Leahy v. Canada (Citizenship and Immigration)

Leahy v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2012-09-04
Neutral citation
2012 FCA 227
File numbers
A-302-11
Notes
Reported Decision
Decision Content
Date: 20120904
Docket: A-302-11
Citation: 2012 FCA 227
CORAM: DAWSON J.A.
TRUDEL J.A.
STRATAS J.A.
BETWEEN:
TIMOTHY EDW. LEAHY
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on April 26, 2012.
Judgment delivered at Ottawa, Ontario, on September 4, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: DAWSON J.A.
TRUDEL J.A.
STRATAS J.A.
Date: 20120904
Docket: A-302-11
Citation: 2012 FCA 227
CORAM: DAWSON J.A.
TRUDEL J.A.
STRATAS J.A.
BETWEEN:
TIMOTHY EDW. LEAHY
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
INDEX (by paragraph numbers)
Introduction 1-6
Factual Background 7-28
The Judgment of the Federal Court 29-43
The Procedural Issue 44-57
Positions of the Parties 58-66
Overview of the Act
a) Access generally 67-70
b) Architecture of the Act 71-75
c) Section 26: third-party personal information 76-78
d) Section 27: solicitor-client privilege 79-82
e) Decision-making authority under the Act 83-87
f) Documents Classification 88-92
g) The role of the courts in access applications 93-95
Consideration of the Substantive Issues
a) The standard of review 96-103
b) Alleged reviewable errors by CIC
(i) The scope of the Privacy Request 104-115
(ii) CIC’s decisions under sections 26 and 27 of the Act 116-137
c) Postscript 138-145
Conclusion 146-147
Introduction
[1] The appellant, Mr. Timothy Leahy, appeals from a decision of the Federal Court, reported as 2011 FC 1006, 395 F.T.R. 260, rendered in connection with Mr. Leahy’s application under section 41 of the Privacy Act, R.S.C., 1985, c. P-21 (Act) for judicial review of a decision of Citizenship and Immigration Canada (CIC). CIC, in a decision letter dated February 19, 2009, refused Mr. Leahy’s request for access to certain information under the Act (Privacy Request) based on the third-party information and solicitor-client privilege exemptions found in sections 26 and 27 of the Act. A judge of the Federal Court (Applications Judge) dismissed Mr. Leahy’s application and ordered him to pay costs to the respondent.
[2] Two principal issues are raised on this appeal. One is procedural, the other is substantive in nature.
[3] The procedural issue concerns the proper scope and format of confidential evidence and submissions made to the Court on behalf of a government institution in respect of documents or information disclosed to the Court on a confidential basis, but not disclosed to the person who has requested access to such information.
[4] The substantive issue concerns the nature of the information which should be provided to a reviewing court in order for it to be able to properly review a decision made under the Act to withhold personal information from a requester.
[5] The other issue to be considered is whether CIC erred in the circumstances of this case by limiting the scope of Mr. Leahy’s Privacy Request.
[6] For the reasons which follow, we have decided that the appeal should be allowed with costs, and that Mr. Leahy’s Privacy Request should be remitted to the respondent for redetermination by a different decision-maker in accordance with these reasons. We have reached this decision on the basis of the failure of CIC to provide an evidentiary basis sufficient to permit this Court, or the Federal Court, to properly review the decision to withhold access to personal information from Mr. Leahy.
Factual Background
[7] The relevant facts are set out in detail in the decision of the Federal Court. The following facts are sufficient for the purpose of the issues to be decided.
[8] Mr. Leahy was at all material times a lawyer with Forefront Migration Ltd. In that capacity, he represented or advised persons in conjunction with immigration proceedings or applications. In 2007, CIC decided that Mr. Leahy was not an “authorized representative” as then defined in section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227.
[9] Section 2 of the Regulations provided that:
“authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003.
[emphasis added]
« représentant autorisé » Membre en règle du barreau d’une province, de la Chambre des notaires du Québec ou de la Société canadienne de consultants en immigration constituée aux termes de la partie II de la Loi sur les corporations canadiennes le 8 octobre 2003.
[Non souligné dans l’original.]
