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Info Source Bulletin 34A – Federal Court Decision Summaries
Index of Federal Court Decisions
The following Court Decision summaries were prepared by the Information and Privacy Policy Division based on information provided by the Information Law and Privacy Section, Department of Justice.
These summaries are ordered by the most recent date of decision.
- Dagg v. Canada (Industry)
- Stratham v. Canadian Broadcasting Corporation
- Canadian Broadcasting Corporation v. Canada (Information Commissioner)
- Blank v. Canada (Justice)
- Nault v. Canada (Public Works and Government Services)
- Canadian Association of Elizabeth Fry Societies v. Canada (Public Safety and Emergency Preparedness)
- Provincial Airlines Ltd. v. Canada (Attorney General)
- Bernard v. Canada (Attorney General)
- Dagg v. Canada (Industry)
- Brainhunter (Ottawa) Inc. v. Canada (Attorney General)
Dagg v. Canada (Industry)
Federal Court of Appeal
Date of decision: November 22, 2010
Sections(s): 7, 9, 10 and 41 of the Access to Information Act
Origin
This is an appeal from an order of the Federal Court on December 11, 2009. The sole issue to be determined on this appeal is whether the Judge made an error in principle when he dismissed a motion for costs brought by the appellant, Mr. Dagg.
Facts
From the Federal Court decision on December 11, 2009, the Judge had dismissed the motion and did not award costs against either party, on the basis that the Federal Court had no jurisdiction to hear the application for judicial review but that the law in this area had yet to be determined by the Federal Court of Appeal.
Mr. Dagg argued that the Judge erred in law in failing to award costs to him. He asserted that he only received the requested documents because he commenced his application in the Federal Court. He seeks reimbursement of the legal fees he incurred in the amount of $3,405.00.
Decision
The Federal Court of Appeal allowed the appeal and ordered that the appellant receive his costs in the Federal Court, assessed on party-and-party basis. As the appellant was successful on the appeal, he was also ordered his costs of the appeal.
Reasons for the Decision by the Federal Court of Appeal
Question 1
Did the Federal Court Judge err in principle when he dismissed a motion for costs brought by the appellant, Mr. Dagg?
Answer 1
The Federal Court of Appeal stated that they may only interfere with the Judge's order as to costs if the Judge made an error in principle, or if the costs award is plainly wrong.
In reasons cited as Statham v. Canadian Broadcasting Corp, 2010 Federal Court of Appeal 315, the Federal Court of Appeal found that the Federal Court erred when it interpreted the Access to Information Act (ATIA) to empower the Commissioner to "cure" deemed refusals by establishing a commitment date so as to in effect extend the time frames established in the ATIA. The Federal Court of Appeal also affirmed that no distinction exists between a deemed refusal of access and a refusal based upon exemptions or exclusions in the ATIA.
The Federal Court of Appeal then applied those conclusions to this case stating, when Mr. Dagg commenced his application for judicial review Industry Canada was deemed, under the ATIA, to have refused access to him. This was because access was not provided within the extended time period. Subsequently, after the application for judicial review was commenced, access was provided. At that time, Mr. Dagg correctly took the position that his application had become moot.
By following the decision of the Federal Court in Statham, the Judge committed an error in principle. Mr. Dagg's application for judicial review was not premature when it was commenced. Throughout, the Federal Court had jurisdiction. Later, when access was provided the application was rendered moot.
But for that error of principle, the Judge would have considered Mr. Dagg's claim for costs on the basis that his application had been properly commenced, but had been rendered moot. The Judge would also have considered that Mr. Dagg was provided with the requested records after the application for judicial review was commenced, some 20 months after the access request had been filed. In the specific circumstances, considering the above factors, the Federal Court of Appeal concluded that Mr. Dagg was entitled to have his costs in the Federal Court.
As to the quantum of such costs, Mr. Dagg was effectively seeking costs on a solicitor-and-client basis. The jurisprudence is well settled that solicitor-and-client costs are "generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties." The Federal Court of Appeal held that the conduct of Industry Canada could not be so characterized. Rule 407 of the Federal Courts Rules provides that unless otherwise ordered, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B of the Federal Courts Rules.
For more information please refer to the Federal Court of Appeal Decision on Dagg v. Canada (Industry).
Stratham v. Canadian Broadcasting Corporation
Federal Court of Appeal
Date of Decision: November 22, 2010
Sections(s): 7, 10, 30, 34, 36, 37, 41, 49, and 50 of the Access to Information Act
Origin
This is an appeal from the decision made by the Federal Court on October 13, 2009. The application for review under section 41 of the Access to Information Act (ATIA) is with regards to "deemed refusal".
Facts
The Canadian Broadcasting Corporation (CBC), which became subject to the ATIA on September 1, 2007, received from the appellant almost 400 requests for access to information between September 1, 2007 and December 12, 2007. The CBC neither responded within 30 days of the requests' receipt nor notified the appellant that time extensions were being claimed. The appellant submitted approximately 389 complaints to the Information Commissioner alleging that the CBC was deemed to have refused to give access to the requested records.
The Information Commissioner took the view that the CBC had been overwhelmed by the volume of access requests so that it would require a reasonable amount of time to respond to them. After discussions with the CBC and Mr. Stratham, the Information Commissioner recommended that the CBC respond to all of the access requests by April 1, 2009. The CBC agreed. The Information Commissioner then reported to the appellant that his complaints were valid but resolved on the basis of the CBC's undertaking.
On May 20, 2008, the appellant applied for judicial review pursuant to s. 41 of the ATIA which states that an applicant may apply to the Court if he or she has been refused access to a record and has complained to the Information Commissioner in respect of that refusal. Mr. Stratham sought an order requiring the CBC to disclose the requested documents by a deadline to be agreed by the parties or set by the Court and costs. The Federal Court gave the Information Commissioner leave to intervene in the application to make submissions on the Court's jurisdiction and the appropriate remedy in the event the application was successful. The CBC brought a motion to strike the application on the grounds it was bereft of any chance of success; the Information Commissioner moved for an order either setting aside the application or giving directions as to the conduct of the proceeding. Prothonotary Tabib found that the appellant had improperly challenged in a single application several hundred refusals by the CBC but allowed the application to proceed on the basis that the appellant conceded that, for every request for which a response of any kind had been received up to the start of the hearing, the application would be moot or would be withdrawn. The appellant was ordered to pay the costs of both motions to the CBC and to the Information Commissioner.
