Subject to this section, the head of
a government institution shall refuse to disclose any record requested under
this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information
that is confidential information supplied to a government institution by a
third party and is treated consistently in a confidential manner by the third
party;
(c) information the disclosure of which could reasonably be
expected to result in material financial loss or gain to, or could reasonably
be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be
expected to interfere with contractual or other negotiations of a third party.
(2) The head of a government institution shall
not, pursuant to subsection (1), refuse to disclose a part of a record if that
part contains the results of product or environmental testing carried out by or
on behalf of a government institution unless the testing was done as a service
to a person, a group of persons or an organization other than a government
institution and for a fee.
(3) Where the head of a government institution
discloses a record requested under this Act , or a part thereof, that contains
the results of product or environmental testing, the head of the institution
shall at the same time as the record or part thereof is disclosed provide the
person who requested the record with a written explanation of the methods used
in conducting the tests.
(4) For the purposes of this section, the results
of product or environmental testing do not include the results of preliminary
testing conducted for the purpose of developing methods of testing.
(5) The head of a government institution may
disclose any record that contains information described in subsection (1) with
the consent of the third party to whom the information relates.
(6) The head of a government institution may
disclose any record requested under this Act , or any part thereof, that
contains information described in paragraph (1)(b), (c) or (d)
if that disclosure would be in the public interest as it relates to public
health, public safety or protection of the environment and, if the public interest
in disclosure clearly outweighs in importance any financial loss or gain to,
prejudice to the competitive position of or interference with contractual or
other negotiations of a third party.
.
. .
27. (1) Where the head of a government
institution intends to disclose any record requested under this Act , or any
part thereof, that contains or that the head of the institution has reason to
believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1) (b) that
was supplied by a third party, or
(c) information the disclosure of which the head of the
institution could reasonably foresee might effect a result described in
paragraph 20(1) (c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the
third party can reasonably be located, within thirty days after the request is
received, give written notice to the third party of the request and of the fact
that the head of the institution intends to disclose the record or part
thereof.
(2) Any third party to whom a notice is required
to be given under subsection (1) in respect of an intended disclosure may waive
the requirement, and where the third party has consented to the disclosure the
third party shall be deemed to have waived the requirement.
(3) A notice given under subsection (1) shall
include
(a) a statement that the head of the government institution
giving the notice intends to release a record or a part thereof that might
contain material or information described in subsection (1);
(b) a description of the contents of the record or part
thereof that, as the case may be, belong to, were supplied by or relate to the
third party to whom the notice is given; and
(c) a statement that the third party may, within twenty days
after the notice is given, make representations to the head of the government
institution that has control of the record as to why the record or part thereof
should not be disclosed.
(4) The head of a government institution may
extend the time limit set out in subsection (1) in respect of a request under
this Act where the time limit set out in section 7 is extended under paragraph
9(1) (a) or (b) in respect of the same request, but any extension
under this subsection shall be for a period no longer than the period of the
extension under section 9 .
28. (1) Where a notice is given by the head
of a government institution under subsection 27(1) to a third party in respect
of a record or a part thereof,
(a) the third party shall, within twenty days after the notice
is given, be given the opportunity to make representations to the head of the
institution as to why the record or the part thereof should not be disclosed;
and
(b) the head of the institution shall, within thirty days
after the notice is given, if the third party has been given an opportunity to
make representations under paragraph (a), make a decision as to whether
or not to disclose the record or the part thereof and give written notice of
the decision to the third party.
(2) Representations made by a third party under
paragraph (1)(a) shall be made in writing unless the head of the
government institution concerned waives that requirement, in which case they
may be made orally.
(3) A notice given under paragraph (1)(b)
of a decision to disclose a record requested under this Act or a part thereof
shall include
(a) a statement that the third party to whom the notice is
given is entitled to request a review of the decision under section 44 within
twenty days after the notice is given; and
(b) a statement that the person who requested access to the
record will be given access thereto or to the part thereof unless, within
twenty days after the notice is given, a review of the decision is requested
under section 44.
(4) Where, pursuant to paragraph (1)(b),
the head of a government institution decides to disclose a record requested
under this Act or a part thereof, the head of the institution shall give the
person who made the request access to the record or the part thereof forthwith
on completion of twenty days after a notice is given under that paragraph,
unless a review of the decision is requested under section 44 .
29. (1) Where the head of a government
institution decides, on the recommendation of the Information Commissioner made
pursuant to subsection 37(1), to disclose a record requested under this Act or
a part thereof, the head of the institution shall give written notice of the
decision to
(a) the person who requested access to the record; and
(b) any third party that the head of the institution has
notified under subsection 27(1) in respect of the request or would have
notified under that subsection if the head of the institution had at the time
of the request intended to disclose the record or part thereof.
(2) A notice given under subsection (1) shall
include
(a) a statement that any third party referred to in paragraph
(1)(b) is entitled to request a review of the decision under section 44
within twenty days after the notice is given; and
(b) a statement that the person who requested access to the
record will be given access thereto unless, within twenty days after the notice
is given, a review of the decision is requested under section 44.
.
. .
44. (1) Any third party to whom the head of
a government institution is required under paragraph 28(1)(b) or
subsection 29(1) to give a notice of a decision to disclose a record or a part
thereof under this Act may, within twenty days after the notice is given, apply
to the Court for a review of the matter.
