Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board

Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-01-12
Neutral citation
2018 FCA 10
File numbers
A-75-16
Notes
Digest
Decision Content
Date: 20180112
Docket: A-75-16
Citation: 2018 FCA 10
CORAM:
GAUTHIER J.A.
DE MONTIGNY J.A.
WOODS J.A.
BETWEEN:
HUSKY OIL OPERATIONS LIMITED
Appellant
and
CANADA-NEWFOUNDLAND AND LABRADOR OFFSHORE PETROLEUM BOARD
AND
INFORMATION COMMISSIONER OF CANADA
Respondents
Heard at St. John's, Newfoundland and Labrador, on June 28, 2017.
Judgment delivered at Ottawa, Ontario, on January 12, 2018.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRING REASONS BY:
GAUTHIER J.A.
CONCURRED IN BY:
WOODS J.A.
Date: 20180112
Docket: A-75-16
Citation: 2018 FCA 10
CORAM:
GAUTHIER J.A.
DE MONTIGNY J.A.
WOODS J.A.
BETWEEN:
HUSKY OIL OPERATIONS LIMITED
Appellant
and
CANADA-NEWFOUNDLAND AND LABRADOR OFFSHORE PETROLEUM BOARD
AND
INFORMATION COMMISSIONER OF CANADA
Respondents
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] This is an appeal from a judicial review of an access to information decision (Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2016 FC 117 (the Reasons)) made by the Canada-Newfoundland and Labrador Offshore Petroleum Board (the Board). The Board decided to disclose the names of two employees of Husky Oil Operations Limited (Husky) contained in records responsive to an access request under the Access to Information Act, R.S.C. 1985, c. A-1 (the Access Act), finding that this information was publicly available on the internet. Husky maintains that the names, and the employees’ affiliation with Husky in the context of those documents, is personal information and therefore cannot be disclosed.
[2] In the decision that is the subject of this appeal, Justice Phelan (the Judge) dismissed Husky’s application for judicial review. Husky now appeals to this Court. The Board and the Information Commissioner of Canada (the Information Commissioner) are respondents to this appeal.
[3] At the core of this appeal is the meaning of “personal information” under the Privacy Act, R.S.C. 1985, c. P-21, the definition of which is incorporated by reference in section 19 of the Access Act. More specifically, the issue is whether an employee’s name appearing on administrative documents of the kind at issue here is to be considered “personal information”, and whether the fact that the employee’s name, job title and association with a third party organization is publicly available on the internet, authorizes the disclosure of the employee’s name and job title contained in those documents. That same issue was also raised in a companion case argued before this Court (Suncor Energy Inc. v. Canada-Newfoundland and Labrador Offshore Petroleum Board and the Information Commissioner, 2018 FCA 11) one day prior to the case at bar.
I. Facts [4] An undisclosed party completed an access to information request to the Board asking for certain records. Specifically, the request was for:
1. … the submitted application forms, correspondence, board response, work credit amounts granted, and all associated items and attachments for each program number on the attached March 13, 2012 CNLOPB letter …
2. … all records of any viewing, disclosure, borrowing, and copies being made of these same program numbers … including but not limited to liability agreements, correspondence, transmittals, copy disposition forms, emails, and invoices.
Access to Information Request Form, Public Appeal Book, Tab 3.
[5] In other words, the request was for access to records pertaining to previous requests for geophysical and geological information made by companies to the Board. In response to this access request, the Board identified some records containing information about Husky’s requests for information to the Board.
[6] As the requested documents were generated by a third party, the Board provided copies of the requested documents to Husky pursuant to section 27 of the Access Act and asked whether they consented to the release of the documents. Husky objected to the disclosure of the names, titles and contact information of the two employees who had authored the documents at issue pursuant to section 19 of the Access Act and as a result, the Board agreed to redact the contact information. However, the Board determined that the names and affiliation of the two employees were publicly available since they were available on the internet and came to the conclusion that it was appropriate to exercise its discretion under subsection 19(2) of the Access Act, to release the requested documents without redaction of the names and titles.
II. The impugned decision [7] In terse reasons, the Judge found that Husky had “not advanced any evidence or analysis as to why the Board should not release this information” (Reasons at para. 15). The disadvantage to Husky from this disclosure was unclear. The Judge noted that this “type of concern” was usually dealt with under section 20 of the Access Act, which addresses third party information (Reasons at para. 16). As the Board had discretion to disclose personal information under subsection 19(2) of the Access Act, the Judge found no reason to interfere with the Board’s decision and dismissed the application for judicial review.
