File No.:  30417

IpsofactoJ.com: International Cases [2006] Part 14 Case 8 [SCC]


SUPREME COURT OF CANADA

Coram

Attorney General of Canada

- vs -

H.J. Heinz Co of Canada Ltd

McLACHLIN CJ

BASTARACHE J

BINNIE J

LEBEL J

DESCHAMPS J

FISH J

ABELLA J

21 APRIL 2006


Judgment

Deschamps J

(with whom Binnie, Fish & Abella JJ joined)

1. Introduction

  1. This case concerns the delicate balance between privacy rights and the right of access to information. The respondent, H.J. Heinz Company of Canada Ltd. (“Heinz”), contests the disclosure of certain documents on the ground that they contain personal information. Heinz, as a “third party” within the meaning of the Access to Information Act, R.S.C. 1985, c. A‑1 (“Access Act”), seeks to raise the personal information exemption set out in s. 19 by means of an application for review under s. 44 of that Act. The appellant, the Attorney General of Canada, and the intervener, the Information Commissioner of Canada, however, argue that the documents must be disclosed. They assert that the review mechanism provided for in s. 44 is limited to the confidential business information which was the basis for Heinz’s third party status in the first place. In their submission, a person wishing to complain about the disclosure of personal information should instead seek a remedy under the Privacy Act, R.S.C. 1985, c. P‑21.

  2. The Attorney General’s narrow interpretation of the legislative scheme is, in my view, too restrictive of the rights involved. This Court has stated on numerous occasions that the Privacy Actand the Access Act must be read together as a “seamless code”: Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8, at para. 22 (“RCMP”). The right of access to government information, while an important principle of our democratic system, cannot be read in isolation from an individual’s right to privacy. By including a mandatory privacy exemption in the Access Act itself, Parliament ensured that both statutes recognize that the protection of the privacy of individuals is paramount over the right of access, except as prescribed by law. Where a third party becomes aware that a government institution intends to disclose a record containing personal information, nothing in the plain language of the Access Act prevents the third party from raising this concern by applying for judicial review. What matters is not how the reviewing court became aware of the government’s wrongful decision to disclose personal information, but the court’s ability to give meaning to the right to privacy. A reviewing court is in a position to prevent harm from being committed and the statutory scheme  imposes no legal barrier to prevent the court from intervening. An interpretation of s. 44 that forces an individual to wait until the personal information is disclosed and the damage is done, or that imposes an onerous burden on the person seeking to avert the harm, fails to give actual content to the right to privacy and also fails to satisfy the clear legislative goals underlying the Access Act and the Privacy Act.

    2. Facts

  3. In June 2000, the Canadian Food Inspection Agency (“CFIA”) received a request under the Access Act for access to certain records pertaining to Heinz. The CFIA determined that some of the records might contain confidential business or scientific information, as described in s. 20(1) of the Access Act, and requested, pursuant to ss. 27 and 28 of the Act, that Heinz make representations as to why the documents should not be disclosed. Heinz submitted its representations in early September. After reviewing them, the CFIA concluded that the records should be disclosed, subject to certain redactions, and notified Heinz of its decision. On September 27, 2000, Heinz commenced a review proceeding pursuant to s. 44 of the Access Act, arguing that certain records should not be disclosed because they fell under two exemptions  established by the Act: that of s. 20(1), which prohibits the disclosure of confidential business information, and that of s. 19(1), which prohibits the disclosure of personal information relating to individuals.

  4. In the review proceeding, the Attorney General argued that it was inappropriate for Heinz to raise any exemption other than s. 20(1) because it was the presence of business information which was the basis for Heinz’s right of review in the first place. The application judge disagreed, concluding that Heinz could raise the personal information exemption under s. 19, and ordered the severance of certain records containing personal information relating to individuals. The Attorney General appealed that decision. The Federal Court of Appeal dismissed the appeal.

    3. Judicial History and Case Law

  5. The judgments of both the Federal Court of Appeal and the Federal Court–  Trial Division are rooted in the jurisprudence of the Federal Court of Canada. I will therefore review the judgments in this case in conjunction with the case law of the Federal Court of Canada.

    3.1  Federal Court–Trial Division, [2003] 4 F.C. 3, 2003 FCT 250

  6. In the Trial Division, Layden-Stevenson J. considered whether, in a s. 44 application for review, Heinz could raise the prohibition against the disclosure of personal information established by s. 19 of the Access Act. She reviewed two prior Federal Court of Canada decisions which appeared to come to contradictory conclusions regarding the scope of s. 44: Saint John Shipbuilding Ltd. v Canada (Minister of Supply and Services) (1988), 24 F.T.R. 32, aff’d (1990), 107 N.R. 89 (C.A.), and Siemens Canada Ltd. v Canada (Minister of Public Works and Government Services) (2001), 213 F.T.R. 125, 2001 FCT 1202, aff’d (2002), 21 C.P.R. (4th) 575, 2002 FCA 414. 

  7. Saint John Shipbuilding, concerned an application under s. 44 for a review of a decision by the Department of Supply and Services to release certain extracts from and summaries of a contract with the Government of Canada. The applicant was primarily concerned with the proper application of s. 20(1)(c) and (d) of the Access Act but urged the court to consider s. 15 as well. Section 15 provides that the head of an institution “may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to .... the defence of Canada”. Because the material at issue consisted of defence‑related contracts, the applicant raised the fact that s. 15 of the Access Act might also exempt the records from disclosure, and urged the court to be particularly reticent to allow the records to be released. However, both the Trial Division and the Federal Court of Appeal rejected the applicant’s arguments respecting s. 15. Martin J., writing for the Trial Division, held that his powers of review in a s. 44 proceeding were limited to the considerations set out in s. 20(1) of the Act and that the national security issue was irrelevant to the proceeding. Similarly, Hugessen J.A. at the Federal Court of Appeal stated that “the appellant’s interest, as third party intervenor in a request for information, is limited to those matters set out in subsection 20(1)” (para. 9).

  8. In Siemens, by contrast, the Federal Court of Appeal held that it was unable to interpret s. 44 in a way that would limit the jurisdiction of the court and prevent s. 24 from being involved. By implication, therefore, the Court of Appeal found that the applicant was not limited to the exemption set out in s. 20(1) of the Access Act. The applicant objected to the disclosure of information on the ground that s. 30 of the Defence Production Act, which is incorporated into the Access Act by virtue of s. 24, precluded release of the documents. At trial, McKeown J. accepted that s. 30 of the Defence Production Act applied, thereby implicitly accepting that he had jurisdiction to apply s. 24 in the context of a s. 44 application. Crown counsel apparently argued against this approach on appeal, asserting that s. 44 limits the jurisdiction of the court such that only s. 20(1) can be raised in a s. 44 review. In delivering a laconic decision from the bench, however, the Federal Court of Appeal dismissed the Crown’s arguments, stating simply: “We are unable to interpret s. 44 in this way”.

  9. At trial in the instant case, Layden-Stevenson J. reconciled Saint John Shipbuilding and Siemens by pointing out that the Access Act contains both mandatory and discretionary exemptions and that the procedure for refusing disclosure differs under the two types of exemptions. A mandatory exemption requires only a decision as to whether the material falls within the exemption; a discretionary exemption, by contrast, requires the government institution to determine,

    • first, whether the information falls within the exemption and,

    • second, whether the material should be disclosed regardless.

    Layden-Stevenson J. found that the holding in Saint John Shipbuilding related specifically to the application of a discretionary exemption and did not prohibit raising mandatory exemptions in an application for review under s. 44. She added that in Siemens, the Federal Court of Canada had, in addressing the application of a mandatory exemption (s. 24), found that the exemption in question could be raised in a s. 44 proceeding. She therefore concluded, on the basis that the s. 19 prohibition against disclosing personal information is a mandatory exemption, that Heinz could raise s. 19 in a s. 44 proceeding.

  10. Finally, Layden-Stevenson J. relied on the principles of statutory interpretation stated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, to hold that Heinz was entitled to raise the personal information exemption because there is no restriction on the “representations” that can be made under s. 28 of the Access Act. She agreed that some of the requested information met the criteria of s. 19 and severed specific passages as a result. She ordered that the remaining records be disclosed.

    3.2  Federal Court of Appeal, [2005] 1 F.C.R. 281, 2004 FCA 171

  11. On appeal, Nadon J.A. held that Siemens had settled the debate regarding the scope of s. 44 and that it was impossible to distinguish Siemens from the instant case on any basis. The Federal Court of Appeal had clearly decided in Siemens that a third party could, on a s. 44 application, seek to prevent the disclosure of records on the basis of exemptions other than confidential business information. Nadon J.A. refused to overturn Siemens, because it could not be said that the decision in that case was “manifestly wrong”. He accordingly dismissed the appeal.

    3.3 Applicability of the Case Law

  12. Neither Saint John Shipbuilding nor Siemens provides this Court with specific reasoning on the proper scope of a s. 44 application. More importantly, the exemption provision at issue here (s. 19) differs markedly in nature, purpose and application from the exemption provisions raised in the prior cases. Parliament’s harmonized design of access to information and privacy legislation clearly indicates, as this Court’s jurisprudence has confirmed, that the Access Act and the Privacy Act must be read together, with special emphasis given to the protection of personal information. 

  13. The applicability of the personal information exemption in a s. 44 proceeding was also at issue in SNC Lavalin Inc. v Canada (Minister for International Cooperation), [2003] 4 F.C. 900, 2003 FCT 681 (“Lavalin”), which was heard by the Federal Court–Trial Division soon after the case at bar. In that case, SNC Lavalin, a large engineering construction company, contested a decision of the Canadian International Development Agency (“CIDA”) to disclose documents to an access requester. Like Heinz, SNC Lavalin claimed that a number of the requested documents contained personal information relating to individuals and should not be released pursuant to s. 19 of the Access Act. The trial judge rejected Lavalin’s arguments, suggesting that in order to confer on a third party a right to make representations unrelated to confidential business information (s. 20(1)), the court would have to read words into s. 28(1), the provision which establishes a third party’s right to make representations. Reading in would violate the established principle that “the court should not accept an interpretation which requires the insertion of extra wording where there is another acceptable interpretation which does not require any additional wording”: Friesen v Canada, [1995] 3 S.C.R. 103, at para. 27, as cited in Markevich v Canada, [2003] 1 S.C.R. 94, 2003 SCC 9, at para. 15.

