Date: 20161019

Docket: T-924-14

Citation: 2016 FC 1167

Ottawa, Ontario, October 19, 2016

PRESENT:    The Honourable Mr. Justice Boswell

BETWEEN:

ANTON OLEYNIK

Applicant

and

THE OFFICE OF THE PRIVACY COMMISSIONER OF CANADA

Respondent

JUDGMENT AND REASONS

[1]               The Applicant, Dr. Anton Oleynik, is an Associate Professor of Sociology at Memorial University in St. John’s, Newfoundland and Labrador. He has brought an application under section 41 of the Privacy Act, RSC 1985, c P-21 [the Act] for review of the response by the Office of the Privacy Commissioner of Canada [OPC] to the Applicant’s request dated January 30, 2013, for the following personal information:

“All the documents in the custody and control of the OPC that contain my name {(OLEINIK or OLEYNYK)}. Their [sic] list includes, but not limited to, e-mail exchanges and attached documents. Hence, I request that a search on the OPC back up email server is conducted.”

I.                   Background

[2]               The genesis of this application stems from the Applicant being denied a research grant from the Social Sciences and Humanities Research Council [SSHRC]. Since that denial, some nine years ago now, the Applicant has made numerous requests for access to information and has also initiated court proceedings not only in this Court but in other courts in Quebec, Alberta, and Newfoundland and Labrador.

[3]               In September 2008, the Applicant submitted a complaint to the OPC about an access to information request he had made to the SSHRC. After the OPC determined that his complaint was not well-founded, the Applicant commenced an application in this Court under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, for judicial review of the OPC’s decision; that application, however, was dismissed on November 7, 2011, and the Federal Court of Appeal dismissed the Applicant’s appeal on September 4, 2012 (see: Oleinik v Canada (Privacy Commissioner), 2011 FC 1266 [Oleinik 2011]; aff’d 2012 FCA 229).

[4]               In June 2011, the OPC received a second complaint from the Applicant about the SSHRC, alleging that the SSHRC had not provided him with all personal information to which he was entitled. Prior to completion of the OPC’s investigation into this second complaint, the Applicant submitted a request for personal information to the OPC dated December 2, 2011 [the First Request], asking for “all documents in the custody and control of the OPC” containing his name, including “e-mail exchanges and attached documents” as well as information stored on the OPC’s back-up e-mail server. After the OPC had issued its report dated December 16, 2011, concerning the second complaint against the SSHRC, the Applicant made a second request to the OPC dated January 5, 2012 [the Second Request]; this time he asked for all documents the OPC had created in the course of investigating the second SSHRC complaint. The OPC responded to this Second Request on January 6, 2012, informing the Applicant that the requested information could not be disclosed under section 22.1 of the Act since the time period had not expired for making an application to the Federal Court under section 41 of the Act to review the OPC’s response to the second complaint against the SSHRC.

[5]               The OPC responded to the Applicant’s First Request in a letter dated January 26, 2012, disclosing certain information to the Applicant but withholding other information under sections 22.1, 26 and 27 of the Act and also under subsection 12(1) since it did not constitute personal information of the Applicant. The OPC further informed the Applicant in this letter that no search of its back-up e-mail servers had been conducted since it did not consider this information as being reasonably retrievable.

[6]               The response letters from the OPC to the Applicant’s first two requests for information each noted that he was entitled to file a complaint concerning the processing of his requests with the “Privacy Commissioner of Canada, Ad Hoc” [the PCAH]. However, the Applicant chose instead to question the OPC’s processing of his requests in this Court by commencing an application for judicial review on February 2, 2012, challenging the OPC’s report concerning his second complaint about the SSHRC and also asking for an order directing the OPC to give him access to his personal information in the OPC’s custody and control. In response to this application, the OPC initiated a motion to strike out the Applicant’s application for judicial review. Prothonotary Aalto struck out the application for judicial review without leave to amend on January 17, 2013, finding that the application was an abuse of process insofar as it related to the OPC’s report concerning the SSHRC and also that the Applicant had not exhausted the administrative remedies available to him to make a complaint to the PCAH concerning the OPC’s refusal to disclose all of the information requested by him (see: Oleinik v Canada (Privacy Commissioner), 2013 FC 44, 425 FTR 228 [Oleinik 2013]).

[7]               After the Applicant’s application for judicial review was struck out, he sent a third request to the OPC dated January 30, 2013 [the Third Request], again asking for “all documents in the custody and control of the OPC that contain my name {(OLEINIK or OLEYNYK)}”, including “e-mail exchanges and attached documents”, and again requesting that a search of the OPC’s back-up e-mail server be conducted. In responding to this Third Request, the OPC notified the Applicant on February 27, 2013, that an additional thirty days would be required to comply with the request. The Applicant complained about this delay in a letter dated March 6, 2013. John Sims, the PCAH, replied to this letter with a letter dated March 12, 2013, advising the Applicant that he would begin an investigation.

[8]               In a letter dated April 2, 2013 [the Decision], the OPC disclosed certain information to the Applicant but also withheld other information, stating in part that:

We have now completed the processing of your request. Paragraph 12(1)(b) of the Privacy Act (the “Act”) states that the individual that has made the request for access to personal information “provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution”. With respect to your request that our Office conduct a search of back-up servers, it is the position of this Office that the information on back-up tapes/servers is not considered “reasonably retrievable” and that the purpose of the back-up system is only for disaster recovery. For that reason no such search was conducted. [Emphasis in original]

Please find enclosed a copy of the records responsive to your above-noted request. You will note that certain information has been withheld from disclosure. This information has been withheld pursuant to sections 26 (information about another individual), 27 (solicitor-client privilege) and 22.1 (information obtained by the Privacy Commissioner) of the Act. In instances where we have cited subsection 12(1) of the Act, the information does not constitute your personal information under the Act. As the Director of Access to Information and Privacy, and as an authorized delegate for decisions rendered under sections 26 and 27 of the Act, I decided the applicability of the above-noted exemptions and exercised my discretion where required.