All but 38 of the access requests were processed by the commitment date; the remaining responses were delivered five days before the Federal Court hearing of the judicial review application. Notwithstanding this, the appellant continued the application, seeking a declaration that the CBC had acted unreasonably, relief he had not sought in his amended notice of application.
The applications judge dismissed the application for disclosure and declined to grant declaratory relief. He awarded costs in favour of the CBC and the Information Commissioner.
Decision
The appeal was dismissed except for the cost order was varied so that the CBC shall pay the costs of the application to Mr. Statham. In addition, the CBC was ordered to pay the costs of this appeal to Mr. Statham. No costs were awarded for or against the intervener.
Reasons for the Decision by the Federal Court of Appeal
Question 1
Did the judge err in his primary finding that the application was moot because at the time of the hearing the appellant had been provided with a response to all of his access requests?
Answer 1
The applications judge committed no reviewable error in the exercise of his complete discretion to dismiss the application for mootness. The appellant had conceded before the Prothonotary that if every request for access were responded to the application would become moot and be withdrawn. Once all of the access requests were responded to, the rights of the parties in relation thereto could not be affected by any decision in the pending judicial review application. Thus, the Federal Court of Appeal dismissed the appeal. That said, consistent with the principle of judicial economy, the Federal Court of Appeal addressed the remaining issues in light of the full arguments made thereon and the impact of the decision in other pending cases.
Question 2
What is the effect at law of a deemed refusal of access?
Answer 2
It is settled law that no distinction exists between a "true refusal" and a deemed refusal for access. Therefore, where there is a deemed refusal under subsection 10(3) of the ATIA , the complainant and the Information Commissioner are placed in the same position as if there had been a refusal within the meaning of section 7 and subsection 10(1).
Question 3
When the Information Commissioner receives a complaint alleging a deemed refusal of access, may the Information Commissioner limit her investigation to establishing a time frame in which the government institution is to respond to the access request?
Answer 3
The Information Commissioner was entitled in her discretion to limit her investigation. Nothing in the ATIA suggests the Information Commissioner is required in every case to investigate and assess a government institution's claimed exemptions or exclusions before the she can report that in her view the government institution is deemed to have refused access.
The Information Commissioner may confine her investigation to recommending a time frame in which a government institution is to respond to the access request. Such an approach will result, at the end of the day, in the government institution giving the notice required under sections 7 and 10 of the ATIA. If at that time access is not provided, the institution's response will enable the access requester to consider whether to lodge a further complaint with the Information Commissioner.
Question 4
If the Information Commissioner is entitled to so limit her investigation, did the Judge err by stating that it is for the Information Commissioner to assess the circumstances and determine what is a reasonable deadline for complying with the access request, thus in effect curing the deemed refusal?
Answer 4
The ATIA confers no authority on the Information Commissioner to "cure" a deemed refusal of access by granting any extension of time to a government institution to respond to an access request. First, the discretion to determine the procedure to be followed in an investigation is a distinct and separate issue from the powers granted to the Information Commissioner when investigating a complaint. Neither section 36 nor any other provision of the ATIA confers power on the Information Commissioner to extend the time frames set out in the ATIA. Second, the Information Commissioner has no authority to order the disclosure of any record. It is inconsistent with the role and mandate of the Information Commissioner to clothe her with authority to grant to a government institution a binding extension of time for the purpose of responding to an access request.
Question 5
Did the judge err by stating that the appellant could not apply to the Federal Court to judicially review the CBC's deemed refusal of access prior to the expiration of the commitment date?
Answer 5
Where there is a complaint of a deemed refusal to provide access, the complainant may apply for judicial review within 45 days of receiving the Information Commissioner's report. The relevance of the procedure chosen by the Information Commissioner is that in an application under section 41 of the Act, the Court cannot rule upon the application of any exemption or exclusion claimed under the Act if the Information Commissioner has not investigated and reported upon the claim to the exemption or exclusion.
Question 6
Did the judge err by failing to grant the requested declaration?
Answer 6
The applications judge did not err in refusing declaratory relief but for a different reason than the one given by him. The request for declaratory relief should have been refused because the reasonableness of the CBC's conduct was not directly in issue in this application. The appellant had not complained to the Information Commissioner about the reasonableness of the CBC's conduct, and neither his notice of application for judicial review nor his amended application sought declaratory relief. The appellant had conceded to Prothonotary Tabib that the application would become moot in respect of all of the access requests to which the CBC responded. Finally, it was inconsistent with a general request for declaratory relief to consolidate all of the complaints within a single application as the appellant had done. In these circumstances it would have been inappropriate to grant declaratory relief. Consequently, it was unnecessary to consider whether the Federal Court could have granted declaratory relief.
Question 7
Did the judge err by awarding costs against the appellant?
Answer 7
The applications judge exercised his discretion to hear a moot application because he found that the appellant had raised "issues that are of interest to other potential litigants and which have never been addressed by courts before." Having found important issues of principle were raised, it was an error of law to fail to consider the application of subsection 53(2) of the ATIA. Had the applications judge done so, it is likely that the award of costs would have been different.
Nothing in section 53 of the ATIA precludes the Court from considering the conduct of a party before the Court when exercising the discretion as to costs. The judge awarded the costs of the Federal Court proceeding to the appellant.
For more information please refer to the Federal Court of Appeal on Stratham v. Canadian Broadcasting Corporation
Canadian Broadcasting Corporation v. Canada (Information Commissioner)
Federal Court of Canada
Date of decision: September 24, 2010
Sections(s): 2, 4, 35, 36, 37 and 68.1 of the Access to Information Act
Origin
This is an application for judicial review regarding the authority of the Information Commissioner to have access to records in the control of the Canadian Broadcasting Corporation to determine whether the records in question fall outside the exclusion set out in section 68.1 of the Access to Information Act (ATIA).
Facts
Between December 2007 and June 2009, the CBC received a number of access to information requests. The CBC denied several of those requests on the grounds that they were excluded from the application of the ATIA under section 68.1, which provides that the ATIA does not apply to any information that is under the control of the CBC that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.
Sixteen complaints were then filed with the Information Commissioner. As part of the investigation, the Information Commissioner asked the CBC to disclose some records. The CBC denied the request on the grounds that the information contained in the records in the investigation relate to journalistic, creative or programming activities and are therefore excluded from the application of the Act in accordance with section 68.1 of the ATIA.
On September 15, 2009, the Information Commissioner ordered the CBC to disclose to her the relevant records. In the meantime, the CBC brought an application for judicial review before the Federal Court. The Information Commissioner subsequently agreed to suspend her investigation pending the final decision of the Federal Court.