  14. For the reasons discussed below, however, I am unable to agree with the trial judge’s conclusions in Lavalin. The applicability of s. 19 in the context of a s. 44 review is now squarely before the Court and must be addressed keeping in mind the principles of statutory interpretation and, in particular, the broader purpose and context of the federal access to information and privacy legislation.

  15. Before proceeding to the analysis, it will thus be helpful to review the legislative framework.

    4. Legislative Provisions

  16. The relevant legislative provisions are set out in the Appendix. However, the process under the Access Act for reviewing decisions to disclose information involves the interaction of multiple provisions, and it is worth examining the key provisions in greater detail.

  17. The Access Act establishes a broad right of access to records under the control of government institutions (s. 4). At the same time, the Act recognizes that rights of access are not absolute by outlining a number of exemptions to disclosure (ss. 13-26). Most important for the purposes of this case are the exemptions relating to personal information (s. 19) and to confidential business information (s. 20(1)). They provide as follows:

    19.

    (1)

    Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

    (2)

    The head of a government institution may disclose any record requested under this Act that contains personal information if

    (a)

    the individual to whom it relates consents to the disclosure;

    (b)

    the information is publicly available; or

    (c)

    the disclosure is in accordance with section 8 of the Privacy Act.

    20.

    (1)

    Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

    (a)

    trade secrets of a third party;

    (b)

    financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

    (c)

    information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

    (d)

    information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

  18. Section 19(1) thus creates a mandatory prohibition against the disclosure of “personal information”, which is defined in s. 3 of the Privacy Act as “information about an identifiable individual that is recorded in any form”. Section 20(1) prohibits the disclosure of records containing confidential business information supplied by a “third party”. A “third party” is defined as “any person, group of persons or organization other than the person that made the request or a government institution” (s. 3 of the Access Act). The parties are not debating at this stage whether certain information contained in the records meets the criteria of s. 19; rather, the issue in the case at bar is whether s. 19 may be raised in a s. 44 review proceeding.

  19. Where a government institution intends to disclose confidential business information, the Access Act provides that the institution must give the third party notice (s. 27(1)) and that the third party has the right to make representations to the institution as to why the record should not be disclosed (s. 28(1)(a)). It is important to note that the third party also has the right to be given notice if the institution decides to go ahead and disclose the record (s. 28(1)(b)). (This right to notice is also triggered under s. 29(1) of the Access Act by a recommendation for disclosure by the Information Commissioner, although only s. 28(1) is relevant to the facts of the instant case.)  If the third party wishes to contest the government institution’s decision to disclose the record, he or she may apply to the Federal Court for a review of the matter pursuant to s. 44(1), which reads as follows:

    44.

    (1)

    Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.

    Third parties who have received notice regarding the disclosure of confidential business information are thus accorded a special right of review. Moreover, if a s. 44 review is initiated, the person who made the original request for access must be notified and given the opportunity to appear as a party (ss. 44(2) and 44(3)).

  20. These provisions must now be put in context.

    5. Analysis

    5.1  Statutory Interpretation

  21. As with most questions of statutory interpretation, the dispute can be resolved through what is now commonly referred to as the modern approach: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes, at para. 21).

    5.1.1 Legislative History

  22. Originally considered together by Parliament and enacted simultaneously in 1982, the Access to Information Act and the Privacy Act are parallel statutes which in combination provide a cohesive framework for balancing the right of access to information and privacy rights: Dagg v Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 45. As is clear from the parliamentary debates at the time the Acts were introduced, Parliament intended the new, comprehensive access to information and privacy legislation to increase government accountability in two ways:

    • first, by ensuring that access to information under government control is a public right rather than a matter of government discretion and,

    • second, by strengthening the rights of individuals to know “how personal information will be used .... that the information used for decision-making purposes is accurate .... and that information collected by government institutions is relevant to their legitimate programs and operations:

    House of Commons Debates, vol. VI, 1st Sess., 32nd Parl., January 29, 1981, at pp. 6689-91, Second Reading of Bill C-43 by the Hon. Mr. Francis Fox, then Minister of Communications.

  23. Significantly, while protecting personal information is the primary purpose of the Privacy Act, the Access Act also recognizes the importance of protecting privacy rights, and in so doing necessarily qualifies the right of access to information under government control articulated in s. 4(1) of the Act: RCMP, at para. 22. Indeed, when the Access Act and the Privacy Act were introduced in Parliament, the then Minister of Communications emphasized that, while the Bill dealt with both access to information and privacy, it ensured “a consistent treatment of personal information and the protection of individual privacy” (emphasis added (House of Commons Debates, at p. 6690)). More specifically, the legislature ensured the protection of personal information under the Access Actthrough s. 19, which mandatorily prohibits government institutions from disclosing personal information about an individual to an access requester, subject to certain exceptions. 

  24. As demonstrated by the background to the enactment of the two statutes, therefore, Parliament has created a legislative scheme which, while intended to ensure access to information on the one hand and protect individual privacy on the other, consistently protects personal information. As a result of these tightly interlaced legislative histories, s. 44 cannot be interpreted simply with regard to the purpose of the Access Act, but must also be understood with reference to the purpose of the Privacy Act. I will therefore now turn to an analysis of the differing, but connected, purposes of the two statutes.

    5.1.2 Purpose

  25. As I have suggested, the closely related legislative histories of the Access Act and the Privacy Act require a reviewing court to consider the purposes of both statutes rather than viewing each one in isolation from the other. In Dagg, La Forest J. (dissenting but not on this point) came to the same conclusion. Addressing the tension between “two competing legislative policies” (para. 45), he suggested that while some friction between the right of access to information and privacy rights is inevitable, the two statutes “set out a coherent and principled mechanism for determining which value should be paramount in a given case” (para. 45). Like two sides of the same coin, the Access Act and the Privacy Act ensure that neither the right of access to information nor the right to individual privacy is given absolute pre-eminence.

  26. The intimate connection between the right of access to information and privacy rights does not mean, however, that equal value should be accorded to all rights in all circumstances. The legislative scheme established by the Access Act and the Privacy Act clearly indicates that in a situation involving personal information about an individual, the right to privacy is paramount over the right of access to information, except as prescribed by the legislation. Both Acts contain statutory prohibitions against the disclosure of personal information, most significantly in s. 8 of the Privacy Act and s. 19 of the Access Act. Thus, while the right to privacy is the driving force behind the Privacy Act, it is also recognized and enforced by the Access Act.

  27. As I have mentioned, s. 44 provides third parties with a right to apply to the Federal Court for review of decisions to disclose records. This right of review helps to promote one of the underlying purposes of the Access Act: to ensure that decisions on disclosure are “reviewed independently of government” (s. 2(1)). Indeed, the review mechanisms created by the two Acts introduce an important level of governmental accountability. As the Minister of Communications stated upon introducing the Privacy Act and the Access Act in Parliament, the Acts allow the courts to examine whether a government institution had reasonable grounds for its decision to disclose a particular record, placing the burden squarely on the shoulders of government: House of Commons Debates, at p. 6691. Section 44 thus establishes a key mechanism by which a government institution’s erroneous decision to disclose information may be reviewed and rectified pursuant to the principles of theAccess Act.

  28. Given the interlocking nature of the two Acts, the right of review provided for in s. 44 must be interpreted with regard not only to the purpose and structure of the Access Act, but also to the legislative purposes of the Privacy Act. As indicated, the purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves that is held by a government institution (s. 2). The importance of this legislation is such that the Privacy Act has been characterized by this Court as “quasi-constitutional” because of the role privacy plays in the preservation of a free and democratic society: Lavigne v Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53, at para. 24; Dagg, at paras. 65-66. 

  29. The central protection relating to the disclosure of personal information is provided for in s. 8 of the Privacy Act, which establishes in strict terms that “[p]ersonal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section”. The Privacy Act also provides a number of exceptions to the prohibition against disclosing personal information, including a “public interest” limitation on privacy rights (see s. 8(2)(a) through (m)). However, even where a government institution discloses personal information by exercising its public interest discretion, it must notify the Privacy Commissioner prior to disclosure where reasonably practicable, and the Privacy Commissioner may notify the individual (s. 8(5)). Thus, it is clear from the legislative scheme established by the Access Act and the Privacy Act that in a situation involving personal information about an individual, the right to privacy is paramount over the right of access to information.

  30. It is worth noting, however, that despite the emphasis on the protection of privacy, the legislative scheme ensures that the rights of the access requester are also taken into account in the context of an application for review.  Where a s. 44 review has been initiated, the person who made the original request for access must be notified and given the opportunity to make representations (ss. 44(2) and 44(3)). In this way, the statute provides a further mechanism for balancing the rights of access requesters and of those who object to disclosure.

  31. It is apparent from the scheme and legislative histories of the Access Act and the Privacy Act that the combined purpose of the two statutes is to strike a careful balance between privacy rights and the right of access to information. However, within this balanced scheme, the Acts afford greater protection to personal information. By imposing stringent restrictions on the disclosure of personal information, Parliament clearly intended that no violation of this aspect of the right to privacy should occur. For this reason, since the legislative scheme offers a right of review pursuant to s. 44, courts should not resort to artifices to prevent efficient protection of personal information.

    5.1.3 Legislative Context of Section 44

  32. The histories and purposes of the Privacy Act and the Access Act illustrate the intimate relationship between the two statutes. This relationship is also reflected in the comprehensive legislative scheme created by the two statutes. The legislative context of s. 44 thus provides further guidance regarding the proper scope of the review power.

  33. Structurally and conceptually, the Privacy Act and the Access Act create a complementary and harmonious legislative scheme: RCMP, at para. 22. This is evidenced in particular by the way in which the Acts make reference to each other (see, for example, ss. 19(1) and 19(2) of the Access Act, and ss. 3, 21, 46, and 65 of the Privacy Act) and by the lack of repetition between them. The two statutes also establish analogous roles for the Information Commissioner and the Privacy Commissioner, each of whom is charged with carrying out impartial, independent and non-partisan investigations into the violation of, respectively, the right of access to information and privacy rights. Indeed, pursuant to s. 55(1) of the Privacy Act, the Information Commissioner may be appointed as Privacy Commissioner, and thus a single individual can hold both offices. 

