Murchison v. Export Development Canada

Murchison v. Export Development Canada
Court (s) Database
Federal Court Decisions
Date
2009-01-26
Neutral citation
2009 FC 77
File numbers
T-1291-07
Notes
Digest
Decision Content
Date: 20090126
Docket: T-1291-07
Citation: 2009 FC 77
Ottawa, Ontario, January 26, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
KEITH N. MURCHISON
Applicant
and
EXPORT DEVELOPMENT CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is seeking a review of the claims for an exemption asserted by the respondent on nearly 900 pages of information listed in response to a request made under the Privacy Act, R.S.C. c. P-21. For the reasons that follow, the applicant’s application is allowed with respect to many of the documents withheld from him.
Background
[2] Mr. Murchison was an employee of Export Development Corporation (EDC) for almost three years from August 1979 to May 1982. He resigned to pursue opportunities in the private sector. Over the course of the next seven years, he worked for Northern Telecom and BCI Inc., and later for a brokerage associated with Lloyd’s of London, which was active in the Canadian trade insurance market at the time.
[3] Mr. Murchison sought reemployment with EDC in 1989, believing that his private sector experience would make him an attractive candidate for a managerial position. By his count, he has since made at least 26 formal applications for employment with EDC; none have been successful.
[4] In light of the repeated rejections of his applications over the course of some 15 years, Mr. Murchison began to question whether his human resources file contained unfavorable information that was standing in the way of his rehire. Accordingly, in September of 2004, he contacted the Human Resources Department of EDC seeking access to his personnel file, and followed-up with a written request to that effect on September 28, 2004. In response, EDC retrieved Mr. Murchison’s personnel file from National Archives, and delivered a copy of its 157 pages to him on October 29, 2004.
[5] Mr. Murchison discovered that his file did indeed contain negative information, in the form of a handwritten note prepared by Mr. Wayne Hughes, formerly an EDC Human Resources Manager, who had been tasked with inquiring into Mr. Murchison’s suitability when he first expressed interest in being rehired in 1989. The note purports to record the negative comments and recollections of five individuals from EDC who were questioned as to their view of Mr. Murchison’s suitability for reemployment. Mr. Murchison firmly believes that the information set out in the note was a fabrication designed to sabotage his prospects with EDC, and he considers that it should never have been appended to his archived personnel file. Regardless of motivation, Mr. Murchison considers the negative comments that are recorded to be false. In October of 2006, he commenced an action in the Ontario Superior Court against EDC and others claiming damages for the alleged impact of this information on him. That litigation is ongoing.
[6] On November 4, 2004, several days after receiving his personnel file, he wrote to the Human Resources Department of EDC to communicate his concerns over its contents, and to suggest that the offending materials be expunged and efforts undertaken to clear his name. He also expressed the view that “it will be necessary for some proper restitution to be made, in consideration of the financial effects of this reckless, unconscionable effort to poison my career potential.” EDC responded by letter dated November 30, 2004, informing Mr. Murchison that it was unlikely that his file had been consulted in connection with any job application and that “as a gesture of good faith,” EDC was prepared to destroy the entire contents of his career file. There followed a meeting and a series of written and oral exchanges between Mr. Murchison and EDC with a view to a resolution, but by early January 2005 none had been reached. Mr. Murchison changed tack and decided to approach the Acting President of EDC, Mr. Gilles Ross, directly. He also filed a request under the Privacy Act, R.S.C. 1985, c. P-21, with National Archives Canada, seeking to examine the original of his file. The file had to be retrieved from EDC, and it was not until the third week of April 2005 - well beyond the 30-day statutory deadline - that it was actually produced by National Archives for inspection, whereupon Mr. Murchison discovered that the original file included three pages which had not been included in the copy supplied to him by EDC. Around this time, he also met with Mr. Ross and another EDC executive in its legal department, Mr. John Peters, but despite the “upbeat” tenor of the meeting, from that point on EDC declined to deal directly with Mr. Murchison, referring him instead to Cavanagh Williams, counsel of record in this proceeding and the firm which had been retained by EDC in connection with Mr. Murchison’s allegations. This notwithstanding, Mr. Murchison continued to petition EDC directly up until October 2, 2006, shortly before he filed his action for damages in the Ontario Superior Court.
