UCANU Manufacturing Corp. v. Defence Construction Canada

UCANU Manufacturing Corp. v. Defence Construction Canada
Court (s) Database
Federal Court Decisions
Date
2015-08-24
Neutral citation
2015 FC 1001
File numbers
T-694-14
Decision Content
Date: 20150824
Docket: T-694-14
Citation: 2015 FC 1001
Ottawa, Ontario, August 24, 2015
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
UCANU MANUFACTURING CORP.
Applicant
and
JAMES PAUL IN HIS CAPACITY AS PRESIDENT OF DEFENCE CONSTRUCTION (1951) LIMITED A.K.A. DEFENCE CONSTRUCTION CANADA; THE SAID DEFENCE CONSTRUCTION (1951) LIMITED A.K.A. DEFENCE CONSTRUCTION CANADA; AND THE ATTORNEY GENERAL OF CANADA
Respondents
JUDGMENT AND REASONS
[1] This is an application brought pursuant to section 41 of the Access to Information Act, RSC 1985, c A-1 [ATIA] concerning a request for access to certain records under the control of the respondent, Defence Construction (1951) Limited, a.k.a. Defence Construction Canada [the respondent]. The context is a public procurement for construction of a maintenance hangar in Trenton, Ontario.
[2] The applicant seeks an order directing the respondent to disclose in full certain of the requested records that were redacted in the course of the respondent’s disclosure. For the reasons that follow, this application is allowed in part.
I. Background [3] The applicant is a corporation incorporated under the laws of the province of Alberta. The respondent is a parent Crown corporation within the meaning of section 83 of the Financial Administration Act, RSC 1985, c F-11 and a government institution within the meaning of the ATIA.
[4] On July 30, 2012, the applicant made an access to information request to “National Defence and the Canadian Forces” seeking information relating to a contract between the respondent and “Graham Construction and Engineering a JV”.
[5] On August 16, 2012, the Director of Access to Information and Privacy of the Department of National Defence transferred the request to the respondent.
[6] On September 6, 2012, the respondent provided the applicant with a CD containing 3650 pages of records in response to the request and further advised the applicant that remaining documents would not be released until third party consultations were completed.
[7] On November 9, 2012, following consultation with The Graham Group (which appears to represent the counterparty to the relevant contract with the respondent), the respondent released to the applicant a package of 17 redacted pages of records. The respondent’s correspondence advised the applicant that it had exempted some information pursuant to ss. 19(1) and 20(1)(b) of the ATIA. As further detailed below, these exemptions relate, respectively, to personal information as defined in the Privacy Act, RSC 1985, c P-21 [Privacy Act] and confidential commercial information of a third party.
[8] On January 11, 2013, the Office of the Information Commissioner of Canada [OIC] registered a complaint from the applicant concerning the respondent’s application of the exemptions. During the subsequent investigation by the OIC, the respondent consulted with The Graham Group in relation to the request.
[9] The OIC conducted its investigation and did not agree, in some cases, with the respondent’s application of the exemptions in ss. 19(1) and 20(1)(b) of the ATIA. The respondent agreed to reconsider its positions and, on December 3, 2013, it provided the applicant with a final release package in which some of the previously redacted records were disclosed.
[10] The remaining redactions, which are challenged by the applicant in this application, are:
A. portions of a Joint Venture Agreement dated February 1, 2011 among Graham Construction and Engineering LP, Graham Construction and Engineering Inc. and Jardeg Construction Services Ltd. [the Joint Venture Agreement];
B. a covering letter dated March 25, 2011 from The Graham Group to the respondent, which accompanied the Joint Venture Agreement;
C. the signatures of employees of Graham Construction and Engineering LP, Graham Construction and Engineering Inc. and Jardeg Construction Services, who signed the Joint Venture Agreement; and
D. the name and signature of a witness to the Tender Form signed by Graham Construction and Engineering, a JV and submitted to the respondent in the course of the respondent’s tender process for the contract for construction of the maintenance hangar.
[11] On February 11, 2014, the OIC issued its investigation report concluding that, with the benefit of the disclosure in the final release package, the respondent had properly applied these exemptions.
[12] On March 19, 2014, the applicant filed this application for review of this matter.
II. Issues [13] Based on the Memoranda of Fact and Law filed by the parties, the issues in this application are as follows:
A. What is the standard of review?
B. Does the information withheld on the basis of ss. 19(1) of the ATIA, namely the signatures of the parties to the Joint Venture Agreement and the name and signature of the witness to the Tender Form, properly constitute “personal information” as defined in section 3 of the Privacy Act?