  34. The Information Commissioner and the Privacy Commissioner benefit not only individuals who request access or object to disclosure, but also the Canadian public at large, by holding the government accountable for its information practices. As this Court has emphasized in the past, the Commissioners play a crucial role in the investigation, mediation, and resolution of complaints alleging the improper use or disclosure of information under government control: Lavigne, at paras. 37-39. Also, as former Justice La Forest notes in a recent report entitled The Offices of the Information and Privacy Commissioners: The Merger and Related Issues, Report of the Special Advisor to the Minister of Justice (November 15, 2005) (“La Forest report”), at pp. 17-18, the role and responsibilities of the Commissioners extend even further to include auditing government information practices, promoting the values of access and privacy nationally and internationally, sponsoring research, and reviewing proposed legislation.

  35. However, as the following discussion will show, in the specific circumstances of the case at bar, the Privacy Commissioner and the  Information Commissioner are of little help because, with no power to make binding orders, they have no teeth. Where, as here, a party seeks to prevent the disclosure of information as opposed to requesting its release, the Commissioners’ role is necessarily limited by an inability to issue injunctive relief or to prohibit a government institution from disclosing information. Section 44 is therefore the sole mechanism under either the Access Act or the Privacy Act by which a third party can draw the court’s attention to an intended disclosure of personal information in violation of s. 19 of the Access Act, and by which it can seek an effective remedy on behalf of others whose privacy would be affected by the disclosure of documents for which the third party is responsible.

  36. The Privacy Act establishes a central role for the Privacy Commissioner in the protection of privacy rights. Under s. 29(1)(a) through (f), individuals who believe that personal information about themselves has been wrongfully used or disclosed by a government institution may complain to the Privacy Commissioner. The Privacy Commissioner is charged with receiving and investigating such complaints and, where they are well founded, with reporting his or her findings and recommendations to the appropriate government institution (ss. 29(1) and 35). To do this, the Commissioner is accorded broad investigative powers, including the powers to summon and enforce the appearance of persons, compel persons to give evidence, enter government premises, and examine records on government premises (s. 34). Pursuant to s. 37, the Privacy Commissioner may also carry out its own investigations in respect of personal information under the control of government institutions to ensure compliance with the Privacy Act. However, while these complaint mechanisms are important in the larger scheme of the Privacy Act, they are available only where the wrongful disclosure has already occurred and where the complaint is laid directly by the person who is the subject of the information that was wrongfully disclosed (i.e. not by a third party). The Privacy Commissioner may not, therefore, act to prevent the disclosure of personal information. 

  37. Third parties may receive some assistance from the Privacy Commissioner pursuant to s. 29(1)(h)(ii) of the Privacy Act, which requires the Privacy Commissioner to receive and investigate complaints “in respect of any other matter relating to .... the use or disclosure of personal information under the control of a government institution”. In contrast to s. 29(1)(a) through (f), this provision accords the Privacy Commissioner a broader ambit of investigation and does not appear to be limited to situations where the wrongful disclosure of personal information has already occurred or where the complaint was received directly from the individual involved. It may therefore be open to a third party to initiate a complaint on behalf of employees or others before disclosure occurs. This broader complaint mechanism is inadequate, however, because the Privacy Commissioner has no authority to issue decisions binding on the government institution or the party contesting the disclosure. Nor does the Commissioner have an injunctive power which would allow it to stay the disclosure of information pending the outcome of an investigation. Indeed, s. 7 of the Access Act requires the government institution to disclose the requested information within a specific time limit once a disclosure order is issued. The Privacy Commissioner’s ability to provide relief to Heinz is thus very limited.

  38. In a manner similar to the Privacy Act, the Access Act establishes a central role for the Information Commissioner, who is charged with protecting and acting as an advocate of the rights of access requesters, and with conducting investigations. In a dispute under the Access Act, where a person makes a request to a government institution for access to a record and the request is denied, the requester may file a complaint with the Information Commissioner, which the Commissioner must investigate (s. 30). Section 36 of the Access Act accords to the Information Commissioner broad investigative powers similar to those of the Privacy Commissioner and, as a result of its expertise, staff and flexibility, the office of the Information Commissioner is in a unique position to conduct such investigations: Davidson v Canada (Solicitor General), [1989] 2 F.C. 341 (C.A).

  39. However, the Information Commissioner is of only limited assistance in circumstances like those in the case at bar. The primary role of the Information Commissioner is to represent the interests of the public by acting as an advocate of the rights of access requesters. Here, Heinz is contesting a decision to disclose information. While s. 30(1)(f) of the Access Act charges the Information Commissioner with receiving and investigating complaints “in respect of any other matter relating to requesting or obtaining access to records under this Act” (emphasis added), such broad language does not change the fact that the role of the Information Commissioner, and this is consistent with the purpose of the Access Act as a whole, is to act, where appropriate, as an advocate of the disclosure of information. Moreover, like the Privacy Commissioner, the Information Commissioner may not issue binding orders or injunctive relief and accordingly cannot order the government not to disclose a record. 

  40. Section 44 thus establishes the sole mechanism within the scheme of the Access Act and the Privacy Act by which a third party may request an independent review of a ministerial or government decision to disclose information. As a result, s. 44 helps to promote the purposes of both Acts by providing an avenue for complaints relating to the violation of privacy and ensuring that government institutions are accountable for their information practices.

    5.1.4 Plain and Ordinary Meaning

  41. As has been discussed, a review under s. 44 of the Access Act is triggered by a third party’s right to notice where requested records may contain confidential business information. While the notice provisions relating to the disclosure of confidential business information therefore necessarily limit the availability of a s. 44 review, the plain language of ss. 28, 44 and 51 of the Access Actdoes not explicitly restrict the scope of the right of review. On the contrary, four key words or expressions, read in their “plain and ordinary meaning”, indicate the legislature’s intention to give the court a generous ambit of review on a s. 44 application.

  42. First, the plain language of s. 28 supports a broad interpretation of the review process. As has been mentioned, the Access Act provides that a third party has a right to make “representations” to the government institution as to why “the record or the part thereof should not be disclosed” (s. 28(1)(a)). As the trial judge noted, nothing in that section explicitly purports to limit the range of representations that can be made, “provided, of course, they are relevant to the issue of disclosure” (para. 24). Had the legislature intended to limit the scope of such representations, it would have included references to this effect.

  43. Second, the use of the word “record” in s. 28 indicates a legislative intent to make the entire record available for review, not simply the specific information subject to s. 20(1). Section 3 of the Access Act specifies that “record” includes a wide range of “documentary material, regardless of physical form or characteristics”, such as books, maps, drawings, photographs, sound recordings, and videotapes. This definition relates to the physical form of the information and places no limits on the scope of the review. Similarly, s. 51 of the Access Act refers to a reviewing judge in a s. 44(1) application determining whether a record “or part thereof” should be disclosed. The Access Act clearly envisions a “record” as a “set” of information which can be divided or severed. For example, a book may include many discrete and severable “pieces” of information, each of which might be reviewed on a different basis. This broader interpretation is confirmed by the use, in the French version of s. 28, of the word “document” rather than “renseignements”.

  44. Third, s. 44 allows the third party to apply to the court for a review of “the matter”. Nothing in the plain language of s. 44 expressly limits the scope of “the matter”. The French version is even more general because the subject of the review is not mentioned. What is more, in a case dealing with the interpretation of s. 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal Court of Appeal held that “matter” embraces “not only a ‘decision or order’ but any matter in respect of which a remedy may be available under section 18 of the Federal Court Act”: Krause v Canada, [1999] 2 F.C. 476, at para. 21; see also Morneault v Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 42.

  45. Finally, s. 51, which establishes the powers of the court on a s. 44 application, also suggests a broad interpretation. Section 51 states that:

    51.

    Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.

    [emphasis added]

    Again, nothing in this section limits the court’s discretion to a consideration of the s. 20(1) exemption alone. Indeed, the use of the word “required”, coupled with the mandatory nature of s. 19(1), suggests that the court has an obligation to review any aspect of the record where the government has failed to abide by the provisions governing disclosure. This obligation is underscored by the emphasis placed on the protection of privacy rights in both the Access Act and the Privacy Act.

  46. The broad language of s. 44, combined with the fact that this section provides the only direct access to the effective protection afforded by a reviewing court, lends support to the conclusion that the court’s jurisdiction should not be limited by the circumstances under which the third party was given notice. The plain language of the statute, together with the legislative context and combined purposes of the Access Act and the Privacy Act, provides ample foundation for the conclusion that the reviewing court has jurisdiction to protect personal information on a third party application for review.

    6. Arguments for Limiting the Scope of a Section 44 Review

  47. The parties have presented a number of arguments in support of a more restrictive interpretation of s. 44 which merit further attention.

    6.1 The History of Section 28(1)

  48. The Attorney General argues that because s. 27 refers specifically to “information described in paragraph 20(1)(b)”, s. 28 should also be read to include this reference. Prior to the revision and consolidation of the Statutes of Canada in 1985, the current s. 28(1)(a), which grants a third party the right to make representations to the government institution, and s. 27(1), which provides the third party with a right to notice of the decision to disclose, were combined in one provision (s. 28(5)). These rights to notice and to make representations were thus included in a single section which referred explicitly to the exemption under s. 20(1). Thus, according to the Attorney General, the right of a third party to make representations under s. 28 of the Access Act is limited to the part of the record which contains information described in s. 20 or, in other words, to confidential business information. 

  49. However, where a statutory provision is severed, the introductory words of the first provision are not necessarily read into the second: R. v McIntosh, [1995] 1 S.C.R. 686. In McIntosh, a case concerning two provisions which had originally been combined in one, the Court refused to read the introductory words of the original provision into the new provisions. Finding that Parliament’s decision not to reproduce the crucial words in the second provision “is the best and only evidence we have of legislative intention” (para. 25), Lamer C.J. concluded that he could not distort the clear and unequivocal wording of the provision. In the instant case, Parliament’s decision not to link s. 28 explicitly to s. 20 must be regarded as significant. Moreover, no inconsistent results flow from a non-restrictive reading of the provision. Rather, interpreting ss. 28 and 44 to allow for representations based on s. 19 serves to strengthen the protection of personal information, which is a stated goal of thePrivacy Act and an underlying theme of the Access Act.