[7] It was in this context, prior to the commencement of litigation but after the involvement of outside counsel on behalf of EDC, that Mr. Murchison filed a request with EDC under subsection 12(1) of the Privacy Act, for disclosure of his personal information. It is that request, dated October 17, 2005, and the response to it that form the basis of the matter now before this Court. In the request, Mr. Murchison indicated that he was seeking disclosure of the following:
All documents and records pertaining to me other than those in the possession of National Archives as of Oct 17, 2005, including, but not limited to all briefing notes, meeting minutes, correspondances (sic) and reviews involving W. Hughes, W. Musgrove, J. Graves, P. Foran, J. Olts, A.I. Gillespie, L. Landry, R. Richardson, C. Caldwell, J. Christie, D. Blair, M. Cammaert, R. Wright, G. Ross, S. Picard, J. Peters, A. Lawford and external consultants, legal counsel, Int’l Trade Canada officials, etc.
*Note: A formal request was made under the Privacy Act in Sept (sic) of 2004. The current request is made to obtain documents not furnished under that earlier request including those wrongfully withheld and those arising in the subsequent interval.
[8] The request was amended by Mr. Murchison on or about November 7, 2005, to include information “from Staffing Files, maintained in EDC’s Human Resources group – including those in respect of a Financial Services Manager’s position for which I applied in June of 2004 (ref 000127) and a Customer Services Director position which I applied for in May of this year.”
[9] Mr. Murchison’s request was handled by Mr. Serge Picard, Assistant Secretary, Legal Counsel and Privacy Coordinator of EDC. Mr. Murchison’s request under the Privacy Act was the first such request received by EDC in over two decades and this may go some way to explain the process followed by EDC in responding to it. On October 27, 2005, Mr. Picard sent out an e-mail to 18 individuals, whom he believed might have relevant records in their control, reproducing Mr. Murchison’s request as set out in his correspondence dated October 17, 2005, and directing as follows:
(a) Contact me if the request is unclear or confusing.
(b) Inform me if you believe another individual/department has relevant records.
(c) In the event that you designate an individual or coordinate the response of your department/division, provide me with the name of the individual.
(d) Forward to me the records that are within the scope of the request by October 31, 2005.
(e) Contact me immediately if you cannot meet the deadline.
I will review with legal counsel the documents, indicate any exemptions that may apply and return the documents to you for your review and approval.
Note: relevant records include e-mail messages, documents stored on individual or network drives and documents in databases.
[10] In response, Mr. Picard received approximately 4000 pages of documents which he states that he personally reviewed, “line by line and page by page.” In his review, Mr. Picard first determined that a large number of the documents, or portions thereof, did not contain Mr. Murchison’s “personal information” within the meaning of section 3 of the Privacy Act. He then determined that of the balance of the documents, a number could be exempted from disclosure in accordance with the solicitor-client exemption set out at section 27 of the Act.
[11] Mr. Gilles Ross, who had received a written delegation of authority from EDC President Rob Wright, authorized the exemptions and redactions advised by Mr. Picard, and proceeded to release a document package of approximately 3,756 pages to Mr. Murchison under cover of letter dated December 13, 2005. Approximately 836 pages of the 3756 pages disclosed were fully or partially redacted because EDC asserted solicitor-client privilege over their contents, while some 126 pages were fully or partially redacted on the grounds that they contained what EDC termed “non-personal” information.
[12] On December 14, 2005, the day after he received the package of documents, Mr. Murchison addressed a letter of complaint to the Office of the Privacy Commissioner (OPC), challenging EDC’s assertions of solicitor-client privilege over select information and requesting that the OPC intervene to have all documents that had been withheld or redacted released in full. The week before he had filed a complaint with respect to EDC’s failure to respond to his disclosure request within the applicable 30-day time limit.
[13] The OPC launched an investigation and concluded that a number of the fully or partially redacted documents which EDC had indicated contained “non-personal information” did in fact contain Mr. Murchison’s personal information. This conclusion and the specific pages concerned were noted in a letter dated January 26, 2006, which the OPC sent to the attention of Mr. Picard. Mr. Murchison was not provided a copy, and only obtained one sometime later through a separate and subsequent Privacy Act request.