Subection [sic] 12(1) of the Act allows you the right to request access to your personal information. In Mislan v. Canada (Minister of Revenue), 1998 FC 704, the Federal Court held that this right is not absolute and the “paramount power is the discretionary power granted to the head of the government institution”.

The information withheld under section 26 meets the definition of personal information about another identifiable individual as defined in section 3 of the Act. In balancing any competing interests involved in applying this exemption, I am of the view that protecting the personal information of other individuals in no way obstructed your rights to access your personal information. In all cases, the information appeared on the same page or within the same document as your personal information.

The information withheld under section 27 met the requirements of solicitor-client privilege as set out in the jurisprudence of the Supreme Court of Canada, including Solosky v. the Queen (1979), [1980] 1 S.C.R. 821 and Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319. The exchanges that included legal advice provided by lawyers from our Office or any legal agents were intended to be confidential. …

You are entitled to file a complaint concerning the processing of your request. Should you decide to avail yourself of this right, please address your complaint to:

Privacy Commissioner of Canada, Ad Hoc

Suite 229-99 Fifth Avenue

Ottawa, ON  K1S 5P5

[9]               The affidavit dated July 11, 2014 of Andréa Rousseau Saunders, the OPC’s Chief Privacy Officer, states that the Applicant’s Third Request generated 17,842 pages of information that were responsive to the request. This documentation included information provided by the OPC to the Applicant in response to his First Request as well as additional information subsequent to the date of the First Request up to the date of the Third Request. Of the 17,842 pages which contained responsive information, 15,131 pages were released to the Applicant without redaction, 456 pages were released with certain portions redacted, and 1,923 pages were withheld entirely from the Applicant; the remaining pages were deemed to be duplicates or not relevant.

[10]           Shortly after the Applicant’s receipt of the OPC’s response to his Third Request, he wrote to the PCAH complaining about the OPC ignoring statutory deadlines, its unwillingness to search back-up tapes despite his willingness to pay for the costs of the search, and the OPC’s application of statutory exemptions to withhold certain information from him. Ultimately, the PCAH found the Applicant’s complaints about the OPC and its processing of his Third Request for information to be not well-founded in his reports of findings dated July 10, 2013, October 22, 2013, and February 15, 2014.

[11]           Following receipt of the PCAH’s report dated February 15, 2014, the Applicant initiated the present application under section 41 of the Act on April 16, 2014. He also filed a statement of claim in this Court on June 6, 2014, seeking damages as against the Attorney General of Canada based, in part, upon alleged breaches of the Act and the Access to Information Act, R.S.C. 1985, c. A-1, in relation to his application for a grant from the SSHRC. The Attorney General’s motion to strike out this statement of claim succeeded on August 13, 2014, with the Court finding that the claim failed to disclose a reasonable cause of action (see: Oleynik v. Canada (Attorney General), 2014 FC 896, 464 FTR 114).

II.                Issues

[12]           Although the parties have raised and stated various issues to be considered on this application, in my view the pertinent issues to be addressed boil down to the following four questions:

1.                  Can the reports of the PCAH be reviewed on this application under section 41 of the Act?

2.                  What is the appropriate standard of review?

3.                  Was the OPC’s determination that information on its back-up tapes or servers was not “reasonably retrievable” reasonable?

4.                  Did the OPC err in refusing access to certain information by virtue of subsection 12(1) or sections 22.1, 26, or 27 of the Act?

III.             Analysis

A.                Can the reports of the PCAH be reviewed on this application under section 41 of the Act?

[13]           By virtue of Rule 302 of the Federal Courts Rules, SOR/98-106, unless the Court orders otherwise, an application for judicial review normally may be made in respect of only one decision (see: Canada (Prime Minister) v. Khadr, [2010] 1 FCR 73 at para 36, 2009 FCA 246). In this case, however, the Applicant raises various questions and concerns about not only the OPC’s Decision, but also the PCAH and his findings and reports. Furthermore, the relief sought by the Applicant is a mixture of requests regarding the OPC and the PCAH. The Applicant’s central complaint though appears to be with respect to the OPC’s Decision and not the PCAH and his findings and reports. Although he requests the certification of a question concerning the operation and independence of the PCAH, the Applicant’s primary request for relief concerns the OPC’s refusal to provide certain information as well as its refusal to check its back-up tapes; those matters relate to the OPC’s Decision and not to the PCAH and his findings and reports.

[14]           Accordingly, in my view it is only the OPC’s Decision, rather than the PCAH’s reports and findings, which is the decision to be reviewed on this application under section 41 of the Act. Indeed, the Applicant himself acknowledges as much in the first paragraph of his Notice of Application where he states that he applies for judicial review in respect of the OPC’s response to his access request on April 2, 2013 (though he later refers to the “decision” that was communicated to him as being the report of findings of the PCAH which was communicated to him on March 3, 2014).