C. Does ss. 19(2) of the Privacy Act apply to the signatures of the parties to the Joint Venture Agreement, on the basis that the information is publicly available and, if so, did the respondent reasonably exercise its discretion under subsection 19(2) of the ATIA to withhold this information?
D. Is the information withheld under ss. 20(1)(b) of the ATIA, namely the redacted portions of the Joint Venture Agreement and covering letter, confidential commercial information of a third party such that the respondent was authorized to refuse to disclose it?
E. Was the decision of the respondent reasonable in not severing and disclosing additional portions of the disputed records under section 25 of the ATIA?
[14] There is also a further set of issues, raised in the week preceding the hearing, which the Court is required to address. By letter dated July 8, 2015, five days in advance of the scheduled July 13, 2015 hearing of this application, the respondent’s counsel requested an adjournment of the hearing, on the basis that she had recently taken carriage of this matter and identified an exemption under the ATIA and Defence Production Act, RSC 1985, cD-1 [DPA] that had not previously been relied on by the respondent. This exemption, pursuant to ss. 24(1) of the ATIA and s.30 of the DPA, applies to information with respect to an individual business that has been obtained under or by virtue of the DPA.
[15] The respondent sought an adjournment to permit further materials including supplementary submissions by the parties on this new issue to be placed before the Court prior to the hearing. By letter dated July 8, 2015, the applicant advised that it opposed the request for an adjournment and noted that the statutory exemption now raised by the respondent had not been previously relied on by the respondent in this matter including in the respondent’s initial response to the applicant’s request under the ATIA.
[16] By Order dated July 9, 2015, being guided by the Notice to the Profession issued by Chief Justice Crampton dated May 8, 2013, I denied the request for an adjournment, on the basis that the request did not raise exceptional and unforeseen circumstances, including those that are outside the control of a party or its counsel. However, my Order advised that I would hear counsel at the hearing, including on the possibility of supplementary written submissions following the hearing, on the following two issues that I concluded were raised by their correspondence with the Court:
A. whether the respondent should be permitted to rely on the additional statutory exemption at this stage in the proceeding; and
B. if so, the effect of such exemption on the merits of this application.
[17] The parties argued these issues at the hearing and confirmed to the Court at the conclusion of the hearing that the issues had been sufficiently canvassed, such that no further written submissions were necessary.
III. Relevant Statutory Provisions [18] The statutory provisions relevant to this application are as follows:
Access to Information Act, RSC 1985, c A-1
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
[…]
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
[…]
24.(1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
(2) Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
19. (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant les renseignements personnels visés à l’article 3 de la Loi sur la protection des renseignements personnels.
(2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
a) l’individu qu’ils concernent y consent;
b) le public y a accès;
c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
20. (1) Le responsable d’une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant :
[…]
b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers;
[…]
24. (1) Le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant des renseignements dont la communication est restreinte en vertu d’une disposition figurant à l’annexe II.
(2) Le comité prévu à l’article 75 examine toutes les dispositions figurant à l’annexe II et dépose devant le Parlement un rapport portant sur la nécessité de ces dispositions, ou sur la mesure dans laquelle elles doivent être conservées, au plus tard le 1er juillet 1986, ou, si le Parlement ne siège pas, dans les quinze premiers jours de séance ultérieurs.
25. Le responsable d’une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s’autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d’en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
Privacy Act, RSC 1985, c P-21
3.
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual,
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or employee of the government institution,
(ii) the title, business address and telephone number of the individual,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(v) the personal opinions or views of the individual given in the course of employment,
(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,
(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and
(m) information about an individual who has been dead for more than twenty years;
3.
« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
a) les renseignements relatifs à sa race, à son origine nationale ou ethnique, à sa couleur, à sa religion, à son âge ou à sa situation de famille;
b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
d) son adresse, ses empreintes digitales ou son groupe sanguin;
e) ses opinions ou ses idées personnelles, à l’exclusion de celles qui portent sur un autre individu ou sur une proposition de subvention, de récompense ou de prix à octroyer à un autre individu par une institution fédérale, ou subdivision de celle-ci visée par règlement;
f) toute correspondance de nature, implicitement ou explicitement, privée ou confidentielle envoyée par lui à une institution fédérale, ainsi que les réponses de l’institution dans la mesure où elles révèlent le contenu de la correspondance de l’expéditeur;
g) les idées ou opinions d’autrui sur lui;
h) les idées ou opinions d’un autre individu qui portent sur une proposition de subvention, de récompense ou de prix à lui octroyer par une institution, ou subdivision de celle-ci, visée à l’alinéa e), à l’exclusion du nom de cet autre individu si ce nom est mentionné avec les idées ou opinions;
i) son nom lorsque celui-ci est mentionné avec d’autres renseignements personnels le concernant ou lorsque la seule divulgation du nom révélerait des renseignements à son sujet;toutefois, il demeure entendu que, pour l’application des articles 7, 8 et 26, et de l’article 19 de la Loi sur l’accès à l’information, les renseignements personnels ne comprennent pas les renseignements concernant :
j) un cadre ou employé, actuel ou ancien, d’une institution fédérale et portant sur son poste ou ses fonctions, notamment :
(i) le fait même qu’il est ou a été employé par l’institution,
(ii) son titre et les adresse et numéro de téléphone de son lieu de travail,
(iii) la classification, l’éventail des salaires et les attributions de son poste,
(iv) son nom lorsque celui-ci figure sur un document qu’il a établi au cours de son emploi,
(v) les idées et opinions personnelles qu’il a exprimées au cours de son emploi;
k) un individu qui, au titre d’un contrat, assure ou a assuré la prestation de services à une institution fédérale et portant sur la nature de la prestation, notamment les conditions du contrat, le nom de l’individu ainsi que les idées et opinions personnelles qu’il a exprimées au cours de la prestation;
l) des avantages financiers facultatifs, notamment la délivrance d’un permis ou d’une licence accordés à un individu, y compris le nom de celui-ci et la nature précise de ces avantages;
m) un individu décédé depuis plus de vingt ans.
Defence Production Act, R.S.C. 1985, c.D-1
30. No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business, except
(a) to a government department, or any person authorized by a government department, requiring the information for the purpose of the discharge of the functions of that department; or
(b) for the purposes of any prosecution for an offence under this Act or, with the consent of the Minister, for the purposes of any civil suit or other proceeding at law.
30. Les renseignements recueillis sur une entreprise dans le cadre de la présente loi ne peuvent être communiqués sans le consentement de l’exploitant de l’entreprise, sauf :
a) à un ministère, ou à une personne autorisée par un ministère, qui en a besoin pour l’accomplissement de ses fonctions;
b) aux fins de toute poursuite pour infraction à la présente loi ou, avec le consentement du ministre, de toute affaire civile ou autre procédure judiciaire.
IV. Applicant’s Memorandum of Fact and Law [19] The applicant submits the proper standard of review for a refusal to disclose requested documents is correctness (Brainhunter (Ottawa) Inc v Canada (Attorney General), 2009 FC 1172 at para 11 [Brainhunter]). It argues that, pursuant to section 48 of the ATIA, it is the respondent’s burden to establish that the withheld records are properly excluded and that discharging this burden requires specific and detailed evidence (Brainhunter, at para 13).
[20] The applicant’s position is that the information withheld on the basis that it is personal information, namely the signatures of two signatories to the Joint Venture Agreement and the name and signature of the witness to the Tender Form, does not properly fall within the scope of the exemptions under s. 19 of the ATIA.
[21] The applicant refers to decisions of the Information and Privacy Commissioner of Ontario that information associated with an individual in their professional, official, or business capacity is generally not considered to be “about” the individual for purposes of the substantially similar definition of “personal information” under Ontario’s privacy legislation (see Corporation of the City of Pembroke (Re) (Order MO-2611), 2011 CanLII 20310 (ON IPC) [Pembroke]; Ontario Parks Board of Directors (Re) (Order PO-3277), 2013 CanLII 75976 (ON IPC); and Corporation of the Town of Orangeville (Re) (Order MO-3044), 2014 CanLII 24524 (ON IPC)). Alberta’s Office of the Information and Privacy Commissioner has reached similar conclusions regarding signatures on business records (See Alberta Transportation (Re) (Order F2012-15), 2012 CanLII 70620 (AB OIPC) at paras 132-133, 143).
[22] The applicant also argues that the names and signatures withheld by the respondent fall under the exception set out in paragraph (k) of the definition of “personal information” under the Privacy Act, because they concern individuals involved in the performance of services under contract for a government institution. The applicant refers to this exception as representing a policy decision by Parliament that there are overriding public interest reasons for disclosure of information related to such individuals (See Sutherland v Canada (Minister of Indian and Northern Affairs), [1994] 3 FC 527 at para 17).