[14] Following discussions with the OPC in relation to Mr. Murchison’s complaint, EDC made two further releases of documents, on February 3, 2006 and again on December 19, 2006. Both releases came under cover of letter signed by Mr. Picard. The first release included documents EDC had, by its own admission, mistakenly withheld. At this time, Mr. Picard also affirmed that a number of the pages referenced in the December 13, 2005 disclosure, did not in fact exist (namely, pages 2204-2303, 2511, 2512, 3887-3890, 3956 and 3957). The second release included some 30 documents which had previously been fully or partially redacted, either on the basis of solicitor-client privilege or as “non-personal” information.
[15] On March 30, 2007, allegedly as the result of further discussions with the OPC, EDC Vice President, Legal Services, Mr. Jim McArdle, wrote to Mr. Murchison to inform him that EDC was now asserting solicitor-client privilege over a number of documents or portions thereof which up until then had been withheld on the basis asserted in Gilles Ross’ letter of December 13, 2005, namely that they did not contain Mr. Murchison’s personal information. Mr. Murchison correctly notes that the documents listed by Mr. McArdle in this respect closely match those which the OPC had referenced in its January 26, 2006 letter to EDC as being documents that did in fact contain personal information of Mr. Murchison. In short, Mr. Murchison submits that when the OPC reviewed and disagreed with EDC’s exemption of certain documents on the basis that they did not contain his personal information, EDC simply switched the basis for the exemptions to solicitor-client privilege.
[16] On May 16, 2007, the OPC wrote to Mr. Murchison informing him that it considered his complaint to have been resolved. The letter included the following passages, which bear reproduction in full:
We noted in the course of examining the information withheld by EDC, some information was excluded pursuant to section 12(1) of the Privacy Act. Section 12(1) of the Act entitles an individual to request access to one’s own personal information. Occasionally, there are files or documents under the control of a government institution that contain references to other individuals, not connected to the subject matter of the access request. This occurred in your case: some documents in your file contained information about other individuals and information of a non-personal information. (sic) Thus, you do not have a right of access to it.
That being said, we noted some pages did contain your personal information and as a result of our intervention EDC released additional information to you on December 19, 2006. It also informed you that information previously removed under section 12(1) was now exempted under section 27. On March 30, 2007 EDC further advised you that some of the information that was not released to you in response to your request of October 17, 2005 because EDC determined the information was not your personal information, is now being withheld from disclosure in accordance with section 27 of the Act.
Section 27 of the Privacy Act permits a federal institution to withhold from disclosure any personal information which is subject to solicitor-client privilege. This privilege extends to information prepared by or for a solicitor for the purpose of providing advice, or for litigation purposes. As a result of our representations made on your behalf, EDC agreed to revoke this section on a number of pages and disclosed that information to you on December 19, 2006. I am satisfied that the remaining information withheld under this provision is properly exempted.
When you reviewed the documentation, you noticed some inconsistencies in the records and concluded that EDC had purposefully withheld information. We noted that administrative processing errors occurred in the page numbering and photocopying which resulted in some inconsistencies in the records. You were informed of some of these processing errors in EDC’s letter of February 2, 2006.
I am of the view that you did not initially receive all of the information to which you were entitled and I have therefore concluded that this complaint is well-founded. However, now that additional information has been provided to you, I consider the matter resolved.
[17] Not being satisfied with the response from EDC, even after the intervention of the OPC, Mr. Murchison commenced an application for review by this Court pursuant to section 41 of the Act. That provision reads as follows:
41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
41. L’individu qui s’est vu refuser communication de renseignements personnels demandés en vertu du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à la protection de la vie privée peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 35(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l’expiration du délai, le proroger ou en autoriser la prorogation.
The Standard of Review Under Section 41
[18] Mr. Murchison was refused access to the all or part of the documents subject to this application either on the basis that they were not his personal information or on the basis that they contained information subject to solicitor-client privilege. The first is a claim for a section 12(1) exemption on the ground that the information is not personal information within the meaning of section 3 of the Act. Those sections read as follows:
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
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;
12. (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande :
a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;
b) les autres renseignements personnels le concernant et relevant d’une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l’institution fédérale puisse les retrouver sans problèmes sérieux.