Decision
The Federal Court dismissed the CBC's application for judicial review, finding that section 68.1 of the ATIA gives the Information Commissioner authority to order the CBC to disclose the records in question.
Comment
The CBC has filed a notice to appeal the decision to the Federal Court of Appeal.
Reasons for the Decision by the Federal Court of Canada
Question 1
Does the Information Commissioner have authority to order the CBC to disclose records for the purposes of an investigation conducted by the Information Commissioner?
Answer 1
The standard of review in the case at bar is correctness rather than reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
The purpose of the ATIA 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, subject to limited and specific exceptions and exclusions (s.2). The applicant has the right of access, subject to the application of an exception provided for in the ATIA (s.4). Where access is refused, it is for the Information Commissioner to review a request by holding an investigation.
Although parliamentary debates and discussions in committees may assist in interpreting a statute, they are not conclusive in themselves and the weight assigned to them will be limited.
Subsection 36(2) gives the Information Commissioner access to any record that is under the control of a government institution. Section 68.1 specifies that the ATIA does not apply to any information that is under the control of the CBC that relates to its journalistic, creative or programming activities; however, this section contains a double negative and therefore an exception to the exclusion which refers to information that relates to the general administration of the CBC.
However, in analysing section 68.1 of the ATIA, the Federal Court held that the Information Commissioner must have authority to determine, objectively and independently, whether the records fall under the exception and whether or not they may be properly excluded. The Federal Court dismissed the CBC's position that it has full authority to determine whether records in respect of which an access request is made fall under the exception set out in section 68.1, noting that not only does such an interpretation deny the Information Commissioner authority, but that it also denies one level of review in respect of a complaint to the person who has requested access.
The Federal Court distinguished Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, noting that the case involves the scope of a solicitor-client privilege rather than an exclusion. In addition, the principles stated in Blood Tribe relate to cases of information protected by the Privacy Act, the corollary of which is the opposite of the ATIA.
In examining sections 35, 36 and 37 of the ATIA, the Federal Court noted that the Information Commissioner has neither decision-making nor coercive power and that her investigations are private and confidential.
According to the Federal Court, disclosing records to the Information Commissioner does not amount to revealing them. Therefore, no harm would be caused to the CBC were they to be disclosed to the Information Commissioner. If there is disagreement between the CBC and the Information Commissioner once she has reached her conclusions, the CBC may take its disagreement before the Federal Court.
For more information please refer to the Federal Court on Canadian Broadcasting Corporation v. Canada (Information Commissioner)
Blank v. Canada (Justice)
Federal Court of Appeal
Date of Decision: July 8, 2010
Sections(s): 23 and 41 of the Access to Information Act
Origin
This is an appeal from the decision made by the Federal Court on November 30, 2009. In the application for judicial review and in this appeal, the appellant seeks access to records under the Access to Information Act (ATIA).
Facts
On January 21, 2002, the appellant first sought records from the respondent. The records concerned the respondent's conduct of a prosecution, later dropped, against the appellant and Gateway Industries Ltd. under the Fisheries Act.
Because of the need to process 67 additional requests from the appellant, and because many of the records were solicitor-client privileged requiring careful review, the processing of the request was lengthy. In response to the appellant's complaint, the Information Commissioner conducted a five year investigation before issuing a report on September 5, 2008. Two of the issues considered in the report were highly relevant to the appellant's application for judicial review in the Federal Court: the application of the solicitor-client privilege exemption in section 23 of the ATIA, and missing records.
On the solicitor-client privilege issue, the Office of the Information Commissioner concluded that s. 23 had been properly applied that "proper discretion was exercised" and "the privilege was not waived."
On the missing documents issue, the Office of the Information Commissioner observed that it sent one of its investigators to Winnipeg "to search through some 40 boxes of records to locate additional records" and that it found and released some records to the appellant. Later, after receiving a final release of documents, the appellant provided additional evidence to the Office of the Information Commissioner suggesting that documents were missing. The Office of the Information Commissioner made a second trip to Winnipeg for a follow-up search. In the end, on the missing documents issue, the Office of the Information Commissioner wrote the following in its investigation report:
Our investigation has revealed that, by their own admission, Justice officials cannot guarantee that all the records created were retained. Nor were we able to determine with certainty which records were, or could, be responsive to your request.
Based on the above, we are unable to definitively report to you that you have received all of the records to which you are entitled under the Act. We assure you that we have done everything possible to find relevant records and review them for possible release to you.
The appellant sought judicial review of the Minister's decision. The application was dismissed in a decision rendered on November 30, 2009. The appellant appealed.
Decision
The appeal was dismissed with costs.
Reasons for the Decision by the Federal Court of Canada
Question 1
Was solicitor-client privilege under section 23 of the ATIA properly interpreted and applied in this case and was the privilege waived by the Minister of Justice?
Answer 1
The Federal Court had concluded that the respondent was justified in claiming solicitor-client privilege over many documents. It added that the respondent appropriately severed privileged material from the documents, allowing portions of the documents to be revealed to the appellant. The Federal Court of Appeal agreed with the Federal Court's conclusion and saw no reviewable error in its reasons on this point.
The appellant's assertion that three particular pages "demonstrate misconduct" was purely speculative. The appellant had raised much of this alleged misconduct before the Manitoba Court of Queen's Bench in his prosecution. That Federal Court's reasons for judgment show no findings that can be said to constitute misconduct. Further, "misconduct" by itself is not a recognized exception to the privilege that the respondent asserts over the three pages. There is an exception for "communication[s] in furtherance of a criminal purpose" or to perpetuate a tort. However, this exception does not apply to the three pages that the appellant seeks. During the course of the hearing, the Federal Court of Appeal reviewed the three pages and concluded that there was no basis for the Federal Court of Appeal to overturn the Federal Court's conclusion that they were privileged. Further, these pages were not "communication[s] in furtherance of a criminal purpose" or to perpetuate a tort and so the documents remained privileged.
The Federal Court of Appeal found the issue of whether the respondent had waived privilege to be moot. The appellant already had these documents under other access requests and perhaps also at the hearing in the Federal Court of Appeal. Nothing in the record or submissions suggested that there was still a live controversy with practical import for the parties concerning these documents.
Question 2
Did the Department of Justice engage in bad faith or otherwise misconduct itself in carrying out its responsibilities under the ATIA?