(2) The head of a government institution who has given
notice under paragraph 28(1)(b) or subsection 29(1) that a record
requested under this Act or a part thereof will be disclosed shall forthwith on
being given notice of an application made under subsection (1) in respect of
the disclosure give written notice of the application to the person who
requested access to the record.
(3) Any person who has been given notice of an
application for a review under subsection (2) may appear as a party to the
review.
.
. .
51. Where the Court determines, after
considering an application under section 44, that the head of a government
institution is required to refuse to disclose a record or part of a record, the
Court shall order the head of the institution not to disclose the record or
part thereof or shall make such other order as the Court deems appropriate.
Privacy Act,
R.S.C. 1985, c. P-21
3. In this Act ,
.
. .
“personal information” means information about an
identifiable individual that is recorded in any form including, without
restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic
origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical,
criminal or employment history of the individual or information relating to financial
transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular
assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except
where they are about another individual or about a proposal for a grant, an
award or a prize to be made to another individual by a government institution
or a part of a government institution specified in the regulations,
(f) correspondence sent to a government institution by the
individual that is implicitly or explicitly of a private or confidential
nature, and replies to such correspondence that would reveal the contents of
the original correspondence,
(g) the views or opinions of another individual about the
individual,
(h) the views or opinions of another individual about a
proposal for a grant, an award or a prize to be made to the individual by an
institution or a part of an institution referred to in paragraph (e),
but excluding the name of the other individual where it appears with the views
or opinions of the other individual, and
(i) the name of the individual where it appears with other
personal information relating to the individual or where the disclosure of the
name itself would reveal information about the individual,
but, for the purposes of sections 7 , 8 and 26 and section 19 of the Access
to Information Act , does not include
(j) information about an individual who is or was an officer
or employee of a government institution that relates to the position or
functions of the individual including,
(i) the fact that the individual is or was an officer or employee
of the government institution,
(ii) the title, business address and telephone number of the
individual,
(iii) the classification, salary range and responsibilities of the
position held by the individual,
(iv) the name of the individual on a document prepared by the
individual in the course of employment, and
(v) the personal opinions or views of the individual given in the
course of employment,
(k) information about an individual who is or was performing
services under contract for a government institution that relates to the
services performed, including the terms of the contract, the name of the
individual and the opinions or views of the individual given in the course of
the performance of those services,
(l) information relating to any discretionary benefit of a
financial nature, including the granting of a licence or permit, conferred on
an individual, including the name of the individual and the exact nature of the
benefit, and
(m) information about an individual who has been dead for more
than twenty years;
.
. .
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.
(2) Subject to any other Act of Parliament,
personal information under the control of a government institution may be
disclosed
.
. .
(m) for any purpose where, in the opinion of the head of the
institution,
(i) the public interest in disclosure clearly outweighs any
invasion of privacy that could result from the disclosure, or
(ii) disclosure would clearly benefit the individual to whom the
information relates.
.
. .
(5) The head of a government institution shall
notify the Privacy Commissioner in writing of any disclosure of personal
information under paragraph (2)(m) prior to the disclosure where
reasonably practicable or in any other case forthwith on the disclosure, and
the Privacy Commissioner may, if the Commissioner deems it appropriate, notify
the individual to whom the information relates of the disclosure.
Federal
Courts Act, R.S.C. 1985, c. F-7
18. (1) Subject to section 28 , the Federal
Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or other tribunal;
and
(b) to hear and determine any application or other proceeding
for relief in the nature of relief contemplated by paragraph (a),
including any proceeding brought against the Attorney General of Canada, to
obtain relief against a federal board, commission or other tribunal.
.
. .
(3) The remedies provided for in subsections (1)
and (2) may be obtained only on an application for judicial review made under
section 18.1 .
18.1 (1) An application for judicial review
may be made by the Attorney General of Canada or by anyone directly affected by
the matter in respect of which relief is sought.
(2) An application for judicial review in respect
of a decision or an order of a federal board, commission or other tribunal
shall be made within 30 days after the time the decision or order was first
communicated by the federal board, commission or other tribunal to the office
of the Deputy Attorney General of Canada or to the party directly affected by
it, or within any further time that a judge of the Federal Court may fix or
allow before or after the end of those 30 days.
(3) On an application for judicial review, the
Federal Court may
(a) order a federal board, commission or other tribunal to do
any act or thing it has unlawfully failed or refused to do or has unreasonably
delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set
aside and refer back for determination in accordance with such directions as it
considers to be appropriate, prohibit or restrain, a decision, order, act or
proceeding of a federal board, commission or other tribunal.
(4) The Federal Court may grant relief under
subsection (3) if it is satisfied that the federal board, commission or other
tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction
or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice,
procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or
not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or without regard for the
material before it;
(e) acted, or failed to act, by reason of fraud or perjured
evidence; or
(f) acted in any other way that was contrary to law.
(5) If the sole ground for relief established on
an application for judicial review is a defect in form or a technical
irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or
miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical
irregularity in a decision or an order, make an order validating the decision
or order, to have effect from any time and on any terms that it considers
appropriate.
Appeal dismissed with costs, McLachlin C.J.
and Bastarache and
LeBel JJ. dissenting.
Solicitor for the appellant: Deputy Attorney General of
Canada, Ottawa.
Solicitors for the respondent: Stikeman Elliott, Ottawa.
Solicitors for the intervener: Langlois Kronström
Desjardins, Montréal.