    6.2 The Notice Scheme

  50. The Attorney General argues that the special notice accorded to third parties under the Access Act is proof that a third party should be able to raise only a s. 20(1) exemption in a s. 44 application. The right of review under s. 44 is triggered by a third party’s right to notice where confidential business information is alleged to exist; therefore, the Attorney General asserts, the scope of s. 44 should be limited to such information. He suggests that Parliament’s failure to provide similar notice provisions where personal information is involved indicates that the legislature did not intend that s. 19 should be available on a s. 44 application.

  51. This argument is unconvincing. The unique notice given to third parties is tied to the specific nature of the exemption. While a government institution would not have any specific knowledge of the business or scientific dealings of a third party, the subject matter of the other exemptions falls generally within the expertise of government officials and/or the Privacy Commissioner. These exemptions relate, for example, to information obtained in confidence from a foreign state, federal‑provincial affairs, international affairs, investigations and law enforcement, safety of individuals, the economic interests of Canada, advice and recommendations to a minister, testing procedures, solicitor‑client privilege, and statutory prohibitions (see ss. 13 to 24 of the Access Act). Moreover, information covered by these exemptions would likely implicate the public interest in such a way that it would supersede any individual rights of access to information. In the case of confidential business information, however, the assistance of the third party is necessary for the government institution to know how, or if, the third party treated the information as confidential. Indeed, the third party’s information management practices may be an important means of determining whether the information actually meets the definition of “confidential”: Canadian Tobacco Manufacturers’ Council v M.N.R. (2003), 239 F.T.R. 1, 2003 FC 1037, at para. 114; Air Atonabee Ltd. v Canada (Minister of Transport) (1989), 27 F.T.R. 194, at para. 37; Brookfield LePage Johnson Controls Facility Management Services v Canada (Minister of Public Works and Government Services), [2003] F.C.J. No. 348 (QL), 2003 FCT 254, at para. 13. Whether the information is confidential cannot be determined without representations from the third party.

  52. Moreover, in my view, the mandatory nature of s. 19 precludes the need for a notice provision. Notice under the Access Act is a right intended to enable a party to contest the release of information and is therefore required only where the statute contemplates the possibility of making information public, as is the case with confidential business information under s. 20(1). Section 19, however, provides that a government institution “shall refuse to” disclose personal information. The three exceptions carved out of this rule under s. 19(2) make it clear why a general notice provision is unnecessary.

  53. First, personal information may be disclosed if the individual consents (s. 19(2)(a)). Clearly, if the individual consents, he or she will not contest the disclosure of the information, and as a result no express notice provision is necessary. A government institution can easily determine whether the individual has in fact consented to the release of personal information subject to s. 19.

  54. Second, personal information may be disclosed where the government institution determines that the requested information is already in the public domain (s. 19(2)(b)). Again, in such circumstances, notice to the individual to whom the information relates would serve no useful purpose – the individual party cannot control access to information in the public domain and so, presumably, has no grounds on which to contest disclosure. 

  55. Third, a government institution may disclose personal information in exceptional circumstances in which the public interest in disclosure outweighs an individual’s right to privacy (s. 19(2)(c) of the Access Act and s. 8(2)(m) of the Privacy Act). Should such circumstances arise, Parliament has provided for the individual to be notified via the Privacy Commissioner (s. 8(5) of the Privacy Act). Where the government exercises its discretion to disclose personal information on the basis of public interest, the Privacy Commissioner must be informed prior to the disclosure, where practicable, and may notify the individual involved.

  56. In my view, therefore, the right to notice accorded to third parties follows logically from the specific nature of the confidential business information exemption and does not limit the right of review provided for in s. 44. 

    6.3 The Creation of “Two Levels” of Third Parties

  57. The Attorney General further submits that allowing third parties to raise, on a s. 44 review, exemptions other than those provided for in s. 20(1) will result in the creation of two categories of third parties: those who receive notice under s. 20(1) and those who do not. If the possible application of s. 20(1) by the government institution had not occurred, the Attorney General argues, Heinz would not have received notice of the possible disclosure of records and would not have been able to make submissions in respect of the application of s. 19. To put it in more basic terms, why should Heinz be afforded an opportunity to invoke s. 19 that is not available to other parties who are not “third parties” under the Access Act? 

  58. This argument is, in my view, unsound. A basic premise of the Access Act is that personal information will not be disclosed in violation of the mandatory prohibition set out in s. 19. The access to information and privacy scheme is founded on the assumption that government institutions will respect the mandatory prohibition on disclosing personal information and that no notice is therefore required for personal information relating to individuals. As I have stated, in the specific circumstances in which the Access Act does authorize the disclosure of personal information – where the information is already publicly available, where the individual to whom the information relates consents, or where there is an overriding public interest – a notice provision is either superfluous or has in fact been provided for in the legislative scheme (s. 8(5) of the Privacy Act). Given this underlying presumption that personal information will not be disclosed as well as the paramount importance of individual privacy, it would therefore be absurd not to allow third parties to use the mechanism provided for by the legislature to prevent a violation of the spirit and the letter of the Access Act and thePrivacy Act. Allowing Heinz to raise the s. 19 exemption on a s. 44 review does not create a “second tier” of third parties, but allows the only third party who has access to s. 44 to use this remedy to prevent harm from occurring needlessly.

  59. A third party’s right of review under s. 44 therefore provides an appropriate avenue for scrutinizing government decisions to disclose information that affects an individual’s right to privacy. Of course, the court must be wary of attempts by third parties to avail themselves of the personal information exemption to prevent the legitimate disclosure of information. Such attempts to abuse the s. 19 exemption are easily uncovered, however, by determining whether the records in question actually contain personal information.

    6.4 The “Discretionary” Nature of the Section 19 Exemption

  60. The Information Commissioner suggests that the personal information exemption is more appropriately characterized as “discretionary” because the government institution has the discretion to disclose personal information where the violation of the right to privacy is clearly outweighed by the public interest in disclosure (s. 19(2) of the Access Act, s. 8(2)(m) of the Privacy Act). The parties dispute this characterization of s. 19 because, under the framework established by Layden-Stevenson J. at trial, discretionary exemptions may not be raised in a s. 44 review proceeding.

  61. Even if I accepted the dichotomy between discretionary and mandatory exemptions, I would disagree with the Information Commissioner’s argument. The narrow scope of the discretion provided for in s. 19(2) was not at issue in this case and should not be viewed as undermining the mandatory character of s. 19(1), which clearly states that the government institution “shall refuse to disclose any record requested under this Act that contains personal information” (emphasis added). As this Court stated in Dagg, the personal information exemption should not be given a “cramped interpretation” by giving access pre-eminence over privacy: Dagg, at para. 51. Moreover, on the facts of the instant case, there is no debate regarding the existence of a pressing concern of public interest that would preclude disclosure; both parties have conceded that s. 19(1) is the only relevant exemption.

    6.5 The Availability of Judicial Review Under Section 18.1 of the Federal Courts Act

  62. Finally, Heinz argues in the alternative that if the s. 44 review is limited to confidential business information, it retains an “independent” common law right of review that has been codified in s. 18.1(1) of the Federal Courts Act, which allows a party directly affected by a decision of a federal board, commission or tribunal to apply for judicial review. Having found that an application for a review under s. 44 is available to Heinz, I need not fully consider this argument. However, in my view, a conclusion that would force a party to split its complaint into two parallel proceedings is problematic. Such a scenario would become even more burdensome if the personal information related to multiple individuals. For example, if the requested records included personal information relating to a number of consumers or past employees, the third party might not be in a position to alert all the individuals concerned that their privacy rights were in danger of being violated. Moreover, not only would multiple proceedings be an unwarranted use of resources, but the applicable standard of review may not be the same in a s. 44 proceeding as would be the case in the context of a s. 18.1(1) application for judicial review. As I have suggested, however, I find that Heinz need not seek this residual right of review, because s. 44 already provides an adequate alternate remedy: Harelkin v University of Regina, [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 S.C.R. 3.

    7. Conclusion

  63. The importance of protecting personal information, combined with the open language of ss. 28, 44(1) and 51 of the Access Act, leads to the conclusion that a reviewing court can, on a s. 44 application, consider and apply the privacy exemption set out in s. 19(1). Where it has come to the attention of a third party that a government institution intends to disclose information which will violate the statutorily mandated, quasi‑constitutional privacy rights of an individual, the third party must have the right to raise this concern upon judicial review. A contrary ruling would force individuals to wait until the personal information has been disclosed and the (potentially irreversible) harm done before looking to the Privacy Commissioner or the courts for a remedy. While the Privacy Commissioner and the Information Commissioner play a central role in the access to information and privacy scheme and have extensive responsibilities, s. 44 provides the sole recourse in situations where a third party seeks to prevent the disclosure of personal information. A narrow interpretation of s. 44 would thus weaken the protection of personal information and dilute the right to privacy.

  64. For these reasons, I would dismiss the appeal with costs.

    Bastarache J

    (with whom McLachlin CJ & Lebel J)

    1. Introduction

  65. The issue on appeal is whether a third party can raise the exemption from disclosure for personal information contained in s. 19 of the Access to Information Act,  R.S.C. 1985, c. A-1 (“Access Act”), and ss. 3 and 8 of the Privacy Act, R.S.C. 1985, c. P-21, during a review proceeding initiated pursuant to s. 44 of the Access Act. This case brings to the fore the delicate balance Parliament has struck between promoting rights of access to records under government control, and protecting the personal information of individuals appearing in those records.

  66. Where a government institution receives a request under the Access Act, and it concludes that the requested record may contain confidential business information about a third party, it must provide notice to that third party. The third party then has the right to make representations on the record, and it is entitled to notice of the government institution’s decision to disclose the record. A third party who has received such notice is subsequently entitled to bring a s. 44 review of the matter. Where the court determines that the government institution is required to refuse disclosure, then it shall order that the institution not disclose the record.

  67. As the facts of this case and the decisions below have been addressed in the reasons of Deschamps J., I proceed directly to the statutory interpretation of s. 44 of the Access Act. This Court has consistently held that

    [t]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

    (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.)

    2. The Purpose of the Access Act

  68. The Access Act must be read in light of the Privacy Act, which together form a coherent scheme governing the competing rights of access and privacy. They are complementary and equal statutes whose provisions must be construed harmoniously: Dagg v Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 51, per La Forest J., dissenting but not on this point. Section 2(1) of theAccess Act describes the purpose of the Act 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.