[10] CIC decided Mr. Leahy was not an “authorized representative” after it discovered that the appellant’s status was listed by the Law Society of Upper Canada (LSUC) as “Not Practicing Law – Employed”. For the purposes of the LSUC this category describes “a lawyer who is employed by an organization … and who does not provide legal services” [emphasis added]. From this information, CIC concluded that the appellant was not a “member in good standing” of his bar association since, by not providing legal services, he was exempt from contributing to the compulsory professional liability insurance plan. We need not, and do not, decide whether this interpretation is correct.
[11] The practical result that flowed from CIC’s conclusion about Mr. Leahy’s status was that he was no longer able to provide services to his clients.
[12] On September 25, 2007, the International Region of CIC issued Operational Instruction 07-040 (RIM) to all visa offices requiring them to “send Mr. Leahy a letter simply stating that the Visa Office will have no further contact with him” and to advise Mr. Leahy’s clients of the situation and inform them “on how to proceed with their application” (tribunal record, appeal book volume 2, tab 7, page 2361).
[13] Subsequently, on January 15, 2008, CIC reversed its previous position through Operational Bulletin 046. It issued Operational Instructions 08-002 (RIM) which authorized visa offices to resume dealing with Mr. Leahy as he had regained “authorized representative” status (tribunal record, appeal book volume 2, tab 7, page 2368). This about-face occurred after CIC received information from the LSUC indicating that Mr. Leahy was now listed as a “member in private practice” and thus obliged to contribute to the liability insurance plan (tribunal record, appeal book volume 2, tab 7, page 2370).
[14] These events caused a string of administrative and legal proceedings to be initiated by Mr. Leahy against CIC, including his Privacy Request, made pursuant to section 12 of the Act. This Privacy Request formed the basis of Mr. Leahy’s application for judicial review in the Federal Court and his appeal in this Court.
[15] Section 12 of the Act in its relevant part reads:
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.
[emphasis added]
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.
[Non souligné dans l’original.]
[16] In his Privacy Request, Mr. Leahy sought the following:
[…] copies of all items, emanating from, or received by, CIC and pertaining to me, directly or indirectly. My request encompasses correspondence, emails, telephone messages and any other recorded items. The initial time-frame is from 1 January 2007 and extends to the date this request is executed and includes NHQ, visa-posts, CPC’s, CIC’s, etc. Partial disclosure would be acceptable and probably preferable; i.e., disclosure from NHQ file(s), followed by specific visa-posts, etc.
(tribunal record, appeal book volume 2, tab 7, page 1)
[17] After an initial assessment, Peter Maynard, the access to information and privacy (ATIP) administrator in charge of the Privacy Request, determined that it did not meet the requirements of section 12. In his view, for CIC to process the request, Mr. Leahy had to provide “sufficiently specific information” to allow CIC to locate the materials (see paragraph 12(1)(b) of the Act), such as the names, titles, locations or other information to identify the employees involved. Moreover, in Mr. Maynard’s view, the scope of the search should be limited to communications from January 1, 2007 to May 16, 2008, i.e. the date the Privacy Request was received rather than the date on which it would eventually be fulfilled.
[18] On May 22, 2008, Mr. Maynard wrote to Mr. Leahy advising that the Privacy Request had been received and would be treated as covering the period from January1, 2007 to May 16, 2008. Mr. Maynard also advised that the request was on hold because Mr. Leahy had not provided sufficiently specific information on the location of the information to render it reasonably retrievable. Mr. Leahy was asked to provide the names of employees, their specific titles, their locations and other identifying information in order to allow the materials to be reasonably located (tribunal record, appeal book volume 2, tab 7, page 3).
[19] Mr. Maynard’s request was met by the following answer from Mr. Leahy who maintained his position as to the content and time-frame of his request:
[…] you start with Legal, seeking direction from someone there. I am sure that you can find someone who can direct you to the NHQ [National Headquarters] cabal orchestrating a worldwide campaign to destroy my company and me, including, but not limited to, sending a memorandum to various, if not all, visa-posts ordering direct interference with our clients.