[15]           Furthermore, and more to the point, it is my view that this Court does not have jurisdiction under section 41 of the Act to review the findings and reports of the PCAH; this section states that:

[16]           In the circumstances of this case, the OPC itself was the government institution which refused to disclose certain information; the PCAH and his reports performed the role that would have otherwise and usually been performed by the OPC had it been a government institution other than the OPC which had refused to disclose certain information. Case law has clearly established that the findings and report of the OPC, or in this case the PCAH, concerning an institution’s refusal to disclose certain information are not binding upon a government institution (see: Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 at para 75, 438 NR 280 [Leahy]), although they are an important consideration in a review by this Court under section 41 of the Act (see: Canadian Association of Elizabeth Fry Societies v Canada (Public Safety and Emergency Preparedness), 2010 FC 470 at para 44, [2011] 3 FCR 309). Moreover, the OPC’s findings and report concerning a government institution’s refusal to disclose certain information are not open to review under section 41 of the Act since it is the government institution, not the OPC, which is required to justify a refusal to disclose certain information. In this regard, it is appropriate to recall the Court’s words in Oleinik 2011, where Justice Rennie (as he then was) stated:

[7]        As Justice Tremblay-Lamer stated in Keita v Canada (Minister of Citizenship and Immigration), 2004 FC 626 at para 20: “The validity of the [Privacy] Commissioner’s recommendations is not subject to the Court’s powers of review.  The precedents on this point are clear and ample.”  In reaching this conclusion Justice Tremblay-Lamer relied on the decision of the Federal Court of Appeal, in Canada (Attorney General) v Bellemare, [2000] FCJ No 2077 (FCA) at paras 11-13, which involved allegations lodged against the Information Commissioner similar to those lodged by the applicant herein against the Privacy Commissioner.  Noël J.A. held:

Section 41 does not provide for a recourse against the Information Commissioner (Wells v. Canada (Minister of Transport), T-1729-92, April 19, 1993 [(1993), 48 C.P.R. (3d) 312 (Fed.T.D.)]).

[…]

In short, the Court has no jurisdiction, pursuant to section 41, to conduct a judicial review of the Information Commissioner’s findings and recommendations. It was therefore not open to the motions Judge to allow the application for judicial review to continue.

[17]           The PCAH’s findings and reports in this case, therefore, cannot be reviewed under section 41 of the Act; in my view, they are analogous to those which the OPC could or might have made had a government institution other than the OPC refused to disclose certain information. It should be noted, however, that this conclusion does not oust or remove the Court’s jurisdiction to review findings and reports of the PCAH or any breach of procedural fairness in an investigation by the PCAH. The PCAH has been delegated many of the Privacy Commissioner’s powers, duties and functions in order to carry out the OPC’s review function when the OPC is the government institution which has refused to disclose certain information. How the PCAH has exercised such delegated authority could be open to judicial review by way of a separate application under section 18.1 of the Federal Courts Act.

[18]           In this case, the Applicant did not directly challenge the findings and reports of the PCAH by way of a separate application for judicial review under section 18.1 of the Federal Courts Act, and he cannot indirectly do so now in the context of this application under section 41 of the Act. It may well be, as the Court noted in Oleinik 2013 (at para 24), that the PCAH may not be completely independent inasmuch as the PCAH is appointed by the Privacy Commissioner and not by Parliament; but that is not the issue now before the Court and, in any event, that is a matter which would need to be addressed by a branch of government other than this Court.

B.                 What is the appropriate standard of review?

[19]           In addressing this issue, I begin by noting that in its seminal decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], the Supreme Court of Canada collapsed the variants of reasonableness review into a single form of “reasonableness” review, with the result that judicial review now comprises two standards of review: correctness and reasonableness.

[20]           As to the reasonableness standard of review, the Supreme Court stated in Dunsmuir that:

[47]      Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness… A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[21]           The Supreme Court further stated in Dunsmuir with respect to the correctness standard of review that:

[50]      As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law.  This promotes just decisions and avoids inconsistent and unauthorized application of law.  When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question.  The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

[22]           In this case, the appropriate standard of review in respect of the OPC’s Decision is dependent on the two substantive aspects of the Decision, the first being the OPC’s refusal to search its back-up servers and the second being its application of various statutory exemptions to refuse disclosure of certain information to the Applicant. Each of these aspects engages a different standard of review.

[23]           As to the OPC’s refusal to search its back-up servers, this involves a question of statutory interpretation concerning the meaning of “reasonably retrievable” under paragraph 12(1)(b) of the Act. There is some case law which suggests that correctness is the appropriate standard for review of a refusal to disclose information under section 12. For example, in Murchison v Export Development Canada, 2009 FC 77, 354 FTR 18 [Murchison], Justice Zinn concluded as follows:

[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.

[24]           The correctness standard of review was applied in Murchison because the government institution in that case had refused to disclose certain information on the basis of its interpretation of what constituted “personal information” under section 12 of the Act. The same standard was also applied in Canada (Information Commissioner) v RCMP Commissioner, [2003] 1 SCR 66, 2003 SCC 8 [RCMP Commissioner], a case where the RCMP Commissioner had refused to disclose certain records based on his interpretation of what constituted “personal information” as defined by section 3 of the Act.

[25]           The circumstances of this case, however, are distinguishable from those in Murchison and RCMP Commissioner because the government institution that denied disclosure of certain information in this case is the OPC. In my view, the OPC’s interpretation of the words “reasonably retrievable” under section 12 of its home statute should be adjudged and assessed against a reasonableness standard of review. A standard of reasonableness presumptively applies because the OPC was interpreting its home statute: Alberta (Information & Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 30, [2011] 3 SCR 654 [Alberta Teachers]. The OPC has expertise in the matter and, accordingly, is entitled to due deference (see: Dunsmuir, at paras 54, 68 and 124; Alberta Teachers at para 39; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 13, [2011] 3 SCR 708; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para 24, [2011] 3 SCR 471; and John Doe v Ontario (Finance), 2014 SCC 36 at para 17, [2014] 2 SCR 3). The OPC’s interpretation of “reasonably retrievable” does not involve a question of law central to the legal system, and there is no compelling reason to displace the presumption that a standard of reasonableness applies to this aspect of the Decision.