Answer 2
The appellant had submitted, both in the Federal Court and in the Federal Court of Appeal that the respondent's decision was made in bad faith by Crown officials who were concerned about the appellant's ongoing civil action for damages against the Crown for fraud, conspiracy, perjury and abuse of powers. The appellant also submitted that under the ATIA the respondent should have disclosed to him material that was improperly withheld from him in the criminal prosecution, contrary to R. v. Stinchcombe.
The Federal Court had rejected these submissions. The appellant had previously made these submissions to some extent, unsuccessfully. Before the Federal Court the appellant had adduced no concrete evidence to support his allegations of bad faith. It was not the role of the Federal Court to decide whether the Crown had fulfilled its disclosure obligations in the criminal prosecution.
The Federal Court of Appeal substantially agreed with the reasons of the Federal Court. On the issue of whether there was bad faith in the respondent's processing of the access requests, the Federal Court had evidence capable of supporting the conclusion it made. The Federal Court of Appeal added that if the respondent had been acting in bad faith concerning the appellants' access requests, the Office of the Information Commissioner likely would have detected it in its five-year investigation and would have condemned it in its investigation report, but it did not.
Question 3
Has the appellant received everything to which he is entitled under the ATIA, or were some records still missing and unprocessed?
Answer 3
Both in the Federal Court and in the Federal Court of Appeal, the appellant had submitted that the respondent deliberately failed to locate and process all of the records that were responsive to his request. Although there was no evidence whatsoever to support deliberate misconduct by the respondent, the appellant's submission gained some force from the findings in the Office of the Information Commissioner's investigation report. However, the Federal Court had rejected the appellant's submission, finding that the efforts of the respondent and the Office of the Information Commissioner were significant and that they did everything they could to locate and produce documents to the appellant.
The Affidavit of the Department of Justice ATIP Director had been the primary basis for the Federal Court's factual findings on this point. Many of the statements in the affidavit were based not on personal knowledge or actual experience, but only on a "review of the file." Another judge of the Federal Court looking at the somewhat brief and unparticularized evidence in the affidavit might not have reached that conclusion with the same level of certainty, or might have reached a different conclusion.
However, on an appeal from a judgment on an application for judicial review, the Federal Court of Appeal is not allowed to reweigh the evidence or retry the facts. The facts as found by the Federal Court must be accepted by the Federal Court of Appeal, unless the appellant demonstrates palpable and overriding error.
The appellant had failed to demonstrate palpable and overriding error. There was evidence upon which the Federal Court could find that the respondent was compliant with its obligations to search, review, evaluate and produce available and releasable documents.
It was true that in its investigation report the Office of the Information Commissioner had found that documents were missing and that it had difficulty in determining with certainty which records were or could be responsive. This was not necessarily evidence demonstrating that the respondent was in contravention of its obligations under the ATIA. The Office of the Information Commissioner's report, which deserved to be given significant weight and had been before the Federal Court, said that "everything possible to find relevant records and review them for possible release" to the appellant had been done.
Finally, the appellant cross-examined the Department of Justice ATIP Director on her affidavit and a transcript of that cross-examination had been before the Federal Court and the Federal Court of Appeal. That cross-examination did not reveal instances of non-compliance that the Federal Court needed to address. Finally, in making its factual findings based on the evidence, the Federal Court had been mindful of the importance of the appellant's rights under the ATIA. The Federal Court had evaluated the appellant's submissions strongly considering right of access, but rejected the appellant's submissions, based on a review of the evidence in the record, without any legal error.
Question 4
Did the Federal Court err in refusing to impose a significant costs penalty on the Minister of Justice because of its allegedly heinous conduct?
Answer 4
In the Federal Court, the appellant submitted that a significant penalty should be imposed upon the respondent because of its heinous conduct. The Federal Court had rejected the appellant's submission and, instead, ordered costs against the appellant, consistent with the result on the application and the factual findings it made. The Federal Court of Appeal concluded that there were no grounds to interfere with the Federal Court's discretionary, fact-based costs decision. The Federal Court of Appeal ordered that costs follow the result of the appeal.
For more information please refer to the Federal Court of Appeal on Blank v. Canada (Justice)
Nault v. Canada (Public Works and Government Services)
Federal Court of Canada
Date of Decision: June 9, 2010
Sections(s): 2, 19, 41, and 48 of the Access to Information Act; S 3 and 8 of the Privacy Act
Origin
This is an application for judicial review of Public Works and Government Services Canada's (PWGSC) decision to deny access to documents containing the employment history of federal public servants prior to their entry into the Public Service.
Facts
The applicant, Mr. Nault, asked the respondent, PWGSC, for access to the documents (resumé, letter, proof of education) submitted by 61 candidates hired following a competition for the positions of financial systems analyst and financial analyst.
Following this request, the applicant received documents from which some information had been severed, PWGSC having judged that most of the documents requested were subject to the exception provided for in section 19 of the Access to Information Act (ATIA). Thus, only the information concerning the positions and functions of the 61 candidates within government institutions was disclosed, in accordance with paragraph 3(j) of the Privacy Act (PA). Information that some candidates consented to disclose was also disclosed to the applicant. The applicant filed a complaint with the Information Commissioner concerning this partial disclosure, criticizing, among other things, the fact that he had not received all of the information contained in the educational certificates and resumés of the candidates. The Information Commissioner dismissed the complaint, concluding that the personal information severed was not in the public domain. An application for judicial review was subsequently filed by the applicant.
Decision
The application for judicial review was dismissed. The court ordered PWGSC to review the information severed in order to ensure that all the information is disclosed in accordance with the reasons set out in the decision. Considering the nature and novelty of the issue, the Federal Court ordered each party to bear his own costs.
Reasons
Question 1
Is the employment history of federal public servants prior to their entry into the Public Service in the public domain private by virtue of the exception in paragraph 3(j) of the PA?
Answer 1
The Federal Court reaffirmed the standard of review applicable to the decision of the head of a federal institution that refuses to disclose information under section 3 of the PA and subsection 19(1) of the ATIA. That standard is correctness. The Federal Court noted that the information requested relates to the education, experience and skills of the candidates who were hired, prior to obtaining a position in a federal institution. Even if this information was considered to ensure the candidates had the required skills for the positions to be filled, this information concerns the candidates themselves. Thus, the Federal Court could not conclude that the information relating to the candidates' employment history (contained in their resumés, letters, proof of education) is information which also relates to "the position or functions" of the candidates and therefore can be excluded under paragraph 3(j) of the PA. Information about the candidates relating to the general characteristics directly associated with the position was disclosed to the applicant. The Federal Court noted that the purpose of paragraph 3(j) of the PA is to ensure that the state and its agents are held accountable for their actions and found that the candidates' files do not become public information simply by virtue of the fact that they were analyzed or examined by a federal public servant as part of his or her functions.
