Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA 270

Date: 20020621

Docket: A-326-01

Ottawa, Ontario, June 21, 2002

CORAM:        DÉCARY J.A.

NOËL J.A.

EVANS J.A.

BETWEEN:

                                THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                                       Appellant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                                                 and

                                                                    PHILIP W. PIRIE

                                                                                                                                      Added Respondent

                                                                                 and

                                      THE PRIVACY COMMISSIONER OF CANADA

                                                                                                                                                     Intervener

                                                                        JUDGMENT

The appeal is allowed without costs. The decision of the Applications Judge is set aside and the Minister of Citizenship and Immigration is ordered, pursuant to section 49 of the Access to Information Act, to disclose to the requester, Mr. Philip Pirie, the records or parts thereof that, according to the reasons for judgment herein, do not qualify for exemption under subsection 19(1) of the Act.

The cross-appeal is dismissed without costs.

                                                                                                                                            "Robert Décary"                    

                                                                                                                                                                  J.A.

Date: 20020621

Docket: A-326-01

Neutral citation: 2002 FCA 270

CORAM:           DÉCARY J.A.

NOËL J.A.

EVANS J.A.

BETWEEN:

                                       THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                                        Appellant

                                                                                 and

                                     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                                                                 and

                                                                     PHILIP W. PIRIE

                                                                                                                                          Added Respondent

                                                                                 and

                                            THE PRIVACY COMMISSIONER OF CANADA

                                                                                                                                                      Intervener

                                                   Heard at Ottawa, Ontario, on June 4, 2002.

                                       Judgment delivered at Ottawa, Ontario, on June 21, 2002.

REASONS FOR JUDGMENT BY:                                                                                               DÉCARY J.A.

CONCURRED IN BY:                                                                                                                      NOËL J.A.

                                                                                                                                                     EVANS J.A.

Date: 20020621

Docket: A-326-01

Neutral citation: 2002 FCA 270

CORAM:        DÉCARY J.A.

NOËL J.A.

EVANS J.A.

BETWEEN:

                                THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                                       Appellant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                                                 and

                                                                    PHILIP W. PIRIE

                                                                                                                                      Added Respondent

                                                                                 and

                                      THE PRIVACY COMMISSIONER OF CANADA

                                                                                                                                                     Intervener

                                                        REASONS FOR JUDGMENT

DÉCARY J.A.

[1]                 This is an appeal from a judgment of Madam Justice Dawson reported at [2001] 3 F.C. 384. The principal issue is whether the names of individuals interviewed in the course of an administrative review, who expressed views or opinions about a senior officer of the Department of Citizenship and Immigration (the Department), and portions of their interviews which would identify them, are exempted from disclosure as their "personal information" as defined in paragraph 3(i) of the Privacy Act.

[2]                 The relevant facts can be simply put. Allegations of discriminatory behaviour and harassment at the Department's Case Processing Centre (the Centre) in Vegreville, Alberta, prompted the respondent (the Minister) to request an independent consultant to "examine corporate culture, values and systems in the [Centre] with a view to enhancing respect in the workplace for all individuals". Interviews were conducted in April, May and June of 1996 on a voluntary basis. Employees who participated were advised that the interviews would be confidential; managers who participated were not so advised. The notes from the interviews were to be maintained by the consultant and were not to be passed to the Department. The final report was provided to the Department on July 1, 1996, and it was eventually made public.

[3]                 On July 10, 1996, Mr. Pirie, the Director of the Centre, was given a copy of the report. That very day, he was relieved of his duties. On July 31, 1996, he sought access to the notes from the interviews. As a result of that request, the interview notes then in the possession of the consultant came into the possession of the Department. Mr. Pirie was denied access to the notes in part. He then complained to the Information Commissioner of Canada (the Information Commissioner) and further disclosures were made. In the end, the names of the persons interviewed, along with information regarding their position, were not disclosed. In addition, views or opinions about Mr. Pirie were severed from the records disclosed to him when their disclosure would indirectly disclose the identity of the person who expressed them.