(tribunal record, appeal book volume 2, tab 7, page 4)
[20] Need we say that this reply was of no particular assistance to Mr. Maynard? Having found that it would be unreasonable to go to every Citizenship and Immigration office around the world, including over 80 overseas missions, 43 Canadian CIC offices, 4 Case Processing Centres and CIC National Headquarters (public affidavit of John Warner, appeal book volume 1, tab 6 at paragraph 26), CIC determined that the search’s scope would be limited to the National Headquarters and that May 16, 2008 would be the end date as, otherwise, the Privacy Request would require an ongoing process of consultations. As a result, Mr. Maynard reformulated the Privacy Request in these terms:
I (Timothy LEAHY) am requesting copies of all items, emanating from, or received by, CIC and pertaining to me, directly or indirectly. My request encompasses correspondence, emails, telephone messages and any other recorded items. The initial time-frame is from 1 January 2007, until May 16, 2008.
(tribunal record, appeal book volume 2, tab 7, page 6)
[21] On June 11, 2008, Mr. Leahy received written notice that his Privacy Request could not be processed within the 30-day statutory limit imposed pursuant to section 14 of the Act (tribunal record, appeal book volume 2, tab 7, page 42). In view of Mr. Leahy’s international client base, external consultations were necessary to comply with his Privacy Request. Consequently, the time limit was extended for the 30-day maximum provided by paragraph 15(a)(ii) of the Act. Mr. Leahy acquiesced to the extension.
[22] In the end, Mr. Leahy’s Privacy Request led CIC to collect approximately 1,030 pages of documents. Five hundred and twenty-one pages were duplicate copies. Therefore, in substance, 509 pages were responsive to the Privacy Request. On February 19, 2009, Mary-Anne McManus, Acting Manager of the CIC ATIP Division, released to Mr. Leahy 87 pages, advising him as follows:
The processing of your request is now complete and I am pleased to enclose the documents requested. Certain information contained on the exempted pages qualifies for exemption pursuant to sections 26 and 27 of the [Act].
(tribunal record, appeal book volume 2, tab 7, page 2360)
[23] Unsatisfied with this partial disclosure, Mr. Leahy exercised his rights under section 29 of the Act. He complained to the Privacy Commissioner that: (a) CIC had improperly applied exemptions to his Privacy Request; and (b) failed to provide him with access to information held at NHQ (public affidavit of John Warner, appeal book volume 1, tab 6).
[24] Following an investigation into the complaint, the Assistant Privacy Commissioner concluded that the complaint was not well-founded. In her Report of Findings, she first addressed the documents withheld by CIC pursuant to section 26 of the Act, which provides that:
26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8.
26. Le responsable d’une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui fait la demande et il est tenu de refuser cette communication dans les cas où elle est interdite en vertu de l’article 8.
[25] She stated “[o]ur review of the information at issue confirmed that the exempted information was not the complainant’s information” (public affidavit of John Warner, appeal book volume 1, tab 6).
[26] Continuing on to section 27 of the Act, which permits a government institution’s head to decline to disclose material covered by solicitor-client privilege, the Assistant Privacy Commissioner advised that she carefully reviewed the matter and confirmed CIC’s decision not to disclose the documents at issue based on either solicitor-client or litigation privilege.
[27] On July 6, 2010, Mr. Leahy commenced his application for judicial review pursuant to section 41 of the Act. Section 41 reads:
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.
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.
[28] Subsequently, Mr. Leahy was provided with additional records as follows:
• October 29, 2010: 22 pages
• February 23, 2012: 2 pages
• March 23, 2012: 11 pages
The Judgment of the Federal Court
[29] After setting out the various contentions advanced by Mr. Leahy both in his notice of application and his memorandum of fact and law, the Applications Judge reviewed the background facts. He then set out the issues before the Court and summarized the parties’ written submissions.
[30] The Applications Judge went on to discuss the standard of review to be applied when reviewing decisions under sections 26 and 27 of the Act. Relying upon the decision of our Court in Blank v. Canada (Minister of Justice), 2010 FCA 183, 409 N.R. 152 (Blank), a case which dealt with the standard of review to be applied to the review of a claim of solicitor-client privilege under section 23 of the Access to Information Act, R.S.C., 1985, c. A-1 (ATIA), he concluded that the Court must apply the correctness standard to review whether the withheld information falls within the section 26 or 27 exemptions, and the standard of reasonableness to the discretionary refusal to release exempted information. (See Blank, at paragraph 16).