The Court also took into account the fact that Parliament did not refer to the expression "employment history" in the subparagraphs of 3(j), when it could have done so, having used it expressly in paragraph 3(b). The Federal Court also asked the respondent to re-examine the file to make sure that all the information relating to the positions and functions of candidates in government institutions is, in fact, disclosed.
For more information please refer to the Federal Court on Nault v. Canada
Canadian Association of Elizabeth Fry Societies v. Canada (Public Safety and Emergency Preparedness)
Federal Court of Canada
Date of Decision: April 29, 2010
Sections(s): 12(1), 22(1), and 26 of the Privacy Act and 10(b) Privacy Regulations
Origin
This is an application for judicial review of the Department of Public Safety and Emergency Preparedness's refusal to release personal information under the Privacy Act (PA).
Facts
On May 31, 2007, a 19-year old inmate of a federal penitentiary provided a written consent authorizing the Correctional Services of Canada (CSC) to disclose personal information with respect to her incarceration to the Executive Director of the Canadian Association of Elizabeth Fry Societies (CAEFS) and lawyer to enable them to assist her with her alleged mistreatment while in custody. On the basis of this consent, the Executive Director of CAEFS filed a request for access to specific information related to the inmate's incarceration on June 14, 2007, which was received by CSC on June 18, 2007. On July 18, 2007, CSC informed the Executive Director of CAEFS that a 30-day extension was being taken to process the request; however, CSC failed to complete processing of the request by the new deadline.
On September 24, 2007, the inmate sent a second consent and request for release of her information through CAEFS, stating the consent was in effect from September 24, 2007 to January 30, 2009.
On October 19, 2007, the inmate committed suicide. On May 23, 2008, counsel for CAEFS contacted CSC about the status of the request for records. CSC replied on May 26, 2008 that because of the inmate's death that all files related to her were exempt from disclosure. CAEFS then filed a complaint with the Privacy Commissioner on June 26, 2008.
The Privacy Commissioner concluded in her report on May 15, 2009 that the complaint was well founded. The Privacy Commissioner held that the death of the inmate did not vitiate her consent under the PA and that CSC had not properly invoked the exemptions. CAEFS then filed an application for judicial review in Federal Court.
The applicant argued that the consent given by the inmate had not been vitiated by the inmate's death and thus CAEFS was entitled to be given all of the requested information. The respondent made three submissions to the Court: a) The applicant no longer had standing to make a request for disclosure pursuant to section 12 of the PA on behalf of the inmate because her consent had been vitiated by her death; b) Personal information of a deceased individual is protected for a minimum of 20 years and can only be released for the purpose of administrating their estate, absent exceptional circumstances; and c) The applicant had a valid agency relationship on behalf of the inmate however that relationship ended upon her death.
The respondent adduced no evidence that explained the CSC's reasoning at the time it made its decision to refuse the applicant access on the basis of the inmate's passing. Its submissions on this issue were made de novo before the Court.
The respondent also argued that the fact that there was at one time an ongoing criminal investigation related to the inmate's death was sufficient to satisfy the requirements to exempt the records in their entirety.
Decision
The application for judicial review was allowed with costs on at least a solicitor-client basis to the applicant and the inmate's records ordered disclosed to the applicant forthwith.
Reasons for the Decision by the Federal Court of Canada
Question 1
Does the inmate's death vitiate her consent and authorization for the applicant to have access to her records?
Answer 1
The Court held that the law of agency or standing had no application to the facts at bar. The PA, similar to the Access to Information Act, R.S.C. 1985, c. A-1, is a complete code of procedure. The application was properly brought by the applicant before the Court pursuant to section 41 of the PA. Section 41 of the PA allows "any individual" or "complainant" who has been refused access under this Act to apply to the Court following receipt of the Commissioner's report. Section 41 encompasses by reference subsection 29(2), which allows anyone who is authorized to act on behalf of the individual whose records have been requested to complain to the Commissioner.
Regardless of the relevant date of the decision which was being reviewed, the Federal Court concluded that the applicant has standing to bring the application. On August 17, 2007, the inmate had not yet died, and the applicant clearly had standing. On May 26, 2008, the Federal Court was satisfied that the consent was not intended to lapse or be of no force and effect because the inmate had died. The consent had a valid purpose when it was given by the inmate on June 18, 2007 and that purpose continued after the inmate's death. That purpose was to explore how the penitentiary authorities were treating the inmate. It was deemed that the exploration may assist the applicant in learning how to deal with other female prisoners like the inmate in the future.
In the Federal Court's view, subsection 10(b) of the Privacy Regulations does not bar the release of any deceased person's personal information, except "for the purpose of administrating their estate". This subsection is simply an avenue of access to a deceased person's personal information by the deceased person's estate without any means of ascertaining consent. Section 10 of the Privacy Regulations provides for three avenues of access to another person's personal information. Subsections 10(a) and (b) are very different from subsection 10(c). The first two subsections grant access without consent to another individual's personal information for limited purpose. The third subsection grants access to any person authorized in writing for any purpose. Subsection 10(c) is broad enough to encompass authorization by a person who is no longer alive. As long as the consent is in writing, the requesting party can rely on subsection 10(c) regardless of the individual's living status.
The inmate's consent was valid despite the lapse of time. The respondent was deemed to have refused her validly consented and authorized request on August 17, 2007. The refusal to provide access was a continuous refusal which was not interrupted by the act of complaining to the Privacy Commissioner and the subsequent issuance of a report.
Subsection 16(3) of the PA deemed the respondent to have refused the request for disclosure following the expiry of the time limits under the Act. In this case, the expiry of the time limit took place on August 17, 2007, and for the purpose of this judicial review, the Federal Court was satisfied that this was the key date under the law upon which the Federal Court should review the decision of the respondent to refuse access to the applicant. At this date, no death had occurred and there could be no argument that the death vitiated the consent.