[4]                 The Department relied at different times on paragraph 16(1)(c), section 17 and subsection 20(1) of the Access to Information Act (the Access Act) to refuse disclosure to Mr. Pirie. In the end, however, it relied only on subsection 19(1) of the Access Act and the definition of personal information contained in section 3 of the Privacy Act to which subsection 19(1) of the Access Act refers.

[5]                 The Applications Judge found that paragraph 3(i) of the Privacy Act warranted non-disclosure of the names and opinions of the interviewees. She then went on to determine whether the information was nevertheless to be disclosed as a result of the exception found in paragraph 3(j). She ruled that the exception applied, but only with respect to the names and opinions of the interviewees who had responsibility to prevent harassment in the workplace. In the end, she ordered the disclosure of "the identities of all managers with responsibility to prevent harassment in the workplace or to administer a harassment policy who were interviewed together with any of their recorded opinions or views which have not already been disclosed to Mr. Pirie".

[6]                 I have reached the conclusion, with respect, that paragraph 3(i) of the Privacy Act does not apply, or does not prevail in the present instance, and that disclosure is mandated pursuant to paragraphs 3(e) and 3(g). In the circumstances, there will be no need to discuss the application of paragraph 3(j), except to note that all parties agree that the Applications Judge erred in relying on it.

[7]                 The Privacy Commissioner of Canada (the Privacy Commissioner) was granted leave to intervene. He supports the position of the Information Commissioner.

[8]                 I would like, at the outset, to make four preliminary observations.

[9]                 First, at the hearing, some time was spent by counsel in discussing the impact of the report and the interview notes on the career of Mr. Pirie and the course of action that would be open to him under the Access Act or otherwise should disclosure be ordered. This discussion is, in my view, irrelevant. What is at issue, here, is whether Mr. Pirie has the right of access to the impugned information, not what he intends to do with it, nor the reasons that prompted his request for disclosure (see Lavigne v. Canada (Commissioner of Official Languages) (1998), 157 F.T.R. 15, Dubé J. at para. 28, aff'd (2000), 261 N.R. 19 (F.C.A.); aff'd 2002 SCC 53">2002 SCC 53).

[10]            Second, a comparison of the documents at issue, before and after severance of the names of the interviewees and any information that could identify them, clearly reveals that much of the information the Department is prepared to disclose to Mr. Pirie would be incomprehensible to him and that many of the views expressed would not even be disclosed. For all practical purposes, the right given to Mr. Pirie under subsection 12(2) of the Privacy Act to "request correction of the personal information" would be meaningless. As noted by this Court in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A., leave to appeal to the Supreme Court of Canada granted, appeal heard April 24, 2002, SCC 28029), at para. 167:

We accept the appellant's submission that in order for the right to informational privacy to have any substantive meaning it must be concerned with both the acquisition of personal information and its subsequent use.

In the case at bar, for example, one wonders what use Mr. Pirie ("Phil") may make of the following information contained at page 2813 of Volume 10 of the Appeal Book:

Did not feel Phil was interested in diversity. He didn't get along with her

The only reason he transferred                                                     was that he wanted to get rid of

When asked when Phil knew about racism in the CPC, she said right away because                                knew.

[11]            Third, the promise of confidentiality made by the Department to some of the interviewees cannot override the obligation imposed by statute to release the information, nor be opposed to Mr. Pirie should he be entitled to disclosure (see Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140 (F.C.T.D., Richard J., at para. 26; Lavigne, supra).

[12]            Fourth, the chilling effect disclosure might have on possible future investigations has been consistently denied as a ground for refusing disclosure (see Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 at 445 (C.A.); Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, para. 45; Lavigne, supra). I appreciate that these decisions were rendered in the context of paragraph 16(1)(c) of the Access Act and of paragraph 22(1)(b) of the Privacy Act, but the principles they set out with respect to investigative bodies involved in the detection of crime or law enforcement are even more applicable to informal investigations of an administrative nature such as in the case at bar. If Parliament is prepared to protect the identity of a confidential source of information only during the course of "lawful investigations" contemplated by these paragraphs, one can hardly make a policy argument that it is necessary to protect the name of a witness in an informal inquiry in order to avoid jeopardizing the conduct of such inquiries in the future.