  69. Access to information under government control is meant to facilitate democracy. As La Forest J. explained in Dagg, at para. 61, “[i]t helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry”.

  70. Nonetheless, the goal of access must be understood in the context of the Act, which itself provides for a number of exemptions in ss. 13 to 24 and 26. According to s. 2, these necessary exceptions to access should be limited and specific. However, Gonthier J., speaking for a unanimous Court in Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, 2003 SCC 8, explained that “[t]he statement in s. 2 of the Access Act that exceptions to access should be ‘limited and specific’ does not create a presumption in favour of access” (para. 21).

  71. Personal information is specifically exempted from the general rule of disclosure pursuant to s. 19 of the Access Act, subject to certain exceptions which are not at issue on this appeal. Personal information is defined in s. 19 of the Access Act by reference to s. 3 of the Privacy Act, which illustrates the complementary relationship between both statutes that I have described above. Section 3 defines “personal information” as information about an identifiable individual that is recorded in any form, and lists a number of examples. Parliament has thus struck a careful balance between the right to access records within government control, and the right to have all personal information in those records kept private. La Forest J. in Dagg, went so far as to state that “[b]oth statutes recognize that, in so far as it is encompassed by the definition of ‘personal information’ in s. 3 of the Privacy Act, privacy is paramount over access” (para. 48).

  72. Even accepting, however, that privacy is paramount over access, it does not follow that Parliament is obliged to create a notice and review mechanism prior to the disclosure of personal information. The policy decision of how to balance rights of access and the right to privacy is one reserved for Parliament. As the following analysis demonstrates, Parliament has entrusted the promotion of access to government records and the protection of personal information to two Commissioners who effectively act as ombudsmen. Their offices are independent of government, and their role is to impartially investigate complaints made against government institutions. In fact, the structure of both the Access Act and the Privacy Act also indicates that, apart from s. 44 review proceedings, Parliament has seen fit to limit opportunities for judicial review until after the Information Commissioner has conducted its investigation of the complaint.

    3. The Role of the Federal Information and Privacy Commissioners

    3.1 Remedies Available Under the Access Act and the Privacy Act

  73. The privacy interests of third parties are protected by the Privacy Act, in particular, by s. 29 which protects the personal information of third parties by establishing a complaint and investigation procedure:

    29.

    (1)

    Subject to this Act, the Privacy Commissioner shall receive and  investigate complaints

    (a)

    from individuals who allege that personal information about themselves held by a government institution has been used or disclosed otherwise than in accordance with section 7 or 8;

    ....

    (h)

     

    in respect of any other matter relating to

    ....

    (ii)

    the use or disclosure of personal information under the control of a government institution

    ....

  74. Under s. 29(2), nothing precludes the Privacy Commissioner from receiving and investigating complaints submitted by a person authorized by the complainant to act on behalf of him or her. It would therefore be open to Heinz to initiate a complaint on behalf of its employees in order to protect their personal information. The Privacy Commissioner has the power to investigate the complaint and has broad powers  under that process (ss. 31to 34 of the Privacy Act), including the rights to summon and enforce the appearance of witnesses, compel witnesses to give evidence or produce documents, and enter premises of government institutions and inspect records found there (s. 34(1)). The Privacy Commissioner also has the authority to access any document (except Cabinet confidences) under the control of a government institution, including documents that would otherwise be protected by a legal privilege (s. 34(2)). Section 33 of the Privacy Act ensures that every investigation of a complaint is conducted in private. Where the complaint is well‑founded, the Privacy Commissioner reports his or her findings and recommendations to the appropriate government institution (s. 35). The Privacy Commissioner does not, however, have the power to order the release of information or compel the institution to do anything or refrain from doing anything with respect to the information. Pursuant to s. 37, the Privacy Commissioner may also, from time to time, at his discretion, carry out investigations in respect of personal information under the control of government institutions to ensure compliance with ss. 4 to 8 of the Privacy Act, which deal with the collection, retention, disposal and protection of personal information.

  75. I have already mentioned that the exemption from disclosure for personal information is subject to a number of exceptions. Pursuant to s. 19(2)(c) of the Access Act, the head of a government institution may disclose any requested record that contains personal information if the disclosure is in accordance with s. 8 of the Privacy Act. Section 8(2)(m)(i) of the Privacy Act authorizes disclosure of personal information “for any purpose where, in the opinion of the head of the institution, .... the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure”. Where a government institution uses this discretionary power to disclose personal information, s. 8(5) provides that it shall notify the Privacy Commissioner in writing prior to the disclosure where reasonably practicable. This results in an added measure of protection for personal information that is to be disclosed in the public interest, insofar as the Privacy Commissioner can intervene prior to the disclosure.

  76. It may also be open to the Information Commissioner to receive and investigate a complaint brought by a third party resisting disclosure. The Information Commissioner can receive and investigate complaints “in respect of any other matter relating to requesting or obtaining access to records under this Act,” pursuant to s. 30(1)(f) of the Access Act. It is unclear whether this might include complaints pertaining to the unlawful disclosure of personal information. The Information Commissioner typically receives complaints from information requesters, where disclosure of a requested record has been refused, delayed or otherwise unsatisfactory. In any event, the Office of the Privacy Commissioner would appear to be more suited to the receipt and investigation of a complaint by a third party resisting disclosure on the basis of the s. 19 exemption for personal information, since it is charged with receiving and investigating all complaints brought pursuant to the Privacy Act.

    3.2 The Effect of Allowing the Section 19 Exemption to be Raised on a Section 44 Review Proceeding on the Role of the Commissioners

  77. Generally, the Access Act requires an investigation by the Information Commissioner prior to proceeding to a judicial determination of whether the government institution can lawfully refuse disclosure. Section 44 proceedings constitute the sole exception to this scheme.

  78. The Information Commissioner is authorized to receive and investigate complaints under s. 30(1) of the Access Act, where disclosure of a requested record has been refused, delayed or is otherwise unsatisfactory. The information requester, the head of the government institution who has control of the record, and, where the Commissioner believes that the record may contain confidential business information, the third party, have participation rights in that investigative process. As with investigations conducted by the Privacy Commissioner, every investigation of a complaint by the Information Commissioner is conducted in private (s. 35). Pursuant to s. 36(1) of the Access Act, the Information Commissioner has the same broad investigatory powers as the Privacy Commissioner, which I have listed above. Section 36(2) of the Access Act provides the Information Commissioner with the right to examine any record to which the Access Act applies that is under the control of a government institution, regardless of privilege. Contrary to the Privacy Act, s. 36(2) of the Access Act does not exclude Cabinet confidences from this general right of access. Where the complaint is determined to be well‑founded, the Information Commissioner can report his findings and recommendations to the head of the government institution that has refused disclosure (s. 37(1)), and must also notify any party who received notice of the investigation and opted to participate (s. 37(2)).

  79. Where an information requester has been denied access to a record, s. 41 of the Access Act provides a right of review. However, this right is only available where a complaint was initially made to the Information Commissioner, and where the information requester has received notice of the results of the investigation. In other words, the Access Act ensures that the Information Commissioner, as opposed to the courts, is entrusted with the initial review of the complaint. Where the government institution refuses disclosure following the Information Commissioner’s investigation and recommendation, it is also open to the Commissioner to bring an application for review so long as he has the consent of the information requester (s. 42(1)(a) of the Access Act).

  80. Section 44 proceedings constitute the sole exception in this statutory scheme. A third party who has received notice that the government institution intends to disclose the record can apply directly to the court for a s. 44 review of the matter. Where the court determines that the head of a government institution is required to refuse to disclose a record or part of a record, the court shall order the head of the institution not to disclose the record (s. 51 of the Access Act). The information requester is given notice of the hearing and is entitled to appear as a party (s. 44(3) of the Access Act). The Information Commissioner, however, is only entitled to appear as a party with leave of the court (s. 42(1)(c) of the Access Act). Where a s. 44 proceeding results in an order not to disclose the record, the court order effectively precludes any investigation by the Information Commissioner. If a third party was also entitled to raise the s. 19 exemption for personal information at a s. 44 review proceeding, the role of the Information Commissioner would be further compromised.

    3.3 The Broader Role of the Information and Privacy Commissioners

  81. The function of the Information and Privacy Commissioners is described as akin to that of an ombudsman. Speaking of the Privacy Commissioner and of the Commissioner of Official Languages, this Court stated in Lavigne v Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53, at para. 37, that:

    In many significant respects, the mandates of the Commissioner of Official Languages and the Privacy Commissioner are in the nature of an ombudsman’s role (see M. A. Marshall and L. C. Reif, “The Ombudsman: Maladministration and Alternative Dispute Resolution” (1995), 34 Alta. L. Rev. 215):

    They are independent of the government’s administrative institutions and hold office during good behaviour for a specified period. They receive the same salary as a judge of the Federal Court. This independence is reinforced by the fact that they may not, as a rule, be compelled to testify, and no civil or criminal proceedings lie against them for anything done in the performance of their duties;

    They examine complaints made by individuals against the government’s administrative institutions, and conduct impartial investigations;

    They attempt to secure appropriate redress when the individual’s complaint is based on non‑judicial grounds;

    They attempt to improve the level of compliance by government institutions with the Privacy Act and the Official Languages Act;

    As a rule, they may not disclose information they receive.

  82. Both the Privacy Commissioner and the Information Commissioner hold office during good behaviour for a set term of seven years, though they may be removed by the Governor in Council at any time on address of the Senate and House of Commons: s. 53(2) of the Privacy Act and s. 54(2) of the Access Act. Both Commissioners are paid a salary equal to that of a Federal Court judge: s. 55(2) of the Access Act and s. 54(2) of the Privacy Act. No criminal or civil proceedings lie against them for anything done in the performance of their duties: s. 66(1) of the Access Act and s. 67(1) of thePrivacy Act. Both Commissioners are authorized to receive and investigate complaints, and to secure appropriate redress via non-binding recommendations to the particular government institution. Both Commissioners may only disclose information they receive in the course of their investigation in the narrow circumstances set out in the statutes: see ss. 63 and 64 of the Access Act, as well as ss. 64 and 65 of the Privacy Act. I would also note that their independent function is underlined in the purpose section of the Access Act, which provides that the disclosure of government information should be reviewed independently of government (s. 2(1)).