The respondent's failure to provide the personal information to the applicant within the 30-day extension was a breach of sections 14 and 15 of the PA. Section 14 of the PA provides that the requester shall be given access to his or her personal information within 30 days. Section 15 of the PA provides that the government institution may extend this time limit to a maximum of 30 days if meeting the original time limit would unreasonably interfere with the operations of the government institution. It is unreasonable that the respondent would delay the disclosure of these personal records, and then argue that the consent and authorization for the disclosure was vitiated upon the suicide of the inmate 62 days after the personal information was legally required by the respondent to be produced to the applicant. The fact that the delay was "normal", as the respondent submitted, did not excuse the respondent from being in breach of the law by not fulfilling the request within the prescribed time period under the PA.
Question 2
Can the respondent rely on the Royal Canadian Mounted Police (RCMP) criminal investigation to exempt the personal records from disclosure under subsection 22(1) (b) of the PA?
Answer 2
The case law is clear: the Federal Court will not infer injurious harm on a theoretical basis from the mere presence of an investigation, whether past or present, without evidence of a nexus between the requested disclosure and a reasonable expectation of probable harm.
There was no investigation in place on August 17, 2007, the date that the respondent is deemed to have refused the applicant access to the personal information of the inmate under sections 14 and 15 of the PA. As communicated to the applicant by letter dated May 26, 2008, it was clear that this short letter provided no explanation, did not provide sufficient evidence to support a subsection 22(1)(b) exemption, did not set out how the disclosure of the personal information could reasonably have caused injury to the criminal investigation, and provided no rationale for the exemption. This letter did not provide a valid basis to claim the exemption because it did not provide concrete reasons which met the requirements imposed by subsection 22(1)(b), did not provide what was the reasonable expectation of injury from the disclosure, did not provide any specific facts to establish any likelihood of injury to the investigation, and did not provide what would be the harmful consequences of disclosing the personal information. Moreover, after the case was commenced, when the witness for the respondent filed his affidavit, the investigation had been concluded and this basis for the exemption had passed. When the affidavit was sworn, the deponent did not state that the investigation was over, and continued to suggest that this exemption was still valid.
At the time the request was deemed refused, on August 17, 2007, there was no investigation. Subsection 22(1)(b) could not have applied. The Federal Court was asked to take judicial notice of the fact that the investigation around May 26, 2008 into the inmate's death led to criminal charges against four CSC employees. The respondent submitted that the CSC's decision to exempt the inmate's records from disclosure were therefore reasonable at the time. The Federal Court could not agree with this submission. The investigation did not relate to the information in the requested records, which predated the inmate's death by a few months.
Lastly, the Federal Court was carrying out a review of the matter de novo. It was clear that there were no ongoing investigations or criminal proceedings where disclosure of the requested materials could cause injurious harm.
For more information please refer to the Federal Court on Canadian Association of Elizabeth Fry Societies v. Canada (Public Safety and Emergency Preparedness)
Provincial Airlines Ltd. v. Canada (Attorney General)
Federal Court of Canada
Date of Decision: March 16, 2010
Sections(s): 20(1(b), (c) and (d), 44 Access to Information Act
Origin
This is an application for judicial review of a decision by Public Works and Government Services Canada (PWGSC) to permit the disclosure of certain records pursuant to a request made under the Access to Information Act (ATIA).
Facts
The applicant has provided maritime aerial surveillance services under a series of contracts to the Department of Fisheries and Oceans (DFO). The information collected by the surveillance services is shared with the Department of National Defence (DND), Royal Canadian Mounted Police (RCMP) and other organizations for detection of illegal fishing, drug offences, and national defence purposes. Under the contract, the applicant is required to meet security requirements including clearances from the Canadian Industrial Security Directorate (CISD) of PWGSC.
PWGSC received an ATIA request for access to the "Third-Party review of active PWGSC files to ensure procedures were followed under the Industrial Security Program, as per the Department's Report on Plans and Priorities: 2008-2009. "Within the scope of this request fell a report prepared by Deloitte and Touche for PWGSC" to assess the possibility of potential or actual security breaches in 355 PWGSC active files". Two pages in an appendix to this report contained information concerning the applicant's then current security clearances, expressed an opinion about the applicant's level of security, and discussed the applicant's request for an upgrade of its security clearance in anticipation of the renewal of its contract.
PWGSC consulted with relevant government institutions about the intended disclosure and no objections to disclosure were registered. Thus, PWGSC gave the applicant notice under s. 27, asking for written representations on whether the records should be disclosed. The applicant objected to the disclosure of the records on the grounds that they were exempt under subsection 20(1) as well as sections 15 and 16. Shortly thereafter, PWGSC informed the applicant of their decision to disclose the records in full without giving reasons for its decision. The applicant sought judicial review of this decision.
At trial, the applicant relied solely on subsection 20(1) to argue for the non-disclosure of the impugned records. The applicant submitted that paragraph 20(1)(b) applied as the records contained confidential commercial information supplied by the applicant to the government in confidence. The applicant submitted that the information was "commercial" as that term is understood. The applicant possessed various security clearances that it required to carry out its business commercial contracts with DFO. The applicant argued that the information surrounding its security status, the reasons it applied for increased security status and information relating to how the applicant dealt with "protected" information was confidential. Finally, the applicant argued that its security status constituted confidential information since the relevant CISD manual prohibited public disclosure of its security status.
The applicant submitted that because it provided maritime aerial surveillance services and processed sensitive information for other clients, there was a reasonable probability that disclosure of the records would damage the applicant's good will and reputation in the industry, causing prejudice to its competitive position and material financial loss. Disclosure would also identify the applicant as a target for infiltration and would inform potential threats of the types of sensitive information it dealt with. Thus, the information was exempt from disclosure under paragraph 20(1)(c).
Finally, the applicant submitted that any suggestion that it was or had not been compliant with contractual requirements for security status clearances could obstruct the awarding of a new DFO contract or other new contracts. Thus, the information was exempt under paragraph 20(1)(d).
Decision
The application was dismissed with costs to the respondent.
Reasons for the Decision by the Federal Court of Canada
Question 1
Were the impugned records exempt from disclosure under paragraph 20(1)(b)?
Answer 1
A security designation assigned by the government does not in itself pertain to trade or commerce. Such security designations relate to safeguarding of information rather than engaging in trade or commerce. Government security clearances are information related to an enterprise's capacity to maintain confidentiality rather than related to the ongoing conduct of business. As such, a security clearance is not commercial information as intended by paragraph 20(1)(b) of the Act. The Federal Court took the same view with respect to the applicant's request for an upgrade in the security requirement of the DFO contract and a sponsorship request submitted to CISD for greater security clearances in relation to the upcoming contract.