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.
The second is a claim for an exemption pursuant to section 27 of the Act on the ground that the information may be withheld on the basis that it is subject to solicitor-client privilege. Section 27 reads as follows:
27. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege.
27. Le responsable d’une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui sont protégés par le secret professionnel qui lie un avocat à son client.
[19] It has been held that a review of a claim for an exemption pursuant to section 12 of the Act is to be determined on the standard of correctness: See Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8
and Elomari v. Canadian Space Agency, [2006] F.C.J. 1100, 2006 FC 863. The same standard has been applied with respect to a review of a claim for an exemption pursuant to section 27 of the Act: See Gauthier v. Canada (Minister of Justice), [2004] F.C.J. No. 794, 2004 FC 655. I concur with the analysis and the conclusions reached by Justice Tremblay-Lamer and Justice Mosley in the above-referenced decisions of this Court. Accordingly, the claims for exemption advanced by EDC will be examined on the standard of correctness.
[20] In addition to the claim that the exemptions asserted by EDC were incorrect, Mr. Murchison made a number of submissions that require the Court’s attention prior to reviewing the documents at issue and the exemptions claimed for each.
Issues Raised By The Applicant
Whether EDC Waived Or Lost The Ability To Claim Any Exemption Because It Responded Late?
[21] Mr. Murchison submits that EDC has lost or waived the right to claim any exemption from disclosure as it failed to respond within the 30-day period provided in sections 14 and 16 of the Act.
[22] Section 14 of the Act provides that the head of the institution that receives a request for access to personal information shall respond within 30 days. It reads as follows:
14. Where access to personal information is requested under subsection 12(1), the head of the government institution to which the request is made shall, subject to section 15, within thirty days after the request is received,
(a) give written notice to the individual who made the request as to whether or not access to the information or a part thereof will be given; and
(b) if access is to be given, give the individual who made the request access to the information or the part thereof.
14. Le responsable de l’institution fédérale à qui est faite une demande de communication de renseignements personnels en vertu du paragraphe 12(1) est tenu, dans les trente jours suivant sa réception, sous réserve de l’article 15 :
a) d’aviser par écrit la personne qui a fait la demande de ce qu’il sera donné ou non communication totale ou partielle des renseignements personnels;
b) le cas échéant, de procéder à la communication.
[23] Section 16 of the Act provides that where access to the personal information is refused, the head of the institution shall state the reasons why access has been refused. Section 16 specifically provides that this notice is to be incorporated into the response under subsection 14(a) of the Act. Section 16 reads as follows:
16. (1) Where the head of a government institution refuses to give access to any personal information requested under subsection 12(1), the head of the institution shall state in the notice given under paragraph 14(a)
(a) that the personal information does not exist, or
(b) the specific provision of this Act on which the refusal was based or the provision on which a refusal could reasonably be expected to be based if the information existed,
and shall state in the notice that the individual who made the request has a right to make a complaint to the Privacy Commissioner about the refusal.
(2) The head of a government institution may but is not required to indicate under subsection (1) whether personal information exists.
(3) Where the head of a government institution fails to give access to any personal information requested under subsection 12(1) within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.
16. (1) En cas de refus de communication de renseignements personnels demandés en vertu du paragraphe 12(1), l’avis prévu à l’alinéa 14a) doit mentionner, d’une part, le droit de la personne qui a fait la demande de déposer une plainte auprès du Commissaire à la protection de la vie privée et, d’autre part :
a) soit le fait que le dossier n’existe pas;
b) soit la disposition précise de la présente loi sur laquelle se fonde le refus ou sur laquelle il pourrait vraisemblablement se fonder si les renseignements existaient.
(2) Le paragraphe (1) n’oblige pas le responsable de l’institution fédérale à faire état de l’existence des renseignements personnels demandés.
(3) Le défaut de communication de renseignements personnels demandés en vertu du paragraphe 12(1) dans les délais prévus par la présente loi vaut décision de refus de communication.