[13]            For the sake of convenience, I reproduce below the provisions of the Privacy Act and of the Access Act to which I later refer:

                                                                                                                                [My emphasis]

[14]            Both the Access Act and the Privacy Act "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" (Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 48). However, most cases that have reached the courts pitted individuals alleging their private interests for disclosure against government institutions relying on public interest to oppose disclosure, or were strictly concerned with the disclosure of personal information about oneself which an individual had himself revealed to a government institution. In contrast, this case is about the competing interests under the Privacy Act of two individuals who contend that the impugned information is their personal information and who are fighting over its disclosure. Mr. Pirie, on the one hand, claims that the views expressed about him by the interviewees and the identity of the interviewees are his "personal information" pursuant to paragraph 3(g). On the other hand, interviewees (whom I deem for the purposes of these reasons to be represented by the Minister) claim that the views they have expressed about Mr. Pirie are, pursuant to paragraph 3(i), their own "personal information" insofar as their names and any information likely to identify them are concerned.

[15]            Given the expansive meaning attributed to "personal information" in Dagg, supra, it is clear that the same information can be "personal" to more than one individual. However, the scheme of the Privacy Act requires that one interest must prevail over the other, since a government institution cannot, with respect to the same information, both disclose it with the consent of one individual in accordance with subsection 8(1) of the Privacy Act, and refuse to disclose it because of the lack of consent of another individual. The failure to recognize that one piece of information may be personal to two different individuals with competing interests in its disclosure is at the root of the incorrect interpretation which, in my respectful view, was proposed by the Minister and eventually adopted by the Applications Judge.

[16]            In the case at bar, the Applications Judge found that the information in dispute was personal to both Mr. Pirie and to the interviewees under the general opening words of the definition of "personal information" in section 3 of the Privacy Act. She went on to "review the balance of the definition of personal information, that is the enumerated exemplifiers, to ensure that the above conclusion, based upon the opening words of the definition alone, accords with the balance of the definition" (at para. 21).

[17]            The Applications Judge eventually concluded that, even though paragraphs 3(e) and 3(g) make it clear that interviewees' opinions about Mr. Pirie are Mr. Pirie's personal information, these paragraphs deal with the substance of the opinions and are silent with respect to the names or identities of the holders of the opinions. Relying on Dagg, supra, she found that since the names or identities of the interviewees were not expressly mentioned in paragraphs 3(e) and 3(g), they were captured by the broad opening words of the definition. She also rejected the argument based on paragraph 3(h) to the effect that, in view of the specific exclusion of the name in paragraph 3(h), dealing with part of the exclusion found in paragraph 3(e), the absence of any reference to the exclusion of a person's name in paragraph 3(g) should be taken as an indication of Parliament's intent that an identifiable individual may not anonymously express an opinion about another individual. She found the argument "at first glance persuasive" (para. 36), but declined to accept that approach to statutory interpretation "where the general opening words of the definition are intended to be the primary source of interpretation and the subsequent enumeration merely exemplifiers".

[18]            She then moved on to paragraph 3(i), which deals expressly with an individual's name and makes the name of the individual the personal information of the latter "in one of two situations: first, where the name appears with other personal information relating to the individual; second, where disclosure of the name would reveal information (not necessarily personal information) about the individual" (para. 26). She found that the first branch of paragraph 3(i) did not apply, because the name of the interviewees did not appear with other personal information about them, but that the second branch of the paragraph did apply because the disclosure of their names would reveal information about them, namely that they participated in the administrative review. In the end, she decided that paragraphs 3(e) and 3(g) did not apply because paragraph 3(i) applied. In my view, she erred in concluding that these paragraphs could not co-exist.