There is no expectation that documents submitted on a bid for a contract will be insulated from the government's obligations to disclose as part of its accountability for spending public funds. Information is not confidential, even if the third party considered it so, where it has been available to the public from some other source, or where it has been available at an earlier time or in another form from government. Information is not confidential where it could be obtained by observation albeit with more effort by the requestor.
The respondent's evidence disclosed the tender documents for the renewed DFO contract awarded to the applicant, set out the required security designations and stated that the successful bidder must hold a particular security clearance. Since the applicant was successful in obtaining the contract renewal, its security clearance was implicitly revealed. The Federal Court was also mindful that the interested government agencies did not object to disclosure of the designation. While the relevant CISD manual required the applicant to not publicly disclose its security status, it could not constrain the government from doing so when it decides to, in compliance with a lawful requirement to release the information under the Act.
Security clearances are the government's assessment of the applicant's security. The security clearances in question were provided by the government to the applicant. The process by which the applicant informed PWGSC of its security clearance status does not change that the source of the security clearances is the government itself. At best, the applicant's provision of information about security clearance status merely confirmed that the government assessed its security. Therefore, the information about the applicant's security clearances were not exempt under paragraph 20(1)(b).
Question 2
Were the impugned records exempt from disclosure under paragraphs 20(1)(c) or (d)?
Answer 2
The applicant's submissions concerning the prospect of infiltration were deemed entirely speculative. The applicant publicizes its business on its website including that its DFO Air Surveillance program benefits DFO, the Coast Guard, DND, RCMP and the Canada Border Service Agency (CBSA). In the Federal Court's view, the release of the impugned information would not add to any greater risk of infiltration for the applicant than it must already face given the nature of its business. Moreover, the applicant necessarily deals with a sophisticated clientele who are not likely to misinterpret the information about which the applicant has expressed concern. Thus, the applicant had failed to meet its burden of establishing the application of paragraph 20(1)(c).
The answer to the applicant's argument regarding paragraph 20(1)(d) was that the government had in hand the information in question and that information did not interfere with the applicant's success in securing the renewal of its contract. The applicant did not offer any evidence to support the argument that the information would interfere with post-contract award negotiations on implementation of the contract.
For more information please refer to the Federal Court on Provincial Airlines Ltd. V. Canada (Attorney General)
Bernard v. Canada (Attorney General)
Federal Court of Appeal
Date of Decision: February 8, 2010
Sections(s): 8 Privacy Act
Origin
This is an appeal from the decision made by the Public Service Labour Relations Board on February 21, 2008. It is regarding the release of personal information without consent, under the Privacy Act (PA).
Facts
Ms. Bernard has been a federal public servant since 1991 and, in all that time, she has declined to join the union which represents the members of her bargaining unit. In other words, she is an employee who pays union dues but who is not a voting member of the union.
This application for judicial review arises because the Public Service Labour Relations Board has ordered her employer to provide her home address and her home phone number to the union which represents her bargaining unit (the union). The applicant argues that this is a violation of her privacy rights as well as a violation of her constitutional right to freedom of association which includes the freedom to refrain from association. Section 8 of the PA states that 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.
The Public Service Labour Relations Board's order required the employer to provide the union, on a quarterly basis, the home mailing addresses and home telephone numbers of all bargaining unit employees which the employer has in its human resources information systems.
The applicant first learned of the order on October 20, 2008 and quickly brought a successful motion for an extension of time within which to bring an application for judicial review.
The applicant challenged the Board's decision on the basis that it requires the employer to violate the provisions of the Privacy Act, R.S.C. 1985, c. P-5, since she had not consented to the release of her personal information to the union.
Decision
The Federal Court of Appeal ordered the Public Service Labour Relations Board to re-consider the kind of information which the employer must provide to the union and give notice of the new hearing to the Office of the Privacy Commissioner and the applicant.
Reasons for the Decision by the Federal Court of Canada
Question 1
What kind of information is the employer required to provide to a union representing some of its employees?
Answer 1
The court said that, by the Public Service Labour Relations Board's own admission, these were questions which required further submissions and, perhaps, further evidence. In light of this, the Public Service Labour Relations Board erred in simply adopting, without analysis, the agreement between the employers and the union by which the union was to receive on a quarterly basis, out of all the information it requested, only that information which was fully protected under the Privacy Act. Even on the more deferential standard of review of reasonableness, this decision could not stand.
For more information please refer to the Federal Court of Appeal on Bernard v. Canada (Attorney General)
Dagg v. Canada (Industry)
Federal Court of Canada
Date of Decision: December 11, 2009
Sections(s): 2, 4, 7, 9(1), 10(3), 41, 44, 49, 50, 53 Access to Information Act
Origin
The underlying application is for judicial review regarding the Department of Industry Canada's (IC) refusal to disclose records, under the Access to Information Act (ATIA). The applicant also brought a motion for declaratory relief and for costs.
Facts
The applicant, Mr. Dagg, made a request for access to information to IC (January 15, 2008), who then requested to invoke its discretion to extend the time limit to respond to the request.
After the first extension, IC informed Mr. Dagg that it required an additional 150 days to process the request. Two months after the expiration of the additional delay, Mr. Dagg filed a complaint with the Information Commissioner, regarding the failure of IC to disclose the requested records (October 27, 2008).
After conducting its investigation, the Information Commissioner informed Mr. Dagg that IC had no "lawful justification" for failing to meet the deadline for response and that IC was in a state of deemed refusal. (July 10, 2009). However, the Information Commissioner also informed Mr. Dagg that it had received a work plan and commitment date from IC for responding to the request (by September 2009). On that basis, the Information Commissioner deemed the complaint to be resolved. In its report, the Information Commissioner described two potential avenues of recourse for Mr. Dagg: to file a new complaint, should he not receive a final response on or by the date provided, or to apply to the Federal Court for a review of IC's decision to deny access to the requested records, should Mr. Dagg disagree with the Information Commissioner's assessment that the commitment and work plan constitutes a reasonable resolution to his complaint.
Without waiting for the expiration of the commitment date given by IC, to comply with the 45-day time limitation, Mr. Dagg chose to bring an application for judicial review of IC's alleged decision to deny his right of access to the requested records (August 21, 2009). IC ultimately complied with the request for access and sent the records to Mr. Dagg at the end of September 2009.
Mr. Dagg received the records requested in early October 2009 and on November 26, 2009, decided to bring a motion for declaratory relief and costs, on the basis that he would not have brought a judicial review and incurred legal costs if IC had provided a response in a timely delay.