III. Issues [8] This appeal raises the following issues:
A. What is the proper standard of review?
B. Are the names and titles of Husky’s employees, in the context of the requested records, “personal information” under subsection 19(1) of the Access Act?
C. Did the Board err in finding that the “personal information” at issue was publicly available and in exercising its discretion to disclose it under subsection 19(2) of the Access Act?
IV. Analysis A. What is the proper standard of review? [9] In Blank v. Canada (Justice), 2016 FCA 189, [2016] F.C.J. No. 694 (QL) (Blank), this Court unanimously came to the conclusion that the applicable standard of appellate review of a Federal Court judge’s decision in a judicial review under section 41 of the Access Act is the standard generally used in appeals of judicial review proceedings, as set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (Agraira). At paragraphs 22 and 23 of the Blank decision, this Court stated:
In an appeal from an application for judicial review, the task of this Court is to assess whether the Federal Court correctly selected the standard of review and then properly applied it: (references omitted).
Contrary to the respondent’s submission, this Court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard. On the contrary, the Supreme Court has held that a court sitting in appeal of a lower court’s judgment on an application for judicial review of an administrative decision should “step […] into the shoes” of the lower court and review for itself the administrative decision on the correct standard of review: (references omitted).
[10] Counsel for the Information Commissioner argued before us that this decision does not sit well with Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 (Merck), where both the majority and the dissenting judges affirmed this Court’s approach in applying the standard of appellate review established in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. It is contended that the Supreme Court of Canada’s ruling in Agraira has not overturned that Court’s previous decision in Merck regarding the distinct standard of appellate review to be applied in judicial review cases under the Access Act. Relying on the dissent in Merck, counsel also argues that the peculiarities of the review process provided for under the scheme of the Access Act account for this distinct approach to appellate review. In Merck at paragraph 249, Justice Deschamps (for the minority) identified these peculiar features as: the Commissioner’s non-adjudicative role in providing independent review; the fact that the institution’s opinions on the obligation to disclose or refuse to disclose records under the Access Act are not authoritative; and the Federal Court judge’s role as the first impartial gatekeeper who makes his or her own findings and draws inferences on the basis of the information in the court’s record at that time. For the reasons that follow, I do not find these arguments persuasive.
[11] First, there is no doubt that the same standard of review should apply to appeals stemming from both section 41 and section 44 of the Access Act. Section 41 provides a right of judicial review for a person who has been refused access to a record (as in Blank), whereas section 44 provides the same right to third parties whose information may be disclosed (as in the case at bar). There are no principled reasons to distinguish between these two scenarios, and none was put forward by the parties.
[12] Second, it could not be expected that the Supreme Court of Canada would explicitly overturn the Merck decision as part of its reasons in Agraira. Indeed, an appellate court rarely comments on the potential impact of its decisions on earlier rulings. The fact that the Court briefly referred to Justice Deschamps’s description in Merck of the process followed by an appellate court when reviewing the decision of a superior court on an application for judicial review should by no means be interpreted as an implicit endorsement of her entire reasoning with respect to the application of the appellate standard of review in the context of the Access Act.
[13] Finally, in my view, there is no compelling reason to distinguish between the judicial review by a superior court of a decision made by a government official and of that made by an administrative tribunal, when determining the standard of review to be applied by an appellate court. In the context of the immigration law, by way of illustration, some decisions are made by one of the four divisions of the Immigration and Refugee Board, while others are made for the Minister by designated departmental officials. Decisions taken by the Minister include: requests for visas and electronic travel authorizations (Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), s. 11), the decision to designate as an “irregular arrival” the arrival in Canada of a group suspected of human smuggling or trafficking (IRPA, s. 20.1), requests for permanent resident status granted for humanitarian and compassionate considerations (IRPA, s. 25(1)), decisions regarding Pre-removal Risk Assessments (IRPA, s. 112), and decisions to revoke a person’s citizenship in cases where it was obtained by false representation or fraud (Citizenship Act, R.S.C. 1985, c. C-29, s. 10).