  83. The approach followed by the Commissioners in investigating complaints and making recommendations, where warranted, is understood to be less formal than the judicial process. The Commissioners’ purpose is to resolve disputes in an informal manner, and their offices were specifically created to address the limitations of the legal proceedings in this respect: see Lavigne, at para. 38. At para. 39, the Court went on to explain that:

    An ombudsman is not counsel for the complainant. His or her duty is to examine both sides of the dispute, assess the harm that has been done and recommend ways of remedying it. The ombudsman’s preferred methods are discussion and settlement by mutual agreement. As Dickson J. wrote in British Columbia Development Corp. v Friedmann, [1984] 2 S.C.R. 447, the office of ombudsman and the grievance resolution procedure, which are neither legal nor political in a strict sense, are of Swedish origin, circa 1809. He described their genesis (at pp. 458‑59):

    As originally conceived, the Swedish Ombudsman was to be the Parliament’s overseer of the administration, but over time the character of the institution gradually changed. Eventually, the Ombudsman’s main function came to be the investigation of complaints of maladministration on behalf of aggrieved citizens and the recommendation of corrective action to the governmental official or department involved.

    The institution of Ombudsman has grown since its creation. It has been adopted in many jurisdictions around the world in response to what R. Gregory and P. Hutchesson in The Parliamentary Ombudsman (1975) refer to, at p. 15, as “one of the dilemmas of our times” namely, that “(i)n the modern state .... democratic action is possible only through the instrumentality of bureaucratic organization; yet bureaucratic – if it is not properly controlled – is itself destructive of democracy and its values”.

    The factors which have led to the rise of the institution of Ombudsman are well‑known. Within the last generation or two the size and complexity of government has increased immeasurably, in both qualitative and quantitative terms. Since the emergence of the modern welfare state the intrusion of government into the lives and livelihood of individuals has increased exponentially. Government now provides services and benefits, intervenes actively in the marketplace, and engages in proprietary functions that fifty years ago would have been unthinkable.

  84. Former Justice La Forest, in a recent report entitled The Offices of the Information and Privacy Commissioners: The Merger and Related Issues, Report of the Special Advisor to the Minister of Justice (November 15, 2005) (“La Forest report”), at p. 15, explains that the primary duty of both the Information and Privacy Commissioners to independently and impartially investigate complaints and make recommendations is in keeping with this ombudsman function.

  85. La Forest notes that the Commissioners exercise a number of other important functions [pp. 16‑17]:

    The Privacy Commissioner, for instance, is empowered to audit government institutions to ensure that they are complying with their obligations under the Act, recommend changes to effect compliance, and report failures to comply to the institution and Parliament. The Privacy Commissioner may also assess whether a government institution’s decision to designate a data bank as exempt from disclosure was correct, and ask the Federal Court to rule on the question if the government institution fails to accept the Commissioner’s determination that it was not. Both commissioners must also submit annual reports to Parliament and may in addition submit special reports with respect to urgent matters.

    [footnotes omitted]

  86. The Privacy Commissioner has inherited additional responsibilities with the enactment of Part 1 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. Moreover, the Commissioners are also active in promoting the values of access and privacy in a variety of national and international fora. The “Commissioners have commented on proposed legislation and government policies, appeared before parliamentary committees, conducted surveys, sponsored research, published summaries of findings, and given public lectures”: see La Forest report, at p. 18.

  87.  This has led some commentators to conclude that the Privacy Commissioner is “expected at some point to perform seven interrelated roles: ombudsman, auditor, consultant, educator, policy advisor, negotiator and enforcer”: C.J. Bennett, “The Privacy Commissioner of Canada: Multiple Roles, Diverse Expectations and Structural Dilemmas” (2003), 46 Canadian Public Administration 218, at p. 237, cited in La Forest report, at p. 18. Many of these roles are also performed by the Information Commissioner: La Forest report, at p. 18.

    4. The Legislative Scheme Surrounding Section 44 of the Access Act

    4.1 The Statutory Context

  88. This Court has held that statutory interpretation cannot be founded on the wording of the legislation alone: Rizzo & Rizzo Shoes, at para. 21. As the previous analysis demonstrates, s. 44 review proceedings are part of a complex statutory code. Heinz initially became aware of the access request that formed the basis of the s. 44 review via s. 27(1) of the Access Act, which provides:

    27.

    (1)

    Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain

    (a)

    trade secrets of a third party,

    (b)

    information described in paragraph 20(1)(b) that was supplied by a third party, or

    (c)

    information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,

    the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.

    Section 27(1) is a notice provision for third parties where there has been an access request for a record containing information listed in (a) to (c). Those subsections refer directly to the exemption from disclosure contained in s. 20(1) of the Access Act:

    20.

    (1)

    Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

    (a)

    trade secrets of a third party;

    (b)

    financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

    (c)

    information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

    (d)

    information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

  89. For ease of reference, I refer to information exempted from disclosure pursuant to s. 20 as confidential business information. Where a third party has received notice pursuant to s. 27(1) because of the believed presence of confidential business information in the requested record, s. 28(1)(a) provides the third party with an opportunity to make representations to the head of the government institution as to why the record should not be disclosed. Pursuant to s. 28(1)(b), the third party is then entitled to notice of the government institution’s decision as to whether or not to disclose the record. A third party who receives notice pursuant to s. 28(1)(b) of the government institution’s decision to disclose the record has a right to apply for a review pursuant to s. 44:

    44.

    (1)

    Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.

    ....

  90. Section 29(1) is not at issue on this appeal. It deals with the slightly different situation of a government institution initially refusing disclosure, and then opting to follow the recommendation of the Information Commissioner to disclose the requested record. Pursuant to s. 29(1), notice must be given to the third party who initially received notice, or would have received notice, under s. 27(1) because of the believed presence of confidential business information in the record.

  91. Pursuant to s. 51 of the Access Act, where the court determines, after considering an application under s. 44, that the head of a government institution is required to refuse to disclose a record, the court shall order the head of the institution not to disclose the record or shall make such other order as the court deems appropriate.

  92. Deschamps J. relies on the broad wording of s. 44 and its related sections in order to conclude that a third party who has received notice pursuant to s. 28(1)(b) of the Access Act can raise the s. 19 exemption from disclosure for personal information on a s. 44 review. She relies, in particular, on the following:

    • Section 28(1)(b) allows the third party to make representations as to why the record should not be disclosed. There is no language in that section that limits the range of representations that can be made.

    • Similarly, the language of s. 28(1)(b) suggests that representations can be made as to why the record should not be disclosed, as opposed to explicitly limiting the right to make representations to that part of the record that contains confidential business information.

    • Section 44 allows for a review of the matter, without expressly limiting the scope of what is reviewable.

    • Finally, s. 51 states that the court shall make an order where it determines that the head of a government institution is required to refuse to disclose the record. In determining whether the government institution is required to refuse disclosure, s. 51 does not explicitly limit the court’s consideration to the s. 20 exemption from disclosure for confidential business information.

  93. The court is obliged to consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon initial reading: Chieu v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 34; ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4, at para. 48; R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 20‑21. Some of the legislative provisions at issue are broadly worded. The intended meaning of open‑ended expressions such as “representations”, “record”, and “matter” is lost when they are read in isolation: see ATCO, at para. 46.

  94. Within its proper statutory context, the intended meaning of “representations”, “record”, and “matter” becomes clear. The right to bring a s. 44 review flows from the notice a third party receives because of the believed presence of confidential business information in the requested record. The parties, and indeed Deschamps J., concede that notice is only required where s. 20 is possibly applicable because of the very nature of that exemption. Only the third party itself can clearly state whether or not the grounds listed in s. 20 apply to the information requested. This is because, considering the criteria listed in s. 20, only the third party can establish what information it treated or treats as confidential, as well as the effect of disclosure on its revenue or on its competitive position.

  95. Deschamps J. includes in her reasons for judgment a brief analysis of the legislative history of ss. 27 and 28 of the Access Act, the notice provisions ultimately resulting in a right to bring an application for a s. 44 review. I do not find this legislative history to be particularly helpful in determining the proper scope of a s. 44 review. The legislative context, by contrast, provides considerable insight into the legislative intent behind the review process.

  96. The complaint and investigation process that I have outlined above constitutes the mechanism Parliament has selected in order to balance access rights with the need to protect individuals’ personal information. Where the personal information of individuals is improperly disclosed, those individuals can bring a complaint to the Privacy Commissioner under s. 29 of the Privacy Act. There is no notice provision prior to the disclosure of a requested record that might contain exempted personal information, nor does the unlawful disclosure of exempted personal information give rise to a right of judicial review under the Access Act or the Privacy Act. Indeed, ss. 27, 28 and 44 of the Access Act constitute the only available notice and review mechanisms under the statutory scheme meant to permit resistance to disclosure of a requested record.

  97. Considered in its proper statutory context, s. 44 has nothing to do with the s. 19 exemption from disclosure for personal information. The right to bring a s. 44 application arises from the believed presence of confidential business information in the requested record. The structure of the Access Act and of the Privacy Act suggests that Parliament intended that the protection of personal information be assured exclusively by the Office of the Privacy Commissioner. Equally important is Parliament’s desire to have all judicial reviews under the Acts preceded by an impartial investigation conducted by the Information Commissioner. The only exception provided in the statutory scheme is where confidential business information potentially appears in the requested record.

    4.2 To Allow the Section 19 Exemption to be Raised on a Section 44 Proceeding Would Lead to Absurd Results

  98. It is presumed that the legislature does not intend its legislation to result in  absurd consequences: see Sullivan, at p. 236. The only available notice and review mechanisms to resist disclosure is that provided in ss. 27, 28 and 44 of the Access Act. The Act does not require notice to a third party prior to disclosure of information relating to that party except in the circumstances set out in s. 28(1). Where the head of a government institution concludes that the information requested is not confidential business information, notice to the third party is not required, will not be ordered by the court and no right to apply for review under s. 44(1) arises.

  99. Unless the opportunity to raise exemptions at a s. 44 review proceeding is limited to that contained in s. 20, third parties who have received notice pursuant to s. 28(1)(b) will be afforded an opportunity to raise the s. 19 exemption for personal information in circumstances where no comparable right exists for a third party claiming only that the record contains personal information belonging to it.