[26]           Accordingly, I conclude that the OPC’s interpretation of “reasonably retrievable” and its decision not to search its back-up servers should be reviewed on a standard of deferential reasonableness. This conclusion accords with that of the Federal Court of Appeal in Leahy where the decision by the government institution in that case to restrict the scope of its search for information to one location was assessed and reviewed on a standard of reasonableness (see Leahy, at paras 100 and 109).

[27]           As to the OPC’s application of various statutory exemptions to refuse disclosure of certain information to the Applicant, the jurisprudence shows that there is a two-step process of review. This process was summarized by the Court in Braunschweig v Canada (Public Safety), 2014 FC 218, 449 FTR 252, where Justice Noël stated:

[29]      When a Court is called upon to review a government institution’s decision not to disclose personal information, it must undertake a two-step process. It must first determine if the information sought falls within the description of the exempt information under the applicable provision of the Act, and this first portion is reviewable under the standard of correctness. If found to be correct then the Court must determine whether the government institution has appropriately exercised its discretion not to disclose the information in question. This second portion of the process must be reviewed following the standard of reasonableness (Barta v Canada (Attorney General), 2006 FC 1152 at paras 14-15, [2006] FCJ No 1450; see also Leahy v Canada (Minister of Citizenship and Immigration), 2012 FCA 227 at paras 96-100, [2012] FCJ No 1158)....

[28]           Accordingly, the OPC’s assessment in this case of whether certain information constituted exempt information under an applicable provision of the Act attracts review on the standard of correctness; but whether the OPC appropriately exercised its discretion not to disclose certain information attracts review on the standard of reasonableness.

C.                 Was the OPC’s determination that information on its back-up tapes or servers was not “reasonably retrievable” reasonable?

[29]           The Applicant argues that copies of e-mails and information on back-up systems are discoverable in legal proceedings, and that information retrieval from back-up tapes is readily available. According to the Applicant, the question is whether the difficulties in retrieving information from back-up systems can be dealt with at a reasonable cost. The Applicant proposes various solutions to deal with the cost of such retrieval and points to decisions by provincial privacy commissioners which show that back-up records should and can be searched.

[30]           For its part, the OPC argues it was reasonable in light of the Applicant’s broad request for information that it refused to search its back-up systems because the cost and effort would be excessive. According to the OPC, the phrase “reasonably retrievable” in paragraph 12(1)(b) and subsection 13(1) of the Act, and particularly the French version “puisse les retrouver sans problèmes sérieux,” suggests that “reasonably retrievable” relates not simply to whether a document can be located but, rather, requires consideration of whether the document is retrievable with reasonable, not excessive, effort. In the circumstances of this case, the OPC says it was reasonable to refuse to search its back-up systems since there was no evidence to show that there was additional information on the back-up.

[31]           Subsection 12(1) of the Act provides as follows:

[32]           Was it reasonable for the OPC in this case to determine that information on its back-up systems was not “reasonably retrievable” or, according to a literal translation of the French version, “retrievable without serious difficulties”?

[33]           On the whole, and based on the evidence in the record, I find that it was reasonable in the circumstances of this case for the OPC to determine that information on its back-up systems was not reasonably retrievable. The evidence shows that acceding to the Applicant’s broad request that the OPC’s back-up e-mail server be searched would have required reimaging or restoring all of the OPC’s servers and not just e-mails in in-boxes on its back-up tapes; the OPC’s back-up tapes are used for disaster recovery purposes. Moreover, there is no evidence that there was any additional or deleted information on the OPC’s back-up systems; and, it also warrants note, that the PCAH found in his report dated February 15, 2014, that the Applicant’s complaint about the OPC’s failure to search its back-up tapes was not well-founded.

[34]           The burden was upon the Applicant to provide sufficient information about his requested information in order to make it “reasonably retrievable” by the OPC. The Applicant did not specify the dates or recipients of the e-mails he sought in his request to the OPC to search its back-up e-mail server. The Applicant may have supplied a sufficiently specific location for the requested information, but that does not necessarily or automatically make any such information “reasonably retrievable.” A personal diary which slips from its owner’s hands into the ocean from the deck of a cruise ship en route across the Atlantic Ocean would not be reasonably retrievable despite the fact that all who witnessed the mishap know the location or place where the diary was lost.

[35]           Before leaving this issue, it is necessary to add a few comments as to the thoroughness of the OPC’s searches for information in response to the Applicant’s Third Request for information. The Applicant contends that the OPC’s search for documents was not thorough or complete, and he points to several documents the OPC apparently missed since they were not included among those released to him. The OPC argues that unless there is evidence of deficiency in the search or that a search was unreasonable, the Court should not intervene; according to the OPC, the standard by which the adequacy of its search for documents should be assessed is, in view of McBreairty v College of the North Atlantic Board of Governors, 2010 NLTD 28 at para 43, 293 Nfld & PEIR 321, not one of perfection but “all reasonable effort.” In my view, however, it is not necessary to determine the standard to which the OPC should be held in respect of its searches in response to a request for information because the evidence offered by the Applicant in this regard is insufficient to show that the searches for information in this case were significantly deficient or unreasonable.

D.                Did the OPC err in refusing access to certain information by virtue of subsection 12(1) or sections 22.1, 26, or 27 of the Act?

[36]           Whether the information exempted by the OPC in response to the Applicant’s Third Request for information falls within one of the statutory exemptions is a de novo review and the standard of review, as noted earlier, is that of correctness. The OPC’s exercise of discretion whether to exempt certain information from disclosure is subject to review on a standard of reasonableness. Furthermore, the OPC bears the burden of justifying non-disclosure of certain information in this case (see: Layoun v Canada (Attorney General), 2014 FC 1041 at para 22).