[19]            With respect to paragraphs 3(e), (g) and (h), the conclusion of the Applications Judge is based on the premise that in Dagg, supra, the Supreme Court of Canada invited courts, when determining whether a given information is "personal information", to minimize the significance of the examples given in paragraphs (a) to (i) of the definition of "personal information" in section 3 of the Privacy Act.

[20]            The relevant passage from the reasons of La Forest J. (who, on this issue, was speaking for the Court) is found in paragraph 68:

...In its opening paragraph, the provision states that "personal information" means "information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing". On a plain reading, this definition is undeniably expansive. Notably, it expressly states that the list of specific examples that follows the general definition is not intended to limit the scope of the former. As this Court has recently held, this phraseology indicates that the general opening words are intended to be the primary source of interpretation. The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition; see Schwartz v. Canada, [1996] 1 S.C.R. 254, at pp. 289-91. Consequently, if a government record is captured by those opening words, it does not matter that it does not fall within any of the specific examples.

[21]            With respect, this statement has to be read in context. La Forest J. was merely stating the obvious, i.e. when a definition uses the words "including, without restricting the generality of the foregoing", that definition is "undeniably expansive" and is not limited to the matters thereafter specially enumerated. In saying that "if a government record is captured" by the opening words, "it does not matter that it does not fall within any of the specific examples", he was not saying that it did not matter that a government record was expressly or impliedly excluded by one of the specific examples. Indeed, referring to the opening words of the definition, he went on to say, at para. 69: "[i]ts intent seems to be to capture any information about a specific person, subject only to specific exceptions".

[22]            When, as in the case at bar, a specific example excludes a certain type of information from the definition of "personal information", the exclusion cannot be ignored on the ground that the example is merely an illustration, and that what is excluded by the example is nevertheless captured by the opening words. Parliament cannot have intended to include in the general words what it has excluded in the examples given. There is a significant difference between a record that does not come within the purview of an example and a record that is excluded by that very example.

[23]            Paragraph 3(e) makes it clear that the personal opinions of an individual (an interviewee) are his "personal information" except when they are about another individual (Mr. Pirie) in which case paragraph 3(g) provides that they become the "personal information" of Mr. Pirie.

[24]            Paragraph 3(h), on the other hand, resolves any doubt as to whether paragraph 3(e) included the identity of the holder of the opinions or views in the words "personal opinions or views of an individual". Only when the views concern a proposal for a grant, an award or a prize, is the identity of their holder excluded. We know, from the legislative history of the definition of "personal information" in the Privacy Act, that paragraph 3(h) was added to "clarify that these assessments will be available to the individuals whose proposals have been assessed, but the identity of the assessor would not be available" (the Hon. Francis Fox, Minutes of Proceedings and Evidence of the standing Committee on Justice and Legal Affairs on Bill C-43 (1980-83) at 94:171-172). Had Parliament intended this "clarification" to apply to the whole of paragraph 3(e), it would surely have said so and simply added the clarification to the end of that paragraph. In using the word "clarification", the Hon. Fox confirms, in my view, that the very notion of "opinion or belief of an individual" (my emphasis) would otherwise contemplate the source of that opinion or belief, i.e. the identity of the individual holding it. An opinion presumes an opinion-holder.

[25]            Contrary to the Applications Judge, I conclude that the name and identity of interviewees are as much the personal information of Mr. Pirie, pursuant to paragraph 3(g), as is the substance of the opinions or views expressed.

[26]            With respect to paragraph 3(i), I agree with the Applications Judge that its first branch is not applicable in the circumstances. As regards the second branch, I disagree with the conclusion that it may be applied to the contextual information (as opposed to the name) that could reveal the identity of interviewees. Paragraph 3(i) applies where the disclosure of the name itself would reveal information about the individual. Where the name does not appear, the information does not fall under paragraph 3(i) (see Dagg, supra, at para. 82).