[23] The applicant submits that, even where a record is shown to be prima facie personal information, the party resisting disclosure retains the burden of establishing that it does not fall within any of the exceptions set out in the definition of “personal information” and of establishing that he or she is authorized to refuse to disclose a requested record (Dagg v Canada (Minister of Finance), [1997] 2 SCR 403 at para 90 [Dagg]).
[24] In the alternative, the applicant argues that, even if the signatures on the Joint Venture Agreement are found to constitute personal information, they nevertheless ought to be disclosed because the information is already publicly available. The applicant’s affidavit filed in support of this application demonstrates that such signatures are publicly available in other business-related documents which were signed in a professional capacity. The applicant points out that one of the signatures is available on publicly accessible court documents and the other is accessible on a collective bargaining agreement available on a public website.
[25] Turning to the content of the Joint Venture Agreement, the applicant submits that the withheld information does not properly fall within the scope of the exemptions under s. 20 of the ATIA. Section 20 sets out mandatory exemptions with respect to third party information. There are three requirements under the ss. 20(1)(b) exemption. The information must be: i) financial, commercial, scientific or technical information; ii) confidential and consistently treated in a confidential manner by the third party; and, iii) supplied to a government institution by a third party (Brainhunter, at para 21). The applicant argues that the first two requirements are not met.
[26] It argues, first, not all of the information in the Joint Venture Agreement and its accompanying covering letter is properly characterized as commercial information. The applicant points to a disclosed portion of the covering letter to indicate that the contents of at least portions of the Joint Venture Agreement relate to administrative and management responsibilities and are therefore not commercial information.
[27] Second, the applicant argues that the withheld information is not confidential. It submits there is no direct sworn evidence regarding confidentiality in the present case and relies on Canada (Information Commissioner) v Atlantic Canada Opportunities Agency, [1999] FCJ No 1723 at para 3 [Atlantic Canada Opportunities Agency], where the Federal Court of Appeal held that unsworn statements submitted by third parties to the Information Commissioner could not be treated as evidence as to the confidentiality of information for purposes of ss. 20(1)(b).
[28] The applicant also refers the Court to SNC Lavalin Inc v Canada (Canadian International Development Agency), 2007 FCA 397 [SNC Lavalin], where the Federal Court of Appeal found sworn affidavit evidence to be insufficient to support a conclusion that the information at issue was confidential, in part because there was nothing in the record to indicate that the third party had communicated to the government institution, at any time prior to the consultation process under the ATIA, that it regarded the information it had supplied to be confidential.
[29] The applicant further argues that the information has not been consistently treated as confidential by the third party, referring to evidence in the respondent’s correspondence with the third party indicating that the respondent understood that the third party had previously made information concerning similar joint ventures publicly accessible.
[30] Finally, the applicant submits that, even if it could be established that some of the information qualifies for exemption under ss. 20(1)(b) of the ATIA, portions of the records must be severed in accordance with s. 25 of ATIA.
V. Respondent’s Memorandum of Fact and Law [31] The respondent agrees with the applicant that the standard of review for a decision to disclose records under ss. 19(1) and ss. 20(1)(b) of the ATIA is correctness (Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 at para 19 [Information Commissioner]). However, the exercise of the respondent’s residual discretion under ss.19(2) to disclose personal information, where the information is publicly available, is to be reviewed on a standard of reasonableness.
[32] The respondent also argues that, once it establishes that information is “personal information” and exempt from disclosure under the ATIA, the burden of proof shifts to the party seeking disclosure, the applicant, to show that an exception such as public availability applies. (Dagg, at paras 106-111).
[33] The respondent’s positon is that it was authorized to refuse to disclose the personal information.
[34] First, the respondent argues that the information is personal information as defined in the Privacy Act. Section 3 of the Privacy Act provides a general definition of “personal information” followed by a series of examples which the Supreme Court of Canada has held to be illustrative and not exhaustive (Information Commissioner, at para 24). Personal information is deliberately broad and does not have to meet any other requirements or have other special characteristics. Under Dagg at paragraph 77, once it is determined that a record falls within the opening words of the definition of “personal information” in s. 3 of the Privacy Act, it is not necessary to consider whether it also falls in one of the examples. In Information Commissioner, the Supreme Court of Canada held at paragraph 22 that the general rule is that any information about an identifiable individual is “personal information”, entitled to the right of privacy and excluded from access.
[35] Here, the respondent’s position is that the information at issue falls within the general definition of personal information. However, the signatures also fall within paragraph (c) of the definition, as a distinct mark a person uses as an identifier, and paragraph (i), the name of the individual appearing with other personal information related to the individual. The respondent refers to Dagg as holding that individual’s names, identification numbers and signatures on workplace sign-in logs were their personal information.