[37]           The Applicant identifies more than 100 questionable exemptions invoked by the OPC. The OPC states that the exemptions were properly applied. The OPC withheld certain information from the Applicant by virtue of subsection 12(1) and sections 22.1, 26, and 27 of the Act. In this case, the OPC determined that some 1,923 pages should be withheld entirely from the Applicant and another 456 pages should be partially released to him.

[38]           The Court has reviewed in detail all of the information withheld from the Applicant to determine whether it was correctly and reasonably not disclosed to him by the OPC. Although there is some discrepancy between the name and numbering of the .pdf files on the CD attached as Exhibit “F” to the public affidavit of Andréa Rousseau Sanders (which CD contains all of the information released to the Applicant), and those .pdf files on the CD attached to her confidential affidavit dated August 13, 2014 (which CD contains all of the information released to and also withheld from the Applicant), this discrepancy has not prevented the Court from identifying and reviewing the exempted information (albeit requiring more time than should have been the case). Attempts to resolve this discrepancy subsequent to the hearing of this matter were unproductive, not the least because of several errors identified by the Applicant in the cross-referencing chart and an additional CD of Exhibit “F” provided by OPC’s counsel. Accordingly, the Court has ignored that chart and the additional CD of Exhibit “F” which contains the disclosed information in one continuous .pdf file (rather than numerous .pdf files as on the initial CD). The Court has thus restricted its review to the documentation as contained on the CD filed as Exhibit “F” and that on the confidential CD.

[39]           The OPC’s reliance upon the four provisions of the Act noted above to withhold information from the Applicant will be sequentially addressed below. Before doing so, however, one page of the documentation released to the Applicant should be mentioned. On page 606 of Exhibit “F” certain information has been redacted without a corresponding reference to a section of the Act justifying such redaction. The same information has also been redacted from the confidential copy of this page, so it is impossible to determine whether this information should or should not have been withheld. Nevertheless, since the redacted information is contained in an e‑mail from the Applicant to Ms. Rousseau Saunders dated January 16, 2012, the Applicant is presumably aware of what information is contained in the redacted portion of this e-mail released to him.

(1)               Subsection 12(1)

[40]           The Applicant asserts that the OPC improperly utilized subsection 12(1) of the Act to safeguard litigation-privileged documents. For its part, the OPC argues that a person’s name in and of itself is not personal information; it only becomes such when linked to other information relating to the individual, or if disclosure of the name itself would reveal information about the individual. According to the OPC, the Applicant does not have a right to access all records that contain his name, but only those records that have information about him in addition to his name. Subsection 12(1), the OPC says, is not so much an exemption from disclosure as it is, instead, a parameter for access to information; thus, information withheld by virtue of this provision is information that was not the Applicant’s personal information.

[41]           The Applicant points to an e-mail dated March 15, 2011, at page 10839 of the disclosed information, suggesting that the redacted portions likely include views or opinions of another person about him, and that this constitutes his personal information. I disagree for two reasons.

[42]           First, the redacted portions of this particular e-mail do not constitute personal information of or about the Applicant because his name appears in this document only as a reference to a case involving him (Oleynik v Newfoundland and Labrador (Information and Privacy Commissioner), 2011 NLTD(G) 34) which the OPC relied upon in a court proceeding unrelated to the Applicant; the attachments to this e-mail do not constitute personal information of the Applicant because they comprise correspondence between counsel and copies of case law filed in that other proceeding.

[43]           Second, just because a document may contain the Applicant’s name does not necessarily or automatically mean that it constitutes “personal information” within the broad definition of personal information contained in section 3 of the Act; there must be something beyond a person’s mere name that makes the information individualized or personal to that person “where it appears with other personal information relating to the individual [such as his or her age or address] or where the disclosure of the name itself would reveal information about the individual”.

[44]           It is true, as the Applicant points out, that many documents were withheld in whole or in part on the basis of subsection 12(1) in conjunction with section 27 (solicitor-client privilege). However, after carefully reviewing all of the instances where subsection 12(1) was used alone or in conjunction with another provision of the Act to refuse disclosure of information, I cannot find or conclude that the OPC improperly utilized subsection 12(1) of the Act to safeguard privileged documents. I also cannot find or conclude that the OPC incorrectly or unreasonably relied upon this subsection to withhold personal information of the Applicant. In most instances, the personal information of the Applicant was co-mingled with that of others in internal OPC reports concerning other litigation in which the OPC was involved and, thus, it was correctly and reasonably exempted from disclosure since it concerned the personal information of others and not that of the Applicant. In other instances, the redacted portions of documents contained information pertaining to personal information of those involved with the Applicant’s requests for information concerning such matters as personal vacation dates and who would deal with the Applicant’s requests while someone was on vacation. In short, I find that in this case the OPC correctly and reasonably refused to disclose certain information to the Applicant by virtue of subsection 12(1) of the Act.

(2)               Section 22.1

[45]           In addition to subsection 12(1) of the Act, the OPC also relied upon section 22.1 to exempt certain information from disclosure to the Applicant. Section 22.1 of the Act provides as follows:

[46]           In my view, subsections 22.1(1) and 22.1(2) manifest a legislative intent that personal information obtained or created by the OPC during an investigation must be excluded from disclosure, but only up to a certain point in time. After an investigation and all related proceedings, if any, are finally concluded, the personal information created by the OPC, rather than that obtained by it during an investigation, may be disclosed. Information properly falling within subsection 22.1(1) must be information that was obtained or created by the OPC in the course of an investigation. However, once all proceedings related to an investigation have been completed, this subsection cannot be invoked to refuse disclosure of personal information created by the OPC during an investigation; that information can be accessed by virtue of subsection 22.1(2).