[27]            Still with regard to the second branch of paragraph 3(i), I entertain some doubt that the words "information about the individual" have the sweeping meaning that La Forest J., in obiter in Dagg, supra, at para. 85, gave them, but I cannot fault the Applications Judge for having relied on it and I have little choice myself but to hold that the name itself of an interviewee is personal information of the latter under paragraph 3(i), although, as we shall see, this finding has no impact on my ultimate conclusion.

[28]            In the end, I find that the name of interviewees and the contextual information that may lead to their identification are the personal information of Mr. Pirie pursuant to paragraph 3(g) and that the name of interviewees is also their personal information pursuant to paragraph 3(i). There is no issue, then, that Mr. Pirie is entitled to the disclosure of the contextual information. But what about the disclosure of the name? A choice has to be made between the right of Mr. Pirie to seek its disclosure and the right of the interviewees to oppose it. Whose interest should prevail?

[29]            The balancing exercise has to take into consideration, in my view, the private interests of both Mr. Pirie and the interviewees, as well as the public interest in disclosure and in non-disclosure, respectively.

[30]            The private interest of the interviewees is in hiding the fact that they participated in the inquiry and keeping confidential conversations they had with an investigator (I note, however, that the managers who were interviewed were not given any promise of confidentiality and cannot allege that private interest). Preserving their anonymity would ensure that their working or personal relationship with Mr. Pirie is not jeopardized and, more importantly, would protect them from any possible legal action that Mr. Pirie could bring on the basis of the views expressed.

[31]            This private interest is minimal. The fact that the interviewees participated in the inquiry has, in itself, little significance and, to the extent that they can justify the views they expressed, they should not fear the consequences of the disclosure, although, obviously, there may be some. To the extent that they cannot justify their views, they might have reason to fear. The fear, however, is caused not by the disclosure but by the fact that the views were expressed in the first place and that, perhaps, they were not justifiable.

[32]            The public interest in the non-disclosure which is alleged by the Minister is that of the chilling effect the disclosure might have on future investigations, coupled with the fact that promises of confidentiality made by (or on behalf of) a government institution will not be given effect. I have dealt with this argument in paragraphs 10 and 11 of these reasons and readily rejected it.

[33]            The private interest of Mr. Pirie, on the other hand, is significant. Implicit, if not explicit in the report and in the action taken by the Department as a result of the publication of the report, is the fact that he bears some responsibility for the problems which were found to exist at the Centre. Surely, he must be given the opportunity to know what was said, and by whom, against him, if only to exercise his right under subsection 12(2) of the Privacy Act to clear his name in the Department's archives.

[34]            The public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. Whatever the rules of procedural propriety applicable in a given case, fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views, to challenge their accuracy and to correct them if need be.

[35]            I therefore conclude that both the private interest of Mr. Pirie and the public interest mandate the disclosure of the name of the interviewees.

[36]            This conclusion is consistent with the comments made by Privacy Commissioner Grace in his testimony before the Standing Committee on Public Accounts, on December 12, 1989, that one of the rights conferred by the Privacy Act

...is to know what accusations against us are recorded in government files and who has made them. Whether such accusations are true and well intentioned, as some may be, or false and malicious, as other may be, it is fundamental to our notion of justice that accusations not be secret nor accusers faceless.

                                                                             [Minutes of Proceedings and Evidence on the

                                                              Standing Committee on Public Accounts, 12-12-1089,

                                                                              House of Commons, Issue No. 20, p. 20:10]

[37]            This conclusion is also consistent with the administrative interpretation of the Privacy Act given in a Treasury Board Manual. I appreciate that the Manual is at best an aid to the interpretation of the Privacy Act, that it represents only the opinion of the Treasury Board or the officials and that they are not binding on government institutions and even less so on the courts (see Canada Post Corp. v. Canada (Minister of Public Works), [1993] 3 F.C. 320 (T.D.), at 341, aff'd [1995] 2 F.C. 110). Yet, the convergent views of the main and competing actors involved in this type of dispute, i.e. the Treasury Board, the Information Commissioner and the Privacy Commissioner, may offer "persuasive opinion on the purpose or meaning of legislation" (Ruth Sullivan, Driedger on the Construction of Statutes, 3^rd ed., Toronto: Butterworths, 1994, at 469-471). Here is what the Manual has to say:

...Where the possibility of an invasion of privacy exists, institutions must either sever the information about the other individual from the record or, where this is not possible, exempt the information.