Decision
Justice Pinard concluded that the Information Commissioner cured the deemed refusal by approving a new delay period for IC to comply with the request and that Mr. Dagg's application for judicial review was premature as there was no refusal. The judge dismissed the motion for declaratory relief without costs against either party.
Comment
Mr. Dagg has filed a notice to appeal the decision to the Federal Court of Appeal.
Reasons for the Decision by the Federal Court of Canada
Question 1
Did the respondent refuse to disclose the records requested by the applicant such that the Federal Court had jurisdiction to review the matter pursuant to section 41 of the ATIA at the time the application was filed? Section 41 states that an applicant may apply to the Court if he or she has been refused access to a record and has complained to the Information Commissioner in respect of that refusal.
Answer 1
The Federal Court focused on the deemed refusal provision (subsection 10 (3) of the ATIA), which applies where an institution fails to provide access to records within the time limits set out in the ATIA.
The Federal Court examined three previous decisions that discuss the legal significance of the deemed refusal provision: X(1), X(2) and Statham. In X(1): X v. Canada (Minister of National Defence) (1990), 41 F.T.R., Justice Dubé interpreted subsection 10(3) as signalling Parliament's intent that the Act not be "frustrated by bureaucratic procrastination: foot-dragging equates refusal". In the end, Justice Dubé declined to grant judgement and to grant declaratory relief because access to the records had been provided by the time of the hearing. The Court nevertheless granted taxable legal costs to the applicant. In X(2): X v. Canada (Minister of National Defence), [1991] 1 F.C. 670, Justice Strayer dismissed the application of X against National Defence concluding that there was "neither a refusal of access nor a deemed refusal (the two grounds upon which an applicant can seek judicial review), because access was given before it determined that the decision of a government institution under subsection 9(1) to extend the time to respond to a request was not reviewable by the Federal Court under section 41 of the ATIA. In Statham v. President of the Canadian Broadcasting Corporation et al., 2009 FC 1028, a case against the CBC where the facts are similar to this one, Justice de Montigny concluded that the OIC could cure a deemed refusal by approving a "commitment date". The commitment date then becomes a time limit set out in this Act, as referred to in subsection 10(3). A notice of appeal of that decision was filed by the applicant on November 12, 2009.
Applying the reasoning of Justice de Montigny in Statham to the present case, Justice Pinard concluded that IC could not have been in a deemed refusal situation when Dagg filed his application for judicial review, as it had set a work plan and commitment date with the Information Commissioner to respond to the request. Justice Pinard concluded that the Information Commissioner cured the deemed refusal by approving a new delay period for IC to comply with the request and that Dagg's application for judicial review was premature as there was no refusal (or deemed refusal) under section 41 of the ATIA.
Question 2
Should the Federal Court exercise its discretion to award costs?
Answer 2
The judge dismissed the motion and did not award costs against either party, on the basis that the Federal Court had no jurisdiction to hear the application for judicial review but that the law in this area had yet to be determined by the Federal Court of Appeal.
For more information please refer to the Federal Court on Dagg v. Canada (Industry)
Brainhunter (Ottawa) Inc. v. Canada (Attorney General)
Federal Court of Canada
Date of Decision: November 17, 2009
Sections(s): 19(1), 20(1)(b), 20(1)(c), 44 and 51 Access to Information Act
Origin
This is an application for judicial review of the Attorney General of Canada and the Department of Public Works and Government Services (PWGSC) regarding the disclosure of certain records under the Access to Information Act (ATIA).
Facts
The respondent, PWGSC, issued a solicitation which commenced a tender process for the provision of informational technology services. The tender process was initiated by way of a request for proposals (RFP). The applicant submitted a bid in response to the RFP and was later awarded the contract.
Subsequently, PWGSC received a request under the ATIA seeking disclosure of the winning proposals for the tender process. The applicant was identified as being a third party affected by the request and therefore submitted representations objecting to the release of the whole bid on the basis that the information contained therein fell within the exemptions listed in subsection of the ATIA. PWGSC concluded that the applicant's bid would be partially exempt from disclosure.
The applicant seeks an order of the Federal Court prohibiting PWGSC from disclosing the records in question.
Decision
The application is dismissed with costs in favour of the respondents. References to the positions occupied by unnamed individuals is not personal information and information pertained exclusively to the way in which various candidates satisfied the mandatory requirements for the positions set out in the request for proposals (RFP) is not considered commercial in nature.
Reasons for the Decision by the Federal Court of Canada
Question 1
Does the record contain personal information?
Answer 1
The Federal Court found that the information concerning past contracts with governmental organizations was not "about" any "identifiable individual", it simply comprised references to the positions occupied by unnamed individuals. Moreover, the applicant used the exact language provided in the RFP with regard to the mandatory requirements for the various positions to demonstrate that their proposed candidates had the required technical experience. The only unique information consisted of the numbers of years of experience each individual candidate had in relation to the mandatory requirement. Details regarding the particular projects were also redacted. The Court concluded that it was unlikely that anyone would be able to discover the identities of these particular individuals simply based on the information provided.
Question 2
Does the record contain confidential commercial information?
Answer 2
The record in question did not relate to trade or commerce, but reflected the basic fact that the Applicant wanted to engage in a business transaction with the government. The remaining information pertained exclusively to the way in which various candidates satisfied the mandatory requirements for the positions set out in the RFP. The Federal Court found that by itself this information was not considered commercial in nature. Moreover, the applicant failed to provide actual direct evidence of any specific confidential commercial information. The existence of a confidentiality statement was not by itself determinative of the reasonableness of the assertion made by the Applicant, especially in light of the fact that the records were created in the context of a professional bid involving the expenditure of public funds. As a result, the Federal Court found that the remaining information contained in the record should not be exempted from disclosure.
Question 3
Would disclosure of the remaining information prejudice the applicant's competitive position?
Answer 3
The Federal Court concluded that the applicant had failed to provide evidence that there existed a reasonable expectation of probable harm if the record was released. The Applicant's allegations were found to be based on speculation and assertions about the uniqueness of their bid proposals without specifically referencing information in the record. The Federal Court found that a large portion of the remaining information simply repeated the template used by PWGSC in its RFP, which was already a public document, and that there was no evidence that the applicant's claimed "know-how" in drafting government bids was unique to their company. The applicant failed to establish on a balance of probabilities, that there was a reasonable expectation of competitive prejudice if the remaining information contained in the record was disclosed by PWGSC.
For more information please refer to the Federal Court on Brainhunter (Ottawa) Inc. v. Canada (Attorney General)