[14] All of these decisions, whether made by a quasi-judicial body or by delegates of the Minister, are subject to judicial review (with or without leave of the Federal Court), albeit under various standards of review to take into account the expertise of the decision-maker, the procedure followed and the nature of the questions to be determined upon review. At the appeal stage, however, these decisions of the Federal Court are all reviewed under the same standard; indeed, the Supreme Court of Canada in Agraira made no distinction of the kind suggested by Justice Deschamps, and quoted approvingly (at para. 45) the following extract from this Court’s decision in Canada Revenue Agency v. Telfer, 2009 FCA 23 at para. 18, [2009] 4 C.T.C. 123:
Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.
[15] When reviewing the decision made by the head of an institution to withhold information, it is well established that the role of the Federal Court judge is to determine the correctness of the decision made that the withheld information falls within the statutory exemption, and the reasonableness of the discretionary decision to refuse to release exempted information. This is the classic role of a superior court judge sitting on judicial review of an administrative decision. It is also consistent with the language of the Access Act, which grants any person who has been refused access to a record requested under the Access Act, the Information Commissioner and a third party whose information may be disclosed, the right to apply to the Federal Court for a “review” (emphasis added) of the matter. Had Parliament wanted to deviate from that principle, it could have used explicit language to that effect as it did in subsection 13(1) of the Competition Tribunal Act, R.S.C. 1985 (2nd Supp.), c. 19 where it is expressly stated that an appeal lies to this Court from any decision of the Tribunal “as if it were a judgment of the Federal Court”: see Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 at paras. 36-39, [2015] 1 S.C.R. 161.
[16] In Merck, the majority aptly noted that the review by the Federal Court judge of the decision made by the institutional head is not, strictly speaking, a de novo assessment despite some earlier rulings to that effect. Any suggestion that the Federal Court’s task is akin to the role of a trial court, that the Federal Court judge is the first impartial gatekeeper for the party seeking disclosure or objecting to it, and that the appellate court’s role as a result is to review the reviewing judge’s decision and not that of the head of the institution, must in my opinion be rejected. Not only is there no evidence that the institution head or his or her designates do not apply the law impartially, but more importantly the determination of the role played by the Federal Court (either as a trial court or as a reviewing court) does not turn on the identity and characteristics of the original decision-maker but on the powers granted to that Court by Parliament. Since there can be no question that the Federal Court acts in its capacity as a court of judicial review under section 44 of the Access Act, the standard of review in this Court must be the one used generally in appeals of judicial review proceedings.
[17] For all of the above reasons, I shall therefore determine whether the Federal Court selected the correct standard of review and then properly applied it. It is not in dispute that the Judge correctly identified the applicable standard of review, being correctness when deciding whether the information is “personal information” pursuant to section 19(1) and reasonableness when deciding whether the information is publicly available and may be disclosed. Accordingly, this Court must then “step into the shoes” of the Federal Court to assess whether the Judge applied those standards appropriately.
B. Are the names and titles of Husky’s employees, in the context of the requested records, “personal information” under subsection 19(1) of the Access Act? [18] The appellant alleges that the Judge erred in not considering whether the information at issue was personal information as defined by the Privacy Act. The appellant points to the structure of the exemptions to personal information carved out by the definition in subsection 3(j) of the Privacy Act. This subsection exempts, in certain circumstances, the names and titles of government employees, as well as the fact that an individual is a government employee. There is no parallel exemption for private sector employees, and such information, it is argued, should fall within the definition of personal information.
[19] Before addressing the merits of this argument, it is helpful to briefly summarize the objective and the key provisions of the Access Act. Its purpose is clearly set out in subsection 2(1) of that act: to provide a right of access to information in records under the control of a government institution, subject to some necessary exceptions that must be strictly construed. This provision reads as follows:
2 (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
2 (1) La présente loi a pour objet d’élargir l’accès aux documents de l’administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
[20] In his seminal reasons in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 61, 148 D.L.R. (4th) 385 (Dagg), Justice La Forest (dissenting but not on this point) stated emphatically that the overarching purpose of the Access Act is to facilitate democracy, first by ensuring that citizens have the information required to participate meaningfully in the democratic process, and secondly by ensuring that politicians and officials may be held to account to the public. See also: Merck at para. 22. This right of access to information has been described as a quasi-constitutional right: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at para. 40, [2011] 2 S.C.R. 306; Statham v. Canadian Broadcasting Corporation, 2010 FCA 315 at para. 1, [2012] 2 F.C.R. 421.
[21] One of the exemptions from disclosure is found in section 19 of the Access Act and relates to personal information:
Personal information
Renseignements personnels
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.