[31] The remaining issues as rephrased by the Applications Judge were:
1. Did the respondent err by limiting the scope of the request?
2. Did the respondent err by limiting the access request to a specific period of time?
3. Did the respondent err by delaying disclosure past the statutory required time-frame?
4. Did the respondent err by exempting certain information from disclosure pursuant to section 26 of the Privacy Act?
5. Did the respondent err by exempting certain information from disclosure pursuant to section 27 of the Privacy Act?
[32] On appeal to this Court, Mr. Leahy takes particular issue with the Applications Judge’s findings on questions 1, 4 and 5).
[33] Regarding the first issue, the Applications Judge found that given the appellant’s failure to provide more specific information when invited to do so, the decision to limit the terms of the Privacy Request was correct (reasons for judgment at paragraph 46). Moreover, it was also correct not to include material under the control of other governmental institutions because the Privacy Request had been directed only to CIC (reasons for judgment at paragraph 49).
[34] Regarding the second issue concerning the period covered by the Privacy Request, the Applications Judge held that “[a]n end date to the disclosure period is necessary in order for disclosure to be completed in a timely fashion. Were the end date of disclosure to be the date that disclosure is made, then the process of completing consultations might never end” (reasons for judgment at paragraph 52). Mr. Leahy does not directly attack this finding, and he made no written or oral submissions on this issue. Instead, as explained below, he seeks an order compelling disclosure of records created between January 1, 2007 (the start date referenced in the Privacy Request) and the date disclosure is made.
[35] We have not ordered that any disclosure be made. In light of the nature of the remedy we order, and in the absence of submissions from the parties on the issue of the period properly covered by the Privacy Request, it is not necessary or appropriate for us to deal with this issue.
[36] Mr. Leahy does not address the third issue concerning the lateness of the response to the Privacy Request. In any event, paragraph 58 of the reasons below serves as a full answer to the question posited:
This judicial review only relates to the refusal to allow access to certain exempted material which was refused under sections 26 and 27 of the Act. There is no need to review the respondent’s delay in disclosure and deemed refusal of information which was subsequently disclosed on February 19, 2009.
[37] As to the fourth issue and CIC’s asserted exemptions under section 26 of the Act, the Applications Judge stated: “I have reviewed the materials and determined that each instance correctly involves the personal information of a third party” (reasons for judgment at paragraph 60).
[38] Finally, the Applications Judge turned his mind to the materials allegedly exempt from disclosure pursuant to section 27 of the Act. Relying on the decision of the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319 (Blank SCC), he found that the solicitor-client privilege protection under section 27 of the Act includes both legal advice (or solicitor-client) privilege and litigation privilege (reasons for judgment at paragraph 63). This finding is not contested.
[39] This being said, after the Applications Judge stated that he had reviewed the documents at issue in light of the principles applicable to solicitor-client privilege, he found that “[t]he vast majority of the documents under review deal with the seeking and rendering of legal advice. […] These communications were made by counsel acting in their capacity as lawyers, not in another capacity providing policy advice” (reasons for judgment at paragraph 72). The Applications Judge also found that privilege had not been waived as the “information sharing was to remain confidential and [that it] was never shared with third parties outside of the Client Department of Citizenship and Immigration” (client) (reasons for judgment at paragraph 72). In the case of information sharing between non-lawyers, it was found to “[fit] comfortably within the ‘continuum of communication’ between the Department of Justice and members of its client” (reasons for judgment at paragraph 72).
[40] The Applications Judge also looked at the documents exempted from disclosure by CIC based on litigation privilege. He held that litigation between the parties was not only apprehended but had materialized as several of the actions initiated by Mr. Leahy against the respondent were pending at the time of disclosure and shared a common thread. These documents met the test set out in Blank SCC (reasons for judgment at paragraph 75).
[41] The Applications Judge also found that there were no documents which CIC should have severed and partially disclosed (reasons for judgment at paragraph 78).
[42] Finally, the Applications Judge addressed Mr. Leahy’s submission that solicitor-client privilege does not apply where the communication has the purpose of furthering unlawful conduct or where the party seeking disclosure can demonstrate an actionable wrong by the other party. He wrote:
However, the burden to demonstrate a claim of wrongdoing rests with the applicant […] and he has not met this burden in this case. He has not demonstrated any unlawful conduct or actionable wrong on the part of the respondent.