  100. The only reason Heinz is able to raise the s. 19 exemption in the present appeal is the possible application of s. 20 and the notice received pursuant to ss. 27 and 28. Were it not for the possible application of s. 20, there would be no possibility of bringing a s. 44 review. The effect of the proposed extension of the s. 44 review would be to create two categories of third parties: those who receive notice under ss. 27 to 29 of the Access Act and those who do not. In other words, the distinction would be between third parties who have relevant confidential business information and those who do not. Such a result is absurd insofar as it allows greater protection of certain individuals’ personal information, depending on the possible application of s. 20. Individuals with relevant confidential business information would thus benefit from a greater protection for their personal information than individuals without such information. There is no basis for such a two‑tiered system in either the Access Act or the Privacy Act.

  101. Deschamps J.’s proposed interpretation of s. 44 leads to a second absurd consequence. It is unlikely that Heinz itself possesses personal information within the meaning of s. 3 of the Privacy Act. Section 3 includes a non‑exhaustive list of information which is considered personal information. Elements of this list reinforce the conclusion that only human beings can constitute identifiable individuals, because only human beings have a race; colour; religion; age; marital status; education; medical, criminal or employment history; fingerprints; and blood type. Heinz is raising s. 19 in the present case in order to protect the personal information of several of its employees. While both the Access Act and the Privacy Act expressly allow an authorized agent to bring complaints to the Information Commissioner or to the Privacy Commissioner, respectively, s. 44 does not so provide.

  102. The right to apply for a review under s. 44 belongs to the third party who has received notice of the decision not to disclose the record – in this case, Heinz. The employees of Heinz whose personal information is implicated do not have the right to apply for a s. 44 review. In other words, the interpretation proposed by Deschamps J. has the effect of allowing Heinz to object to the intended disclosure because of the presence of personal information belonging to its employees, in circumstances where the affected employees themselves have no right whatsoever to bring an application for review under the Act. It cannot be the intention of Parliament, in my view, that Heinz can raise s. 19 on behalf of its employees in circumstances where its employees have no right under the Access Actor the Privacy Act to raise the objection on their own behalf at a judicial hearing.

    5. Conclusion on the Proper Interpretation of Section 44 of the Access Act

  103. Parliament has entrusted the monitoring of government compliance with the Access Act and the Privacy Act to the Office of the Information Commissioner and the Office of the Privacy Commissioner. The role of these offices is akin to that of an ombudsman and is indicative of a policy decision to adopt a non‑litigious dispute resolution mechanism in the context of complaints arising from individuals seeking access to government information or from third parties seeking to protect their personal information. The current scheme creates a more accessible review process of the decision of a government institution to disclose or not to disclose a requested record.

  104. This accessible, informal and non-litigious complaint resolution process results in the Commissioners making non-binding recommendations to the government institution that is the subject of the complaint. The consequence of such a policy decision is, as Deschamps J. has noted, that the role of the Commissioners is necessarily limited by their inability to issue injunctive relief or to prohibit a government institution from disclosing information. Pending the receipt of their recommendations, or even upon receipt of a recommendation not to disclose the record, there is nothing to prevent the government institution from proceeding with disclosure. In fact, the government institution is required by s. 7 of the Access Act to provide notice to the information requester of its decision to disclose or to refuse disclosure within 30 days following receipt of the request. If the government institution opts to disclose the record, then access must be provided to the requester within that same time frame. The government institution can however extend that time limit pursuant to s. 9(1) of the Access Act, if:

    9.

    (1)

    ....

    (a)

    the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,

    (b)

    consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or

    (c)

    notice of the request is given pursuant to subsection 27(1)

    In all such cases, the requester must be notified of the extension and of his or her right to complain to the Information Commissioner about the delay. Where the head of a government institution extends a time limit for more than 30 days, notice of the extension must also be given to the Information Commissioner according to s. 9(2).

  105. The Commissioners do not have the decision-making or remedial capacity to prevent the unlawful disclosure of a requested record. Moreover, apart from a s. 44 proceeding, judicial review under the Privacy Act and under the Access Act is limited to cases where the government institution has refused to disclose the requested information. Partly for these reasons, Deschamps J. expresses concern that a narrow interpretation of s. 44 would weaken the protection of personal information. The La Forest report mentions that a number of provinces, including Quebec, Ontario, British Columbia, Alberta and Prince Edward Island, have given the provincial Commissioners the power to issue final decisions settling disputes about complaints, subject to judicial review: see p. 50. This reflects a different policy decision than that taken by Parliament. La Forest explains, however, that [p. 50]

    Commissioners in most of these provinces use this power sparingly, preferring whenever possible to resolve complaints through conciliation, mediation, and other informal means. They nonetheless consider the existence of this power, which provides a strong incentive to the parties to settle on reasonable terms, to be essential to their effectiveness

    [footnote omitted]

    La Forest concludes that the option of granting such powers to the federal Information and Privacy Commissioners is worthy of further study: see p. 52. The decision of whether or not to extend such powers to the Commissioners is a complicated one that must balance the protection of personal information with the need for an accessible, informal and expeditious complaints resolution system in order to promote access to information. It is quite clearly a decision best left to Parliament.

  106. In interpreting s. 44 of the Access Act, it is necessary to preserve the integrity of the mechanism Parliament has selected in order to balance the competing rights of access and privacy. Where personal information has been unlawfully disclosed, that mechanism consists of the complaint and investigation process provided by s. 29 of the Privacy Act, and of the additional protection provided by s. 8(5) of the Privacy Act, where a government institution intends to disclose personal information on the basis that the public interest in disclosure outweighs any invasion of privacy. This process is nothing more than the expression of a governmental policy decision reflecting its own evaluation of the advantages and disadvantages of various options, in terms of principles and operational requirements. Its integrity must be respected in order to give effect to legislative intent.

  107. As previously mentioned, Deschamps J. expresses concern in her reasons about what she views as the lack of protection in the Acts for individuals’ personal information. However, her interpretation of s. 44 of the Access Act only provides a right of review to resist disclosure on the basis of s. 19 in the limited circumstances where confidential business information potentially appears in the requested record. This results in inequities, as mentioned earlier. Moreover, as is the case here, that right of review may not even belong to the individuals whose personal information actually appears in the requested record. In the present case, only Heinz has the right to apply for a review, notwithstanding that the personal information contained in the record actually belongs to its employees.

  108. Deschamps J.’s interpretation of s. 44 does not result in better or fairer protection for individuals’ personal information. Cases such as these will be limited in number. The large majority of individuals whose personal information is vulnerable will not benefit. Moreover, although I have concluded that a third party cannot raise the s. 19 exemption for personal information on a s. 44 review, I do not exclude the possibility of judicial review pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7. Indeed, where the government institution acts without or beyond its jurisdiction, it remains open to a party directly affected by the decision to bring an application for judicial review pursuant to s. 18.1 of the Federal Courts Act.

    6. The Possibility of Bringing a Judicial Review Application Pursuant to the Federal Courts Act

    6.1 Whether Judicial Review is Available Under the Federal Courts Act

  109. Once a third party has received notice of the government institution’s intended decision to disclose a record that may contain personal information, it may consider bringing an application for judicial review under the Federal Courts Act. Section 18.1(1) and (2) of that Act provides:

    18.1

    (1)

    An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

    (2)

    An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

  110. “Federal board, commission or other tribunal” is very broadly defined in s. 2(1) of the Federal Courts Act, and means

    any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; ....

  111. Pursuant to ss. 4, 7, and 10 of the Access Act, the government institution is under a duty to disclose all requested information that does not fall within one of the statutory exemptions listed in ss. 13 to 24 and 26 of that Act. The government institution thus exercises powers conferred by an Act of Parliament and falls within the meaning of “federal board, commission or other tribunal”. Pursuant to s. 28(1)(b) of the Access Act, the government institution must provide notice to the third party whose confidential business information was initially believed to appear in the requested record of its decision concerning the disclosure of the record. That decision constitutes a decision of a federal board, commission or other tribunal within the meaning of the Federal Courts Act and is potentially reviewable. This is consistent with what Le Dain J. stated on behalf of a unanimous Court in R. v Miller, [1985] 2 S.C.R. 613, at pp. 623-24:

    It is, of course, clear since the decision of this Court in Martineau v Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, that certiorari is not confined to decisions required to be made on a judicial or quasi‑judicial basis, but that it applies, in the words of Dickson J., as he then was, at pp. 622‑23, “wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.”

  112. Section 19 of the Access Act constitutes a mandatory exemption from disclosure for all personal information that does not fall into one of the stated exceptions. Although s. 8(2)(m)(i) of thePrivacy Act allows the government institution to disclose personal information where it is deemed necessary in the public interest, that provision has not been invoked in the present case. As such, any decision to disclose a record containing information falling within s. 19 of the Access Act is clearly not authorized by the statute. Such a decision would be ultra vires, and would constitute a jurisdictional error pursuant to s. 18.1(4)(a) of the Federal Courts Act, which provides that:

    18.1

    ....

    (4)

    The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

    (a)

    acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

    ....

  113. As a result, it would be open to the third party to seek an order prohibiting the government institution from disclosing the record containing personal information (s. 18.1(3)(b)).

  114. I have thus concluded that the decision of the government institution to disclose the requested record is reviewable for jurisdictional error, and that the remedy of prohibition is available under theFederal Courts Act. Section 18.5 provides an exception to s. 18.1, where a right of appeal is available from the decision of the federal board, commission or other tribunal. Such is not the case here.

  115. Nonetheless, a judge, on judicial review, may exercise his or her discretion so as to refuse to grant a remedy where an adequate alternative remedy exists. Dickson C.J. explained in Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at p. 96, that:

    It may well be that once the alternative remedy is found to be adequate discretionary relief is barred, but this is nothing but a reflection of a judicial concern to exercise discretion in a consistent and principled manner. Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant to the inquiry into adequacy. [Cited in Canadian Pacific Ltd. v Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 36.]

    In determining whether to require the applicant to utilize a statutory appeal procedure provided in the legislation, the Court in Canadian Pacific, at para. 37, identified the following factors as relevant: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision‑making and remedial capacities). The Court noted, however, that this list was not closed.