[47]            The Applicant contends that several exemptions under section 22.1 of the Act were inappropriate. In particular, he points to pages 004444 and 004638 of Exhibit “F” where information was redacted by the OPC in reliance upon subsection 22.1(1). He also notes other pages of Exhibit “F”, notably 004728, 004762, 004763 and 005023, as being instances where the OPC improperly utilized this subsection to withhold information. I have reviewed these pages identified by the Applicant as well as those on the confidential CD where the OPC relied upon subsection 22.1(1) to deny disclosure of some information to the Applicant. By and large, the information withheld on the basis of this subsection pertains to information obtained by the OPC from the SSHRC during the course of its investigations of the Applicant’s complaints about the SSHRC; it was not personal information about the Applicant created by the OPC. For example, pages 005024 to 005095 of Exhibit “F” were correctly and reasonably withheld from the Applicant because these pages contained a letter with various enclosures from the SSHRC to the Applicant dated April 19, 2011, in which he was informed that his application for an award was not approved. Similarly, pages 004798 to 004858 and pages 004869 to 004928 of Exhibit “F” were also correctly and reasonably withheld because they were documents obtained by the OPC during its investigation of the Applicant’s complaints about the SSHRC; these documents included copies of internal SSHRC e-mails, correspondence between the Applicant and Industry Canada which was copied to the SSHRC, as well as copies of letters and e-mails to and from the SSHRC and the Applicant. Likewise, page 005486 was correctly and reasonably withheld under this subsection because it was a letter from the SSHRC to the Applicant dated May 12, 2012.

[48]           However, certain information was incorrectly and unreasonably withheld from the Applicant by the OPC on the basis of subsection 22.1(2). The redacted information at pages 004418 and 004419 of Exhibit “F” as well as that on page 004444 should not have been withheld because it was created by the OPC (although it did refer to a document being prepared by the SSHRC). Likewise, the redacted information at pages 004467 to 004471 should not have been withheld merely because it referred to a document created by the SSHRC. The redacted information at pages 004458 to 004460 and at pages 004728, 004730, 004735,004737, 004739, 004748, 004762, 004763, 004790, and 004791 of Exhibit “F” was incorrectly withheld because it was the OPC’s commentary on information released by the SSHRC to the Applicant and, thus, something created by the OPC. The e-mail from Michael Billinger at pages 005564 and 005565 and pages 005566 to 005570 should not have been withheld under subsection 22.1(1) because these were documents created by the OPC during its investigation in response to the Applicant’s second complaint about the SSHRC and that investigation and the proceedings relating to it, resulting in this Court’s decision in Oleinik 2013, had been completed by the time of the Applicant’s Third Request for information.

(3)               Section 26

[49]           In addition to subsection 12(1) and section 22.1 of the Act, the OPC also relied upon section 26 to withhold certain information from the Applicant. Section 26 of the Act states:

[50]           As noted by the Court in Mislan v. Canada (Minister of Revenue) (1998), 148 FTR 107, [1998] FCJ No 704 (QL):

[13]      Under section 26 the right of the person making the request under subsection 12(1) to access his or her own personal information is subject to the requirement on, or the exercise of discretion by, the head of the government institution not to disclose information about another person. Specifically, when the information in question is about both the person making the request and another person the discretion to refuse disclosure by the head of the government institution is paramount to the right of the person making the request for his own personal information.

[51]           The Applicant argues that in some instances where the OPC invoked an exemption under section 26 it exempted information that is not personal. He points to the fact that the e-mail address for a paralegal on contract with the OPC (Caroline Etter) was redacted (for example, at pages 000060 to 000062), while the e-mail address for a lawyer retained by the OPC (Dougald Brown) was not redacted (for example, at pages 010482 or 016565).

[52]           The Applicant is correct that the OPC treated the e-mail addresses of these two persons engaged by it differently. In this regard, both e-mail addresses appear to be a business or office e-mail address. The Federal Court of Appeal has noted that, although a home e-mail address is clearly protected personal information, the status of an office e-mail address is uncertain (see: Bernard v Canada (Attorney General), 2010 FCA 40 at para 38, 398 NR 325 [Bernard]). In my view, an office or business e-mail address is akin to the office phone number of the government employee in Bernard; an office phone number is something which is explicitly excluded from the definition of personal information in section 3 of the Act. On a correctness standard, therefore, I find that the OPC improperly redacted the e-mail address at pages 000060 to 000062 of Exhibit “F”.

[53]           I also find that the OPC improperly and unreasonably redacted the paralegal’s office phone number and e-mail address at pages 000179 and 000345, and her office e-mail address at pages 000074, 000289, 000312, 001588, 001637, 001653, 001869, 010477 to 010480, 012035, 012119, 012124, 012128, 012210, 012641, 012642, 012646, 012647, 012916, 012942, 014131, 015037, 015079, and 015082. Even if I am incorrect in making these findings, the fact remains that the OPC afforded differential treatment to these two office e-mail addresses, and that is unreasonable because it constituted a contradictory application of the exemption under section 26 of the Act.

[54]           As to the other information redacted from page 000062, the Applicant contends that this does not constitute personal information about another individual. I disagree because the redacted remark made by the paralegal is not about the Applicant or her view or opinion of him; hence, it does not constitute personal information about the Applicant as defined in section 3 of the Act and it was correctly and reasonably withheld from the Applicant under section 26 of the Act.