(reasons for judgment at paragraph 79)
[43] In the end, the Applications Judge held that CIC correctly found that the withheld information fell within sections 26 and 27 of the Act and that its discretionary decision not to disclose the exempt material was reasonable. Therefore, the Applications Judge dismissed Mr. Leahy’s application for judicial review with costs to the respondent.
The Procedural Issue
[44] The record on this appeal initially consisted of:
i. an appeal book, in two volumes, containing, among other things, the public affidavit of the CIC deponent (Mr. John Warner) and copies of the documents released to Mr. Leahy; and
ii. a confidential appeal book, in eight volumes, containing, among other things, the confidential affidavit sworn by Mr. Warner and copies of the documents not disclosed to Mr. Leahy.
[45] A confidentiality order issued by the Federal Court permitted the respondent to file in that court both a confidential affidavit and a confidential record containing the documents which CIC had not released to Mr. Leahy. Rule 152(3) of the Federal Courts Rules provides that a confidentiality order issued by the Federal Court continues for the duration of any appeal of the proceeding. Thus, the Federal Court confidentiality order continued to have effect and it permitted the respondent to file the confidential appeal book in this Court.
[46] Subsequent to the filing of the appeal books, the appellant filed his memorandum of fact and law. The respondent Minister then filed two memoranda of fact and law, one confidential and one not confidential. The confidential memorandum of fact and law was filed pursuant to the direction of Justice Layden-Stevenson.
[47] The contents of the confidential record were problematic. We discuss below the inadequacy of the evidentiary record. For the purpose of the procedural issue, the contents of the confidential record were problematic because the confidential affidavit of Mr. Warner contained information that demonstrably was not confidential and the confidential memorandum of fact and law similarly contained information and submissions that were not confidential in nature.
[48] Accordingly, on February 7, 2012, the Court issued a direction that stated in relevant part:
The Court makes the following requests of the parties in advance of the hearing of the appeal now scheduled for February 27, 2012:
[…]
3. The confidential memorandum of fact and law filed by the respondent contains information and submissions which are not confidential in nature. Counsel for the respondent is requested to remedy this forthwith, and in any event by no later than February 16, 2012. This will require the respondent to file either a redacted version of the confidential memorandum of fact and law or an amended confidential memorandum of fact and law that does not contain information or submissions which can be provided in the public hearing. It will also require the respondent to file either an amended public memorandum of fact and law or a supplementary public memorandum of fact and law that contains all of the information and submissions the respondent wishes to advance that can be addressed in the public hearing.
[49] In response, counsel for the respondent filed a public supplementary memorandum of fact and law and an amended confidential memorandum of fact and law.
[50] When the appeal came on for hearing on February 27, 2012, the Court expressed its view that the amended confidential memorandum of fact and law continued to contain information and submissions which were not confidential in nature.
[51] As the Court explained at that time, an overbroad claim of confidentiality is wrong at law for at least two reasons.
[52] First, it is a fundamental principle that proceedings of Canadian courts are open and accessible to the public. The open court principle extends to the affidavit evidence and the written submissions filed on judicial review. Any restriction on the presumption of openness should only be permitted when:
(a) such a restriction is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutory effects of the restriction outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of each party to a fair and public hearing, and the efficacy of the administration of justice.
(Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332 at paragraphs 22 to 31)
There is no justification for placing non-confidential information or submissions in a confidential document. To do so violates the open court principle.
[53] Second, fairness requires that a party know the case to be met. An overbroad claim to confidentiality that prevents the opposite party from knowing as much as possible about the evidence and the submissions made to the Court improperly impairs the opposite party’s ability to respond to the case. Put simply, an overbroad claim of confidentiality is inconsistent with the duty of procedural fairness.
[54] For these reasons, on February 27, 2012, the Court adjourned this application on the following terms:
1. The hearing of this appeal is adjourned. The appeal is now set down for hearing at 180 Queen Street West, 7th Floor, Toronto, Ontario, commencing at 9:30 a.m., on Thursday, April 26, 2012, for a duration not to exceed 2 hours and 30 minutes.
2. The respondent shall, on or before March 23, 2012, serve and file a supplementary appeal book containing a redacted version of the confidential affidavit of John Warner.
3. The respondent shall, on or before March 23, 2012, serve and file redacted and unredacted versions of his amended memorandum of fact and law. The unredacted version of the amended memorandum of fact and law shall not exceed 45 pages in length. Any references to the confidential appeal books will be by reference to the ATIP numbers as found in volumes 1 to 4 of the confidential appeal books.