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.
Where disclosure authorized
Cas où la divulgation est autorisée
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
(a) the individual to whom it relates consents to the disclosure;
a) l’individu qu’ils concernent y consent;
(b) the information is publicly available; or
b) le public y a accès;
(c) the disclosure is in accordance with section 8 of the Privacy Act.
c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
[22] Personal information in section 19 of the Access Act is defined by reference to section 3 of the Privacy Act, which reads in part as follows:
personal information means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
renseignements personnels Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
...
[…]
(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,
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;
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
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) 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
j) un cadre ou employé, actuel ou ancien, d’une institution fédérale et portant sur son poste ou ses fonctions, notamment :
(i) the fact that the individual is or was an officer or employee of the government institution,
(i) le fait même qu’il est ou a été employé par l’institution,
(ii) the title, business address and telephone number of the individual,
(ii) son titre et les adresse et numéro de téléphone de son lieu de travail,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iii) la classification, l’éventail des salaires et les attributions de son poste,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(iv) son nom lorsque celui-ci figure sur un document qu’il a établi au cours de son emploi,
(v) the personal opinions or views of the individual given in the course of employment,
(v) les idées et opinions personnelles qu’il a exprimées au cours de son emploi;
…
[…]
[23] The right to privacy is no less important than the right to disclosure of information, and has also been described as a quasi-constitutional right: see, for example, Lavigne v. Canada (Commissioner of Official Languages), 2002 SCC 53 at paras. 24-25, [2002] 2 S.C.R. 773. It is also encompassed, to some extent, by section 8 (the right to be free from unreasonable searches and seizures) and section 7 (the right to life, liberty and security of the person) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). In Dagg (at para. 64), Justice La Forest, referring to section 2 of the Privacy Act, described its purpose as being twofold: to protect personal information held by government institutions, and to provide individuals with a right to access information about themselves.
[24] The Privacy Act and the values that it enshrines are therefore no less worthy of protection than the right to access to information. Indeed, the Supreme Court of Canada has made it clear that the two statutes have equal status and must be read together, having regard to the purposes of both in considering whether a government record constitutes “personal information”. In Dagg (at para. 51), Justice La Forest quoted Chief Justice Isaac of this Court in Dagg v. Canada, [1995] 3 F.C. 199, 124 D.L.R. (4th) 553, stating:
It is obvious that both statutes are to be read together, since section 19 of the Access Act does incorporate by reference certain provisions of the Privacy Act. Nevertheless, there is nothing in the language of either statute which suggests, let alone compels, the conclusion that the one is subordinate to the other. They are each on the same footing. Neither is pre-eminent. There is no doubt that they are complementary and must be construed harmoniously with each other according to well-known principles of statutory interpretation in order to give effect to the stated parliamentary intention and in order to ensure the attainment of the stated parliamentary objectives.
[25] Accordingly, Justice La Forest made it clear that even though access is the general rule under the Access Act, it does not follow that the “personal information” exemption should receive a “cramped” interpretation as such an approach would effectively read the Privacy Act as subordinate to the Access Act (Dagg, at para. 51). In the same vein, the statement in section 2 of the Access Act that exceptions to access should be “limited and specific” must not be interpreted as creating a presumption in favour of access. It simply provides that the party seeking to avoid disclosure of information bears the onus to show, on a balance of probabilities, that the information falls within one of the exceptions: see Merck at paras. 94-95; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 at para. 21, [2003] 1 S.C.R. 66; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at para. 113, [1992] F.C.J. No. 1054 (QL); Rubin v. Canada (Minister of Health), 2001 F.C.T. 929 at para. 43, [2001] F.C.J. No. 1298 (QL); Canada Post Corp. v. Canada (National Capital Commission), 2002 F.C.T. 700 at para. 8, [2002] F.C.J. No. 982 (QL). Moreover, subsection 19(1) of the Access Act and the parallel prohibition against disclosure of personal information in section 8 of the Privacy Act makes it clear that privacy is paramount over access, insofar as it is encompassed by the definition of “personal information” in section 3 of the Privacy Act: Dagg at para. 48; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13 at paras. 2, 22 and 25, [2006] 1 S.C.R. 441.
[26] However, the protection of personal information is not absolute. If any of the conditions in subsection 19(2) are met, and no other exemptions apply, the government institution should disclose the information.