For practical and administrative purposes, therefore, information about more than one individual should be separated within the personal information bank whenever possible.

This exemption does not cover the name of a source of information about an individual (e.g. the source of an opinion or critique of an individual's work), except in some specific cases. As provided in paragraphs 3(e) and (h) of the definition of personal information, the exemption covers the name of a referee or judge for a grant, award or prize for those institutions named in the Regulations (Schedule I). Except as provided in paragraphs 3(e) and (h) of the Act, the name of the source and the information or opinion about the individual cannot be exempted. Any other personal information about the source, (e.g. address, title, nationality, etc.), must be severed before the record is disclosed. The name of a source and his or her opinions may, of course, be withheld if they qualify for exemption on other grounds.

                                                        [Treasury Board Manual on Privacy and Data Protection,

                                 Ottawa: Minister of Supply and Services Canada, 1993, at pp. 33-34]

                                                                                                                                [My emphasis]

[38]            Further, in a July 19, 2001 Memorandum to the Director of Human Resources regarding the "Application and interpretation of the Access to Information Act and the Privacy Act for the TB policy on the Prevention and Resolution of Harassment in the Workplace", the Treasury Board noted:

[C]omplainants, respondents and other involved parties, have the right to know what was said about them and by whom.

That Memorandum added:

All persons being interviewed during the course of a harassment investigation must be informed that information they provide concerning another may be provided to that person. Given this, it is important that absolute promises of confidentiality not be made.

[39]            In view of the conclusion I have reached, it will not be necessary to rule on other conclusions reached by the Applications Judge. In addition, the cross-appeal filed by the respondent which relates to paragraph 3(j) should be dismissed without costs as no longer having any object.

[40]            For these reasons, I would allow the appeal, set aside the decision of the Applications Judge and issue an Order pursuant to section 49 of the Access to Information Act directing the Minister of Citizenship and Immigration Canada to disclose to the requester, Mr. Philip Pirie, the records or parts thereof that, according to these reasons for judgment, do not qualify for exemption under subsection 19(1) of the Act.

[41]            No costs were sought by the appellant, and none should be awarded.

                                                                                                                                             "Robert Décary"                                    

                                                                                                                                                                  J.A.

"I agree.

     Marc Noël, J.A."

"I agree.

     John M. Evans, J.A."

                                                          FEDERAL COURT OF APPEAL

                                     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                  A-326-01

APPEAL AND CROSS-APPEAL FROM THE JUDGMENT OF THE TRIAL DIVISION OF THE FEDERAL COURT OF CANADA, DATED MAY 3, 2001, IN FILE T-1569-99.

STYLE OF CAUSE:                                                   The Information Commissioner of Canada v. The Minister of Citizenship and Immigration and Philip W. Pirie and The Privacy Commissioner of Canada

PLACE OF HEARING:                                                Ottawa, Ontario

DATE OF HEARING:                                                  June 4, 2002

REASONS FOR JUDGMENT BY:                               Décary J.A.

CONCURRED IN BY:                                                 Noël J.A.

Evans J.A.

DATED:                                                                       June 21, 2002

APPEARANCES:

Mr. Daniel Brunet                                                          FOR THE APPELLANT

Ms. Patricia Boyd

Mr. Christopher Rupar                                                  FOR THE RESPONDENT

Mr. Dougald Brown                                                     FOR THE INTERVENER

Mr. Steven Welchner

SOLICITORS OF RECORD:

Information Commissioner of Canada                           FOR THE APPELLANT

Ottawa, Ontario

Mr. Morris Rosenberg                                                 FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

Nelligan O'Brien Payne LLP                                           FOR THE INTERVENER

Ottawa, Ontario