[55]           With respect to other instances where the OPC relied only upon section 26 of the Act to withhold information from the Applicant, after a detailed review in this regard I cannot find or conclude that the OPC incorrectly or unreasonably refused to disclose certain personal information about persons other than the Applicant. Thus, for example, the OPC correctly and reasonably redacted the home e-mail address and home phone number of someone other than the Applicant at page 011442 and the home e-mail address for an OPC employee at page 011365. In other instances, section 26 was correctly and reasonably applied by the OPC to exempt the personal information of individuals other than the Applicant pertaining to their personal contact information such as a home e-mail address or cell phone or their whereabouts while on vacation. In short, save for those instances noted above where section 26 of the Act was incorrectly or unreasonably applied, the OPC’s refusal to disclose some information to the Applicant on the basis of section 26 is otherwise justifiable and falls within a range of possible, acceptable outcomes defensible in respect of the facts and law. The affidavit of Ms. Rousseau Saunders shows that, in exercising her discretion to withhold information about an individual other than the Applicant, she weighed the competing interests between providing the Applicant with the information and protecting the privacy interests of others and also considered whether withholding such information would obstruct the Applicant’s right to access his personal information.

(4)               Section 27

[56]           The fourth provision of the Act upon which the OPC relied to withhold certain information from the Applicant was section 27; this section states:

[57]           Before reviewing the OPC’s reliance upon section 27 in this case, it is helpful to look at what is encompassed by the phrase “solicitor-client privilege.” In Pritchard v Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 SCR 809, the Supreme Court defined solicitor-client privilege as follows:

14        Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.  Clients must feel free and protected to be frank and candid with their lawyers with respect to their affairs so that the legal system, as we have recognized it, may properly function:  see Smith v. Jones, [1999] 1 S.C.R. 455, at para. 46.

15        Dickson J. outlined the required criteria to establish solicitor-client privilege in Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837, as: “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties”.  Though at one time restricted to communications exchanged in the course of litigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not:  see Solosky, at p. 834.

16        Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of the professional relationship.  The privilege, once established, is considerably broad and all-encompassing.  In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established”.  The scope of the privilege does not extend to communications: (1)  where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct:  see Solosky, supra, at p. 835.

[58]           The Supreme Court further noted in Blood Tribe Department of Health v Canada (Privacy Commissioner), 2008 SCC 44, [2008] 2 SCR 574, that it matters not whether litigation may or may not have been in contemplation when a client seeks legal advice, and that while solicitor-client privilege may have originated as a rule of evidence: “it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity” (at para 10).

[59]           Furthermore, it must be noted that all communications between a solicitor and a client directly related to the seeking, formulating or giving of legal advice are privileged, along with “communications within the continuum in which the solicitor tenders advice” (see: Canada (Information Commissioner) v Canada (Public Safety and Emergency Preparedness), 2013 FCA 104 at para 26, 360 DLR (4th) 176). As stated by the Federal Court of Appeal in Samson Indian Nation and Band v. Canada, [1995] 2 FC 762, 125 DLR (4th) 294:

8          Today, it is generally recognized that there are two distinct branches of solicitor and client privilege: the litigation privilege and the legal advice privilege. The litigation privilege protects from disclosure all communications between a solicitor and client, or third parties, which are made in the course of preparation for any existing or contemplated litigation. The legal advice privilege protects all communications, written or oral, between a solicitor and a client that are directly related to the seeking, formulating or giving of legal advice; it is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context.

[60]           Moreover, it warrants note that information can be privileged even if the communications are made to employees of a lawyer and even if they deal with matters of an administrative nature related to the privileged communications. As noted by the Supreme Court in Descôteaux v Mierzwinski, [1982] 1 SCR 860 at 892-893, 141 DLR (3d) 590):

In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

[61]           The Applicant asserts that litigation privilege should be differentiated from solicitor-client privilege, and that the OPC improperly refused to disclose records containing legal advice no longer subject to litigation privilege since the litigation resulting in Oleinik 2011 and Oleinik 2013 had been concluded by the time of the OPC’s response to his Third Request. In this regard, he refers to the Supreme Court’s decision in Blank v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319 [Blank], where a portion of the headnote for the majority’s decision states:

The purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation.  The common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege.  Unlike the solicitor client privilege, it is neither absolute in scope nor permanent in duration.  The privilege may retain its purpose and its effect where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.  This enlarged definition of litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action or juridical source.

[62]           The Applicant’s arguments in this regard are misguided for several reasons. First, some documents may fall under both litigation privilege and solicitor-client privilege; for example, a draft factum and communications pertaining to it among lawyers for a client are subject to both privileges until such time as the factum is publically filed with the court, whereupon the solicitor-client privilege attaching to the factum as filed is lost yet the draft factum and all communications about it remain subject to solicitor-client privilege. Second, section 27 of the Act contemplates and explicitly refers to the withholding of documents that are subject to solicitor-client privilege and not merely litigation privilege, the purpose of which differs substantially from that of solicitor-client privilege since litigation privilege is concerned with ensuring the efficacy of the adversarial process and not promoting the solicitor-client relationship. Third, solicitor-client privilege extends to any legal advice, regardless of whether it relates to litigation or not, and also to any legal advice in respect of litigation even after the litigation has ended. Lastly, solicitor-client privilege is generally absolute in scope and permanent in duration unless waived by a client; whereas litigation privilege is neither absolute in scope nor permanent in duration and does not necessarily terminate where, as is the case in this case, the “litigants or related parties remain locked in what is essentially the same legal combat” and “related litigation remains pending or may reasonably be apprehended” (see: Blank, at paras 34 and 38).