4. The appellant may serve and file, on or before April 12, 2012, a supplementary memorandum of fact and law. The supplementary memorandum of fact and law shall respond to any new matters raised in the respondent’s redacted amended memorandum of fact and law, and shall not exceed 10 pages.
5. The costs of this appearance are reserved, to be dealt with following the hearing of the appeal.
[55] In consequence, the respondent served and filed a properly redacted public version of the confidential affidavit of John Warner and both public redacted and confidential unredacted versions of his memorandum of fact and law. The appellant then filed a supplementary memorandum of fact and law.
[56] In future, we would encourage counsel for government institutions to consider the use of redacted and unredacted affidavits and memoranda of fact and law in applications of this type. In the present case, this enabled the appellant to receive the maximum disclosure of the evidence and submissions, while still protecting information alleged to be exempt from disclosure.
[57] Having dealt with the procedural issue, we now turn to the positions of the parties on the substantive issues.
Positions of the Parties
[58] On appeal to this Court, the appellant initially raised six grounds of complaint with regards to the reasons below. In a nutshell, the appellant argued that the respondent wilfully refused to comply with its statutory obligations and arbitrarily limited its search to the National Headquarters. As a result, he disagreed with the Applications Judge’s finding as to the Privacy Request’s scope and his conclusions pertaining to the section 26 and 27 exemptions.
[59] In particular, Mr. Leahy made the following two arguments:
(1) The Applications Judge “failed in his duty when he upheld the exemptions despite not identifying who actually exempted the material or citing to any evidence that an informed Minister asserted privilege” (appellant’s memorandum of fact and law at paragraph 21). He “abdicated his judicial responsibility by deferring to the unknown bureaucrat who claimed the exemption” (appellant’s memorandum of fact and law at paragraph 22). He also did not look into the manner in which the discretion was exercised;
(2) The Applications Judge misapplied Blank SCC and erred by finding there to be no evidence of illegal activity on the part of CIC.
[60] In his supplemental submissions Mr. Leahy argued that:
[The Applications Judge] failed to identify (a) who made the decision to withhold, (b) whether that person was authorized to make that decision, (c) who asserted privilege, (d) whether that person (who should be the Minister himself) was properly informed before doing so and (e) whether consideration was given to releasing the material despite its being privileged. He did not do so because no such evidence was ever adduced.
[61] The appellant sought various remedies, including once again the disclosure of materials held by the Immigration and Refugee Board, an independent government institution listed separately in the Act’s schedule. The orders sought are:
a. an order compelling the respondent to disclose all materials, documents, items, etc. contained in any and all files, under whatever name and located in any of the respondent’s entities, including the [Immigration and Refugee Board], be they located in Ottawa, in any local Canadian agency/bureau/board/centre/office, etc. or in any post abroad, wherein Mr. Leahy is the subject, object or is referenced and which item was recorded from January 2007 until the date the disclosure is made;
b. an order prohibiting the respondent from asserting privilege over any such item relating to (a) any improper conduct, (b) any effort (i) to deprive Mr. Leahy or his firm, Forefront Migration Ltd., of any client, or (ii) to separate them from a client; (c) to impede Mr. Leahy from earning a living; or (d) any effort to treat their clients unfavourably owing to Mr. Leahy’s assistance;
c. an order imposing a sixty-day deadline for full disclosure and a penalty of $500/- per day thereafter until full disclosure occurs; and
d. an order of costs to the applicant in an amount of no less than $10,000.
[62] CIC, for its part, entirely supported the legal and factual findings of the Applications Judge. At the hearing of this appeal, the panel members raised concerns about the lack of evidence with respect to (a) the identity of the person or persons properly authorized to exempt documents under the Act or to release them despite their confidential content; and (b) the manner in which the discretion to disclose information was exercised.
[63] Addressing these concerns, counsel for the respondent fairly conceded that the evidence on the issue of delegation could have been clearer but that inferences could be drawn from the evidence. Initially, we were asked to infer from the fact that Ms. McManus signed the letter transmitting the documents released under the Act that she was the decision-maker. Later, we were asked to infer from the statement in Mr. Warner’s affidavit “I was the officer who had final carriage of the applicant’s request under s. 12 of the Privacy Act” that Mr. Warner had made the decision.