[36] On the subject of the exception found in paragraph (k) of the definition of “personal information” in the Privacy Act, the respondent submits that the names and signatures do not relate to the services performed under a contract with a government institution. The act of signing the Joint Venture Agreement or witnessing the signing of the Tender Form does not represent performing a service that is related to a contract with the government.
[37] Turning to ss. 19(2), the respondent submits it reasonably exercised its discretion not to disclose personal information. It has a narrow scope of discretion to disclose personal information if the conditions in ss. 19(2) apply. Here, none of the exceptions apply. The documents that the applicant recently acquired and appended to its affidavit are not relevant because they were not before the respondent when it responded to the ATIA request, and a government institution has no obligation to search every conceivable source to verify if personal information found in a record is available to the public in any shape or form. When the respondent conducted online searches of the relevant personal information, it did not retrieve any results.
[38] The respondent also maintains the position that it was authorized to refuse to disclose the redacted portions of the Joint Venture Agreement as confidential commercial information under ss. 20(1)(b).
[39] It argues the information is commercial information because the Joint Venture Agreement is a contract and its terms are inherently commercial in nature. The information at issue was clearly provided to the respondent by a third party. The respondent argues the information sought by the applicant is confidential in nature and has been consistently treated as confidential by the third party. The way in which corporate entities negotiate and establish their internal business affairs is inherently confidential. (See Ontario Hydro (Re), 1995 CanLII 6543 (ON IPC)). The Joint Venture Agreement was not provided to the respondent voluntarily, but rather in response to a specific request. As such, it was implicitly provided in confidence. The respondent argues that the absence of an express statement of confidentiality is not determinative of this issue (Jacques Whitford Environment Ltd v Canada (Minister of National Defence), 2001 FCT 556 at paras 32 and 42).
[40] The respondent notes that applications under s. 41 of the ATIA are summary in nature and argues that it would be an impractical application of the ATIA to require the respondent to obtain affidavits from third parties every time a s. 41 application is filed.
[41] Finally, the respondent submits that no further information contained in the Joint Venture Agreement is required to be severed and disclosed pursuant to section 25 of the ATIA.
VI. Analysis A. Standard of Review [42] The parties agree, and I concur, that the standard of review for a decision to disclose requested records under subsection 19(1) and paragraph 20(1)(b) of the ATIA is correctness (Brainhunter, at para 11; and Information Commissioner, at para 19).
[43] In Brainhunter, Justice Martineau examined the jurisprudence on this issue as follows:
[11] The applicable standard of review is correctness. The use of the word ‘shall’ in subsection 20(1) clearly suggests that no deference should be accorded to the government institutions who decide to disclose information in their possession (Canadian Tobacco Manufacturers’ Council v. Canada (Minister of National Revenue - M.N.R.), 2003 FC 1037 at paragraph 78 (Canadian Tobacco); St. Joseph Corp. v. Canada (Public Works and Government Services), 2002 FCT 274 at paragraph 31 (St. Joseph Corp.)). Moreover, with regard to subsection 19(1), in light of the lack of privative clause in the Act and the nature of decisions made pursuant to section 19, no deference is owed to the head of the government institution (Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 at paragraphs 15 to 19 (RCMP)).
[44] The parties also agree, the applicant’s counsel having confirmed such agreement in oral argument, that the standard of review for a discretionary decision whether to disclose information under ss. 19(2) of the ATIA is reasonableness (Information Commissioner of Canada v Canada (Natural Resources), 2014 FC 917, at para 26 [Natural Resources]).
[45] As explained in Dagg at paragraph 107, where the requested record constitutes personal information, the government institution is authorized to refuse disclosure under ss. 19(1), and the de novo review power set out in s. 49 of the ATIA is exhausted. The Court’s role is then as stated by Justice Shore in Yeager v Canada (National Parole Board), 2008 FC 113, at paragraphs 66-67:
[66] Even if some of the personal information would have been publicly available, the head of the government institution has the discretion to refuse to disclose the personal information. (Canada (Information Commissioner) v. Canada (Minister of Public Works & Government Services), [1995] F.C.J. No. 1796 (QL), paras. 6-7.)