[63]           I have reviewed in detail the OPC’s use of section 27 of the Act to withhold certain information from the Applicant in response to his Third Request for information. At the hearing of this matter, counsel for the OPC provided the Court with a list of individuals or groups relevant to the OPC’s claims of solicitor-client privilege. I am satisfied that none of these individuals or groups constituted third parties who were privy to information in respect of which it might be suggested that the OPC waived its privilege over documents or communications it withheld from disclosure on the basis of solicitor-client privilege. I have also reviewed Ms. Rousseau Saunders’ affidavit in which she not only provides her understanding of the notions of solicitor-client privilege under section 27 of the Act and litigation privilege, but also confirms that in exercising her discretion under this section she did so based on this understanding as well as recommendations provided by internal legal counsel for the OPC.

[64]           The following chart summarizes the instances where the OPC relied upon section 27 of the Act, in whole or in part, to exempt certain information from the Applicant and the Court’s comments with respect to whether such documentation was correctly within the ambit of solicitor-client privilege:

[65]           In summary, although the OPC correctly withheld many documents from the Applicant on the basis of solicitor-client privilege, it erred in three instances:

1.                  The redacted information on page 012113 was incorrectly exempted from disclosure under section 27 of the Act because it pertains to background information about the Applicant and is not legal advice or strategy provided by counsel for the OPC.

2.                  The publicly reported case at pages 012495-012500 and also at pages 012561-012565 does not fall within the ambit of the OPC’s solicitor-client privilege, although the discussion among its counsel and legal advice concerning such case does.

3.                  The e-mail from the Federal Court dated April 29, 2011, at pages 013533-013534, is not within the ambit of solicitor-client privilege because it does not constitute legal advice or strategy within a solicitor-client relationship.

[66]           In these three instances the information and documents were incorrectly and, therefore, unreasonably withheld from the Applicant by the OPC on the basis of solicitor-client privilege. In all of the other instances where the OPC relied upon section 27 of the Act, as summarized in the chart above, it did so correctly.

[67]           The OPC’s determination to withhold certain information and documentation from the Applicant on the basis of section 27 of the Act was also reasonable. In my view, given the permissive and discretionary nature of the word “may” in section 27, deference should be afforded to the OPC’s reliance upon this section in those instances where it correctly identified documents as being subject to solicitor-client privilege. In this context, the scope of reasonable outcomes is relatively broad because it is the OPC who should decide whether to waive its solicitor-client privilege and release otherwise privileged documentation to the Applicant.

IV.             Conclusion

[68]           In conclusion, the OPC reasonably and correctly withheld certain information and documentation from the Applicant on the basis of subsection 12(1) of the Act. However, as noted above, certain documentation was incorrectly and unreasonably withheld from the Applicant by the OPC on the basis of subsection 22.1(2) because it was created by the OPC during its investigation in response to the Applicant’s second complaint about the SSHRC and that investigation and all proceedings relating to it had been completed by the time of the Applicant’s Third Request for information.

[69]           In addition, the OPC incorrectly and unreasonably withheld from the Applicant on the basis of section 26 of the Act information about the office phone number and office e-mail address of a paralegal working for the OPC in response to the Applicant’s requests for information. It also withheld certain information from the Applicant that was not properly within the ambit of solicitor-client privilege as contemplated by section 27 of the Act.

[70]           Although the Applicant has been somewhat successful in this application, such success is divided inasmuch as the documentation and information incorrectly and unreasonably withheld from disclosure was not voluminous and, for the most part, the OPC correctly and reasonably applied subsection 12(1) and sections 22.1, 26 and 27 of the Act. At the hearing of this matter, counsel for the OPC indicated that, despite its request for costs in its memorandum of fact and law, the OPC was not seeking costs in view of the complexity of the issues raised by the application. Having regard to the circumstances of this matter, I decline to make any award as to costs pursuant to Rule 400 of the Federal Courts Rules, SOR/98-106, as am.

 

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.                  the Applicant’s application under section 41 of the Privacy Act, RSC 1985, c P 21, is allowed, in part;

2.                  the Respondent, Office of the Privacy Commissioner of Canada, shall disclose and provide to the Applicant within twenty (20) days of the date of this judgment the following pages of Exhibit “F” to the affidavit of Andrea Rousseau Saunders dated July 11, 2014:

a.                   non-redacted copies of pages 004418, 004419, 004444, 004458 to 004460, 004467 to 004471, 004728, 004730, 004735, 004737, 004739, 004748, 004762, 004763, 004790, 004791, the e-mail from Michael Billinger at pages 005564 and 005565, and pages 005566 to 005570;

b.                  non-redacted copies of pages 000179 and 000345 containing Caroline Etter’s office phone number and e-mail address, as well as non-redacted copies of her office e-mail address at pages 000074, 000289, 000312, 001588, 001637, 001653, 001869, 010477 to 010480, 012035, 012119, 012124, 012128, 012210, 012641, 012642, 012646, 012647, 012916, 012942, 014131, 015037, 015079, and 015082; and

c.                   a non-redacted copy of page 012113, a copy of the e-mail from the Federal Court dated April 29, 2011, at pages 013533-013534, and copies of pages 012495-012500 and pages 012561-012565; and

3.                  there shall be no award of costs.

"Keith M. Boswell"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-924-14
STYLE OF CAUSE:	ANTON OLEYNIK v THE OFFICE OF THE PRIVACY COMMISSIONER OF CANADA
PLACE OF HEARING:	St. John's, Newfoundland and Labrador
DATE OF HEARING:	April 14, 2016
JUDGMENT AND REASONS:	BOSWELL J.
DATED:	october 19, 2016

APPEARANCES:

Anton Oleynik	For The Applicant (ON HIS OWN BEHALF)
Kate Wilson Jennifer Seligny	For The Respondent

SOLICITORS OF RECORD:

The Office of the Privacy Commissioner of Canada Gatineau, Quebec

For The Respondent