[24] Mr. Murchison submits that read together, sections 14 and 16 require that the head of the institution to which an access request is made must respond within 30 days. In this case, EDC failed to respond within the 30-day period. Mr. Murchison submits that if the head has failed to respond within that time frame, the right to refuse disclosure has been lost and cannot later be asserted. As a result, he submits, all personal information must be disclosed. He submitted that “it is time for this Court to rule boldly on this issue” and hold that if there is no response within the 30-day period stipulated by the Act, any right to refuse to provide access to personal information is forfeited.
[25] EDC submits that subsection 16(3) is a full response to Mr. Murchison’s submission. Subsection 16(3) provides that when an institution has failed to provide access to the requested personal information within the 30-day period, the institution is deemed to have refused access. Pursuant to subsection 29(1) of the Act, the requesting person then has a right to file a complaint with the OPC, which in this case is exactly what Mr. Murchison did. EDC submits that the filing of a complaint is the requester’s sole remedy. It further submits that there is no time limitation provided in the Act restricting an institution’s right to claim an exemption. Accordingly, it argues, it was open to EDC to raise a claim of an exemption from disclosure at any time.
[26] It is my view that Mr. Murchison’s submission that EDC has lost the right to exempt any document from access cannot be maintained. Exemptions under the Act are set out in sections 18 to 28. These include information banks exempted by order of the Governor in Council (section 18), information subject to what may be described as governmental privilege (sections 19 to 25), personal information of another (section 26), information that is subject to solicitor-client privilege (section 27), and medical records where disclosure is not in the best interests of the person making the request (section 28). None of the exemptions in these sections stipulates when the exemption must be claimed. More importantly, there is no requirement in those sections or elsewhere in the Act that the institution must make the claim for an exemption within the 30-day response period or forever lose the right to claim it.
[27] Justice Dubé in Longaphy v. Canada (Solicitor General), [1995] F.C.J. No. 1429, characterized the purpose of the Privacy Act in this way:
… I must bear in mind that the purpose of the Act is to protect the privacy of individuals. The right of access given to any person to his personal information must be exercised in light of several considerations: the right of others to the privacy of their own data, due respect for confidentiality, and the lawful execution of investigations pertaining to the prevention of crime and the enforcement of laws in Canada.
The purpose mentioned by Justice Dubé would be greatly compromised if the applicant’s submissions were accepted, because the considerations Justice Dubé references would be entirely cast aside. The Act provides a balance between a person’s right to access his or her own personal information and the considerations mentioned above. If those considerations fall by the wayside simply because a request for personal information gets no response within the fixed period, then the balance in the Act would be lost – the scale tips irrevocable in favour of the requesting party.
[28] In my view, it would require clear and express language in the Act to find that personal information of others, government secrets and confidences, and documents subject to solicitor-client privilege, had to be disclosed merely because the institution failed to assert an exemption within the 30-day period. The considerations in play are simply too important to be forfeited through what might be inadvertence or delay on the part of an institution. While I appreciate the applicant’s frustration with the delays that occurred in responding to his request, delay alone does not prevent the respondent from asserting the exemptions available to it under the Act.
[29] The Federal Court of Appeal, albeit with reference to the Access to Information Act, R.S.C. 1985, c. A-1, has also rejected the assertion that a failure to reply and thus a deemed refusal prevents the party from subsequently asserting a claim for an exemption available under legislation. In Canada (Information Commissioner of Canada) v. Canada (Minister of National Defence), [1999] F.C.J. No. 522, the Court writes:
[The Commissioner] submits that the effect of the deemed refusal is to prevent the institution from subsequently invoking the exceptions set out in the Act and consequently that the Commissioner's initial investigation allowed him to decide on the merits of the complaint. This argument cannot succeed.
[30] Bearing in mind Justice Laforest’s comment in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 43, to the effect that the Access to Information Act and the Privacy Act should be approached as a “seamless code”, I am of the view that the Federal Court of Appeal’s comments in the passage quoted above govern here. Accordingly, that EDC claimed the exemption after the time for an initial response is not fatal if the factual basis for an exemption is shown.
Whether Solicitor-Client Privilege Has Been Properly Claimed?