  116. The complaint process in the Privacy Act is convenient and accessible, and the expertise and investigatory role of the Privacy Commissioner are relevant considerations. The structure of the Act establishes clearly that the protection of privacy is meant to be the domain of the Privacy Commissioner who can receive complaints, investigate, and report its findings and recommendations to the relevant government institution. The scheme and purpose of the Act can be relevant considerations for a judge in determining whether or not to grant a remedy on judicial review: Canadian Pacific, at paras. 43‑46. Ultimately, however, the Privacy Commissioner has no decision‑making or remedial capacity. I have already concluded that s. 44 of the Access Act does not allow a third party to raise the s. 19 exemption for personal information. I also agree with the parties and with Deschamps J. that the Access Act provides no other avenue to prevent a government institution from disclosing a requested record.

  117. In the context of an application pursuant to s. 18 of the Federal Courts Act, I would conclude that the statutory scheme does not provide Heinz with an adequate alternative remedy. According to s. 29(1)(a) of the Privacy Act, the complaint process is generally initiated after an individual’s personal information has been “used or disclosed” contrary to the Privacy Act. Thus, the purported adequate alternative remedy may not even be available prior to the actual disclosure. Moreover, the remedy sought by Heinz in this case, that the information not be disclosed, is simply not available pursuant to the existing scheme. The Attorney General asks this Court to substitute judicial review prior to disclosure with an administrative investigation following disclosure and resulting in non‑binding recommendations. In Bristol-Myers Squibb Co. v Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26, at para. 83, I found, in dissent, that “an application for judicial review was the sole procedural means available to [the appellant] in order to quash the Minister’s decision”. The special statutory regime created by the Patented Medicines (Notice of Compliance) Regulations, SOR/93‑133, did not provide for the quashing of a notice of compliance, although it did provide for an order of prohibition pursuant to a statutory right of action. However, that cause of action was not open to the appellant in that case. Thus, the appellant was without a remedy. The same reasoning applies here.

  118. Ultimately, the discretion to grant or refuse a remedy pursuant to ss. 18 and 18.1 of the Federal Courts Act rests with the Federal Court judge hearing the judicial review application. That judge will only decline to exercise his jurisdiction pursuant to the Federal Courts Act if he or she is satisfied that the statutory scheme provides an adequate alternative remedy. In a case similar to this, where the third party is attempting to protect personal information belonging to its employees, the judge would also have to decide whether the third party has standing to bring the application. This is because, according to s. 18.1, an application for judicial review may be brought by anyone “directly affected” by the matter in respect of which relief is sought.

    6.2 Whether this Review Should Simply Be Allowed to Proceed under Section 44 of the Access Act for Reasons of Efficiency and Convenience

  119. Deschamps J. expresses concern that forcing a party to split its complaint into two parallel proceedings might be an unwarranted use of resources. That concern is best left to Parliament to address, if it so chooses. Given the structure of the statutory scheme, I have concluded that a third party cannot raise a s. 19 exemption on a s. 44 review. I further conclude that there are valid reasons for refusing to collapse a s. 18.1 review within a s. 44 review.

  120. There are critical differences between a s. 44 review and a s. 18.1 judicial review. Firstly, the Federal Court has held that a s. 44 review is a hearing de novo, whereas a s. 18.1 review requires the use of the pragmatic and functional approach to determine whether deference is owed to the decision of the government institution to disclose the record: Aliments Prince Foods Inc. v Canada (Ministre de l'Agriculture et Agroalimentaire) (2001), 272 N.R. 184 (F.C.A.), at para. 7. Secondly, s. 44 grants a right of review to third parties who have received notice under ss. 28(1)(b) or 29(1) of the Access Act. No other requirement exists. By contrast, s. 18.1 of the Federal Courts Act requires that the applicant have standing to bring the application for review. Finally, where the court, on a s. 44 review, determines that the government institution is required to refuse disclosure, s. 51 of the Access Act states that the court shall order the head of the institution not to disclose the record or to make such other order as the court deems appropriate. The remedies available under s. 18(3) of the Federal Courts Act are somewhat different. Most importantly, they are discretionary in nature.

  121. I would also note that there is nothing to prevent a Federal Court judge from proceeding with both applications at the same time or consecutively, thereby addressing Deschamps J.’s concerns about unwarranted use of resources.

    7. Conclusion

  122. Only those third parties who are given notice pursuant to ss. 28(1)(b) or 29(1) of the Access Act of the government institution’s decision to disclose the record will be in a position to seek a judicial review prohibiting the disclosure. This is because only such parties will usually have notice of the decision prior to disclosure. Presumably, judicial review will be of limited use to a third party after the record has been disclosed insofar as the damage to privacy will already have occurred. In such situations, the third party retains the option of laying a complaint with the Privacy Commissioner, as discussed above, who can report his findings and recommendations to the institution where warranted.

  123. This inequality is a necessary result of the statutory scheme, which only provides notice prior to the actual disclosure in the circumstances outlined in ss. 27, 28 and 29 of the Access Act. In interpreting s. 44 of the Access Act, I concluded that it was necessary to respect the integrity of the complaint and investigation process contained in s. 29 of the Privacy Act, in order to give effect to legislative intent. Nonetheless, without providing an adequate alternative remedy, and without any privative clause whatsoever, the Access Act cannot oust the possibility of judicial review pursuant to the Federal Courts Act.

  124. For these reasons, I would allow the appeal, set aside the decision of the Federal Court of Appeal, and award costs in all courts to the appellant.

    A P P E N D I X

    RELEVANT STATUTORY PROVISIONS

    Access to Information Act, R.S.C. 1985, c. A-1

    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.

    3.

    In this Act,

    ....

    “third party”, in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution.

    ....

    19.

     

    (1)

    Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

    (2)

    The head of a government institution may disclose any record requested under this Act that contains personal information if

    (a)

    the individual to whom it relates consents to the disclosure;

    (b)

    the information is publicly available; or

    (c)

    the disclosure is in accordance with section 8 of the Privacy Act.

    20.

    (1)

    Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

    (a)

    trade secrets of a third party;

    (b)

    financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

    (c)

    information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

    (d)

    information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

    (2)

    The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.

    (3)

    Where the head of a government institution discloses a record requested under this Act, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests.

    (4)

    For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing.

    (5)

    The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.

    (6)

    The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.

    ....

    27.

     

    (1)

    Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain

    (a)

    trade secrets of a third party,

    (b)

    information described in paragraph 20(1)(b) that was supplied by a third party, or

    (c)

    information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,

    the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.

    (2)

    Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.

    (3)

    A notice given under subsection (1) shall include

    (a)

    a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);

    (b)

    a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and

    (c)

    a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.

    (4)

    The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Act where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9.

    28.

    (1)

    Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,

    (a)

    the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and

    (b)

    the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.

    (2)

    Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally.

    (3)

    A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Act or a part thereof shall include

    (a)

    a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and

    (b)

    a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.

    (4)

    Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.

    29.

    (1)

    Where the head of a government institution decides, on the recommendation of the Information Commissioner made pursuant to subsection 37(1), to disclose a record requested under this Act or a part thereof, the head of the institution shall give written notice of the decision to

    (a)

    the person who requested access to the record; and

    (b)

    any third party that the head of the institution has notified under subsection 27(1) in respect of the request or would have notified under that subsection if the head of the institution had at the time of the request intended to disclose the record or part thereof.

    (2)

    A notice given under subsection (1) shall include

    (a)

    a statement that any third party referred to in paragraph (1)(b) is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and

    (b)

    a statement that the person who requested access to the record will be given access thereto unless, within twenty days after the notice is given, a review of the decision is requested under section 44.

    ....

    44.

     

    (1)

    Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.

    (2)

    The head of a government institution who has given notice under paragraph 28(1)(b) or subsection 29(1) that a record requested under this Act or a part thereof will be disclosed shall forthwith on being given notice of an application made under subsection (1) in respect of the disclosure give written notice of the application to the person who requested access to the record.

    (3)

    Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review.

    ....

    51.

     

    Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.

    Privacy Act, R.S.C. 1985, c. P-21

    3.

    In this Act,

    ....

    “personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

    (a)

    information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,

    (b)

    information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

    (c)

    any identifying number, symbol or other particular assigned to the individual,

    (d)

    the address, fingerprints or blood type of the individual,

    (e)

    the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,

    (f)

    correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,

    (g)

    the views or opinions of another individual about the individual,

    (h)

    the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and

    (i)

    the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

    but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include

    (j)

    information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,

    (i)

    the fact that the individual is or was an officer or employee of the government institution,

    (ii)

    the title, business address and telephone number of the individual,

    (iii)

    the classification, salary range and responsibilities of the position held by the individual,

    (iv)

    the name of the individual on a document prepared by the individual in the course of employment, and

    (v)

    the personal opinions or views of the individual given in the course of employment,

    (k)

    information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,

    (l)

    information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and

    (m)

    information about an individual who has been dead for more than twenty years;

    ....

    ....

    8.

     

    (1)

    Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

    (2)

    Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

    (m)

    for any purpose where, in the opinion of the head of the institution,

    (i)

    the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or

    (ii)

    disclosure would clearly benefit the individual to whom the information relates.

    ....

    (5)

     

    The head of a government institution shall notify the Privacy Commissioner in writing of any disclosure of personal information under paragraph (2)(m) prior to the disclosure where reasonably practicable or in any other case forthwith on the disclosure, and the Privacy Commissioner may, if the Commissioner deems it appropriate, notify the individual to whom the information relates of the disclosure.

    Federal Courts Act, R.S.C. 1985, c. F-7

    18.

    (1)

    Subject to section 28, the Federal Court has exclusive original jurisdiction

    (a)

    to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

    (b)

    to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

    ....

    (3)

     

    The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

    18.1

    (1)

    An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

    (2)

    An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

    (3)

    On an application for judicial review, the Federal Court may

    (a)

    order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

    (b)

    declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

    (4)

    The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

    (a)

    acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

    (b)

    failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

    (c)

    erred in law in making a decision or an order, whether or not the error appears on the face of the record;

    (d)

    based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

    (e)

    acted, or failed to act, by reason of fraud or perjured evidence; or

    (f)

    acted in any other way that was contrary to law.

    (5)

    If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may

    (a)

    refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and

    (b)

    in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.


Representations

Christopher Rupar (Deputy Attorney General of Canada, Ottawa), for the appellant.

Nicholas McHaffie and Craig Collins‑Williams (m/s Stikeman Elliott, Ottawa), for the respondent.

Raynold Langlois, Q.C., and Daniel Brunet (m/s Langlois Kronström Desjardins, Montréal), for the intervener.


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