[27] The Judge did not (at least explicitly) grapple with the notion of “personal information”, and seems to have taken it for granted that the information at issue (which the Board considered to be the name and position of the two employees who made an access request to the Board on behalf of the appellant) was indeed “personal information” for the purposes of section 19 of the Access Act and of section 3 of the Privacy Act. Counsel for the appellant submits that the Judge erred in failing to consider that the personal information at stake was not just the names of the employees and their affiliation with Husky, but also the information in the context of the requested records, namely the information revealing the employees’ involvement in Husky’s procurement of certain geophysical and geological information from the Board.
[28] A useful starting point to determine the breadth of “personal information” is, once again, the discussion of that concept by Justice La Forest in Dagg. At paragraph 68 of his reasons, he recognized the expansive nature of the definition found in the Privacy Act, and noted that the list of specific examples that follows the general definition is not meant to limit the scope of the opening words. In his view, the intent of that definition is to capture “any information about a specific person, subject only to specific exceptions” (Dagg at para. 69) (emphasis in original).
[29] The name of an individual, per se and without any context, would not in my view be considered as personal information. A blank sheet of paper with a name on it found in a public place does not reveal anything about that person. As the opening words of the definition of “personal information” reveals, the information that can be considered “personal information” must relate to an “identifiable” individual. It is only when a name can be associated with other personal information that its disclosure will be considered off limit. This is indeed what subsection 3(i) of the Privacy Act under the definition of “personal information” seems to suggest:
(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,
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;
[30] In the case at bar, the first part of this provision is clearly not applicable as there is no personal information relating to the two employees in the requests for information made to the Board. The name of the employees would not be disclosed, therefore, together with other personal information. Can it be said, however, that the disclosure of the employees’ names would reveal information about these individuals in the context of their request to the Board?
[31] Commenting on that second branch of subsection 3(i) of the Privacy Act in Dagg, Justice La Forest found that the disclosure of the name itself need not reveal “personal” information, but only information about an identifiable individual. He came to that conclusion by contrasting the wording of the first and second branch of that provision (at paras. 84-85):
The appellant argues, however, that this provision should be so read as to require that the disclosure of the name itself reveal personal information about the individual. In his view, a literal interpretation of para. (i) fails to recognize that the disclosure of a document will always reveal some information about the individual by connecting him or her with other information contained in the document. Such an interpretation, he states, would prohibit any disclosure where the name revealed any information whatsoever about the individual. In the result, names on documents would invariably constitute “personal information”.
I cannot accept this submission. Paragraph (i) clearly states that a record is personal information if the disclosure of the name itself would reveal information about the individual. It simply does not require this information to be “personal”. Notably, the first part of para. (i) does refer to “personal” information that appears with the name of the individual. It is highly unlikely that the drafters of this provision would have inadvertently omitted to include the word “personal” in the second part of para. (i) when they included it in the first. (emphasis in original)
[32] In that case, the distinction was of no consequence since the disclosure of the names in the sign-in logs did reveal personal information (i.e. that these individuals were on specific premises, on particular days and between specified times). In the case at bar, the distinction could be of more significance as it is at least disputable that the documents wherein the employees’ names are found could convey personal information about these individuals.
[33] This Court has struggled with this issue in at least two decisions, with seemingly contradictory results. In the first of these two decisions (Information Commissioner of Canada v. Canadian Transportation Accident Investigation and Safety Board, 2006 FCA 157, [2007] 1 F.C.R. 203 (NavCanada)), upon which both the respondent and the intervener unsurprisingly rely, the Court unanimously found that the concept of “personal information” and, indeed, the Privacy Act as a whole, must be understood in the context of the development of the right to privacy. Relying heavily on Justice La Forest’s reasons in Dagg and on the constitutional jurisprudence developed in the context of sections 7 and 8 of the Charter, the Court found that privacy “connotes concepts of intimacy, identity, dignity and integrity of the individual” (at para. 52).
[34] Applying that conceptual approach, the Court noted that the information at issue in that case (records relating to four air occurrences which were subject to distinct investigations and public reports by the Safety Board) was of a professional and non-personal nature and did not fall within the concept of “privacy” and the values that concept is meant to protect. In other words, the information was not “about” an individual but related to the status of the aircraft, weather conditions, matters associated with air traffic control and the utterances of the pilots and controllers:
The information contained in the records at issue is of a professional and non-personal nature. The information may have the effect of permitting or leading to the identification of a person. It may assist in a determination as to how he or she has performed his or her task in a given situation. But the information does not thereby qualify as personal information. It is not about an individual, considering that it does not match the concept of “privacy” and the values that concept is meant to protect. It is non-personal information transmitted by an individual in job-related circumstances. (emphasis in original)
NavCanada at para. 54.