[67] This Court, in reviewing a Minister or delegate’s decision, must consider the exercise of their discretion and whether in doing so the discretion was exercised in good faith, in accordance with the principles of natural justice, and taking into consideration matters extraneous or irrelevant to the statutory purpose. The Court is not to substitute its view of how the discretion should have been exercised for the manner in which it was exercised by the Minister or delegate. The burden of proving otherwise rests on the Applicant. (Dagg, above, paras. 106-111.)
B. Personal Information [46] Neither of the parties could point to definitive authority from this Court on the question whether signatures constitute “personal information” as defined in the Privacy Act. As noted above, the respondent refers the Court to the decision of the Supreme Court of Canada in Dagg at paragraph 68 for the propositions that the definition is expansive and that the list of examples that follow the general definition is not intended to limit the scope of the general definition. These propositions are undoubtedly correct.
[47] The respondent also notes that Dagg involved records that included individuals’ signatures and includes an analysis of the interpretation of paragraph (i) of the definition of “personal information”, although the respondent acknowledges that the context in that case was different. The applicant argues that the Supreme Court’s reasons did not specifically address the question whether signatures constitute personal information.
[48] The records at issue in Dagg were individuals’ names, identification numbers and signatures on work-place sign-in logs. The majority, adopting this component of Justice La Forest’s reasons in dissent, held that the names on the sign-in logs were “personal information” for the purposes of s. 3 of the Privacy Act. Justice La Forest concluded at paragraph 70 that the information requested by the appellant in that case constituted personal information because it revealed the times during which employees of the Department of Finance attended their workplace on weekends and was therefore “information about an identifiable individual”. However, the applicant is correct that the Court’s analysis focuses upon the information revealed as to the employee’s activities, such that it would be difficult to regard this case as binding authority for the proposition that signatures per se constitute personal information.
[49] The applicant relies principally on provincial Information and Privacy Commissioner decisions to support its position that the signatures are not personal information, because information associated with an individual in his or her professional, official, or business capacity is generally not considered to be “about” the individual. The applicant acknowledges limits to the persuasive value of these decisions but commends the Commissioner’s analysis to the Court for its consideration. However, having reviewed these decisions, I note that while elements of the definition of “personal information” in ss. 2(1) of Ontario’s Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56 are very similar to the definition in the Privacy Act, there are repeated references in these decisions to ss. 2(2.1) of that statute, which provides that:
(2.1) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.
(2.1) Les renseignements personnels excluent le nom, le titre, les coordonnées et la désignation d’un particulier qui servent à l’identifier par rapport à ses activités commerciales ou à ses attributions professionnelles ou officielles.
[50] I therefore consider these decisions to be of limited value in interpreting the definition of “personal information” in the Privacy Act. I also note that, unlike in the provincial legislation, the federal definition includes paragraphs (j) to (m), which are specific exclusions from the definition for purposes of its use in the ATIA. These exclusions include paragraph (k), which provides as follows:
(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,
k) un individu qui, au titre d’un contrat, assure ou a assuré la prestation de services à une institution fédérale et portant sur la nature de la prestation, notamment les conditions du contrat, le nom de l’individu ainsi que les idées et opinions personnelles qu’il a exprimées au cours de la prestation;
[51] Given that paragraph (k) creates an express and specific exclusion from the general definition of “personal information” in the context of an individual performing services under contract with a government institution, I would consider it inconsistent with the statutory intent to adopt an interpretation of the general definition, as advocated by the applicant, to the effect that such definition itself excludes information associated with an individual in his or her professional, official, or business capacity.
[52] Rather, being guided by the analysis in Dagg that this definition should be given an expansive interpretation, my conclusion (subject to the below analysis of the application of the exception in paragraph (k)) is that the names and signatures at issue in the case at hand do fall within the general definition of “personal information”, as information about an identifiable individual. I consider this conclusion to be consistent with the reasoning in Natural Resources, in which Justice Heneghan, after noting the requirement that the definition of “personal information” be read broadly, held as follows at paragraph 42:
[42] […] It is hard to imagine information that could be more accurately described as “about” an individual than their name, phone number and business or professional title.
[53] Natural Resources supports directly the conclusion that the name of the witness to the Tender Form constitutes “personal information” within the meaning of the general definition. As I consider Justice Heneghan’s analysis to be equally applicable to an individual’s signature, my conclusion is the same with respect to the witness’s signature and the signatures on the Joint Venture Agreement.
[54] It is therefore unnecessary to consider whether, as argued by the respondent, the names and signatures also fall within the specific examples enumerated in paragraphs (c) and (i) of the definition. However, it is necessary to consider the exception in paragraph (k). The applicant asserts, and I agree, that the respondent has the bur