[31] Mr. Murchison submits that EDC has improperly claimed solicitor-client privilege over many, if not all, of the documents. He submits that the claim is improper on a number of grounds: (i) that the claim was advanced prior to there being any pending litigation from him; (ii) that some of the solicitors providing the advice are not members of the Law Society of Upper Canada and thus cannot claim the privilege because the advice was given to the respondent in the Province of Ontario; and (iii) that some of those providing the advice were engaged in roles other than that of a solicitor.
[32] The judgment of the Supreme Court of Canada in Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, provides a valuable summary of the law of solicitor-client privilege. The solicitor providing the advice need not be in private practice. Advice provided by an in-house government lawyer to his or her client, a governmental agency, attracts solicitor-client privilege: R. v. Campbell, [1999] 1 S.C.R. 565. However, the Supreme Court has cautioned that when dealing with communications from lawyers who are in-house, one must be mindful that they often occupy other roles. Therefore, when in-house lawyers give advice outside the realm of their legal responsibilities, such advice is not protected by the privilege. As the Court observed:
Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.
[33] In this case, there are six individuals who, during the relevant period, had legal responsibilities within the respondent’s operations. Two of those occupied only a legal role:
· Anthony Abraham was Senior Legal Counsel prior to his appointment in 2001 as Assistant General Counsel. His only role within EDC is as a lawyer. He is a member of the Law Society of Upper Canada.
· John Peters was Legal Counsel prior to his appointment in 1999 as Senior Legal Counsel. He too is a member of the Law Society of Upper Canada.
Four others had legal and additional administrative responsibilities:
· James (Jim ) McArdle was Senior Legal Counsel prior to his appointment in 2001 as General Counsel and Senior Assistant Secretary. In 2006 he was appointed Senior VP Legal Services and Secretary to EDC. He is a member of the Law Society of Upper Canada.
· John Pallascio was Senior Legal Counsel prior to his appointment in 2001 as Assistant General Counsel. In 2006 he was appointed General Counsel and Assistant Secretary of EDC. He is a member of the Barreau du Québec.
· Serge Picard is Assistant Secretary, Legal Counsel and Privacy Coordinator. Accordingly, solicitor-client privilege can only attach to advice given as a part of his responsibilities as Legal Counsel to EDC. He is a member of the Barreau du Québec.
· Gilles Ross retired in February 2006 from EDC and his position as Senior VP Legal Services and Secretary. Accordingly, solicitor-client privilege can only attach to advice given as a part of his responsibilities as Senior VP Legal Services to EDC. He is a member of the Barreau du Québec.
In my view, because Anthony Abraham and John Peters occupy only one role, a legal one, correspondence to and from them need only be examined to ascertain if it otherwise meets the definition of solicitor-client privilege as discussed below. On the other hand, correspondence to or from the other four lawyers cannot be so approached, as it may have been sent to or by them in their non-legal role. These situations require an examination of the subject matter of the advice, the circumstances in which it was sought and rendered, and the role in which the individual was providing it.
[34] Mr. Murchison’s submission that in this case, privilege can only attach to communications to or from lawyers who are members of the Law Society of Upper Canada, cannot be maintained. A claim of solicitor-client privilege will not fail simply because the solicitor in the relationship is licensed in another Province than that in which the issue has arisen. On this point I am in agreement with the Manitoba Court of Queen’s Bench in Gower v. Tolko Manitoba Inc., (1999), 181 D.L.R. (4th) 353, aff’d (2001), 196 D.L.R. (4th) 716, where it noted that “to hold otherwise would be to ignore the realities of modern practice of law.”
[35] In considering whether a document is exempt from inspection on the basis of solicitor-client privilege under section 27 of the Act, one must consider, but must also look beyond, what is known as litigation privilege. The distinctive scope, purpose and rationale of the litigation privilege were detailed by Justice Fish in Blank v. Canada (Minister of Justice), 2006 SCC 39. The Court recites with approval the following description of the distinction between solicitor-client and litigation privilege provided by Justice Sharpe before his appointment to the bench: "Claiming Privilege in the Discovery Process", in Law in Transition: Evidence, [1984] Special Lectures, L.S.U.C. 163, at pp. 164-65:
It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confide