[35] One year later, a different panel of this Court upheld in a short decision a ruling of the Federal Court to the effect that names, titles, business phone and fax numbers of employees who had interacted with Health Canada on the appellant’s behalf were personal information, and thus exempt under subsection 19(1) of the Access Act: see Janssen-Ortho Inc. v. Canada (Minister of Health), 2007 FCA 252, 367 N.R. 134 (Janssen-Ortho). At issue in that case were not only the names and workplace contact information, as is the situation here, but also their opinions, suggestions and conclusions concerning the withdrawal of a prescription drug from the Canadian market during negotiations with Health Canada. It is in this context that the Court, in a single paragraph, dealt with the “personal information” argument (at para. 8):
The Minister’s argument relating to personal information was that the Motions Judge interpreted the definition in Section 3 of the Privacy Act which is referred to in section 19(1) under the Access to Information Act, R.S.C. 1995, c. A-1, too broadly in that it was only company information which was revealed rather than personal information. However, the Supreme Court of Canada in Dagg v. Canada (Minister of Finance) (1997), 148 D.L.R. (4th) 385 (S.C.C.) interpreted the section broadly so as to capture any information about a person including their identity.
[36] In my opinion, these two decisions are not necessarily inconsistent. It is highly unlikely that this Court in Janssen-Ortho meant to reverse its earlier, one year old decision, without even mentioning it. I agree with the respondent and the intervener that the different results in NavCanada and Janssen-Ortho can be explained by the very different nature of information at stake in each of these cases. While the records considered in NavCanada appeared to have been purely transactional and informational, the disclosure of the names and titles of the individuals involved in Janssen-Ortho would have revealed far more intimate details about these individuals, their work and their opinions:
In my view, the disclosure of the employees’ names would reveal information about them which is not in the public domain. This information includes the fact that they attended meetings, wrote letters and authored studies related to the interface between JOI and Health Canada about whether Prepulsid should be withdrawn from the Canadian market. There is nothing in the Respondent’s affidavit evidence which links the named employees to these negotiations. The public does not know of their involvement or about their opinions, suggestions and conclusions.
Janssen-Ortho Inc. v. Canada (Minister of Health), 2005 FC 1633 at para. 30, [2005] F.C.J. No. 2014 (QL).
[37] It is obviously impossible to draw a bright line between the facts of these two cases, and indeed to neatly categorize the myriad of factors to be taken into account before determining whether the disclosure of a name would reveal information about that individual in the context of a particular record. In the absence of any indication that the Court intended to reverse itself in Janssen-Ortho, however, it must be assumed that NavCanada is still good law and that the different result in Janssen-Ortho can only be explained by the different nature of the information sought to be disclosed in those two cases. As stated in Miller v. Canada (Attorney General), 2002 FCA 370 at para. 10, 220 D.L.R. (4th) 149, a panel of this Court will not overrule a previous decision of another panel unless it can be demonstrated that the earlier decision was “manifestly wrong”; in other words, it must be shown that the Court overlooked a relevant statutory provision or a binding precedent. In Janssen-Ortho, the Court did not even consider that possibility, with the result that NavCanada cannot be taken to have been implicitly set aside.
[38] Names appearing on documents will always reveal something about an individual. But such a broad test cannot be the standard to determine when the name on a document shall not be disclosed. Even if we accept that the information need not be “personal” for the purposes of the second branch of subsection 3(i) of the Privacy Act, it seems to me that it must tell us something of significance in relation to a person lest the protection afforded to privacy becomes meaningless. The illustrations that we find in subsections (a) to (h) under the definition of “personal information” in section 3 of the Privacy Act can all be said to relate to the intimacy and the core identity of an individual, and refer to the type of information the dissemination of which a person would prefer to control. Subsections (a) to (h) read as follows:
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
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) 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,
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) any identifying number, symbol or other particular assigned to the individual,
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
(d) the address, fingerprints or blood type of the individual,
d) son adresse, ses empreintes digitales ou son groupe sanguin;
(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,
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) 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,
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) the views or opinions of another individual about the individual,
g) les idées ou opinions d’autrui sur lui;
(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, …
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