[64] Counsel for the respondent also relied upon the Delegation Order signed by the then Minister pursuant to section 73 of the Act, by which she authorized the officers and employees of CIC whose positions were set out in an attached schedule to carry out those of her powers, duties or functions under the Act that were listed therein (joint book of authorities at tab 6).
[65] Counsel for the respondent went on to concede that there was no evidence before the Court to show that the decision-maker was properly instructed about the required elements of solicitor-client or litigation privilege and that the evidence was silent as to the manner in which the discretion to release or not release information was exercised. Counsel for the respondent acknowledged that on the basis of the affidavit evidence one could not tell whether the discretion to release information was informed by the proper legal principles. Nor was there evidence concerning the steps taken to keep the information confidential. Once again, counsel for the respondent invited the Court to infer from the content of documents at issue that they arose within the context of a legal matter and were kept confidential.
[66] Having reviewed the positions of the parties, we will turn to a general overview of the Act and its basic architecture, emphasizing the interpretative principles applicable to sections 26 and 27. Then, we will discuss where it vests decision making power and briefly describe how documents are classified within government departments.
Overview of the Act
a) Access generally
[67] Access to information and the concomitant value of privacy have been addressed legislatively across Canadian jurisdictions. While these regimes vary slightly, as a general matter, each bestows a right to access government information, enunciates a series of exceptions to this right and outlines the procedural aspects of managing access requests. Many jurisdictions appoint Commissioners to oversee enforcement and spell out dispute resolution mechanisms.
[68] Most provincial statutes address access to information and privacy in the same statute. In contrast, at the federal level, access and privacy rights are spread across the ATIA and the Act, collectively the “Access Statutes” (they were considered together by Parliament as Bill C-43 and enacted simultaneously as Schedules I and II to S.C. 1980-81-82-83, c. 111). Thus, either the ATIA or the Act may come into play depending on the specific circumstances of a case. Nevertheless, the Access Statutes are meant to be a “seamless code” and must be construed harmoniously according to a “parallel interpretation model”: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, [1997] S.C.J. No. 63 at paragraphs 45 and 51; Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, [2007] 1 F.C.R. 203 at paragraph 35; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 at paragraph 22. Accordingly, principles developed in the case law under ATI A are relevant to the interpretation and application of the Act.
[69] The ATIA provides a general right to access government institutions’ records (section 4). This is designed to reflect the general principle of open access to government information: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 at paragraph 16. The dividing line between the Access Statutes is the “personal information” definition in the Act. Pursuant to subsection 19(1) of the ATIA, personal information is subject to a mandatory exemption from disclosure unless it accords with the Act. Very broadly, personal information is information about an identifiable individual that is recorded in any form (see section 3 of the Act.). This Court has held that “personal information” must be given a broad and generous interpretation: Canadian Transportation at paragraph 34.
[70] An application to obtain personal information must be made under the Act, as it provides access rights separate from those under the ATIA. In this case, it is common ground that Mr. Leahy is seeking information about himself and so he properly applied under the Act.
b) Architecture of the Act
[71] The Act’s purposes are twofold: to protect personal information held by government institutions and to provide individuals with a right to access information about themselves (section 2). To achieve these ends, the Act obliges the government institutions listed in its schedule (together with certain Crown corporations (section 3)) to limit the collection, use and disclosure of personal information, and gives citizens and permanent residents the right to access personal information about themselves in the government’s hands.
[72] The right to access personal information in the government’s control is contained in section 12, partially reproduced above. Section 12, however, is subject to sections 18 to 28, which exempt the government from its duty to disclose in a variety of circumstances. These exemptions fall into two categories. Some are based on the type of personal information involved. In these instances, information is exempt from disclosure if it falls into the prescribed class: see, e.g., section 21 (international affairs and national defence) and section 22 (law enforcement or investigations). The exemptions at issue in this appeal, third-party personal information (section 26) and solicitor-client privilege (section 27), fall into this category. Others require the institution to be satisfied that disclosure would result in a particular consequence, for example, a threat to the safety of individuals (section 25).
[73] Unlike the Act, the ATIA purpose provision (section 2) specifically references the necessity that access exceptions be “limited and specific”. The Federal Court has held that the two purpose provisions have “