Lavigne v. Canada ( Office of the Commissioner of Official Languages ), [1999] 1 F.C. D-66


Lavigne v. Canada ( Office of the Commissioner of Official Languages )

T-909-97

Dubé J.

16/10/98

17 pp.

Application for judicial review of Commissioner of Official Languages' refusal to disclose certain interview notes from investigation files requested by applicant under Privacy Act-Applicant alleged had been forced to use French language at work when employed in Montréal office of Department of Health and Welfare-Filed four complaints with Office of Commissioner of Official Languages (OCOL)-OCOL concluded applicant's four complaints well founded and submitted recommendations to Department who agreed to implement them-Applicant applied to Federal Court for remedy and obtained judgment in Trial Division for $3,000 in damages and order Department write letter of apology to applicant-Appeal to F.C.A. with reference to quantum of damages pending-In course of review before Trial Judge, Department filed affidavits of regional co-ordinator of official languages, district manager, Montréal office and unit chief, immediate supervisor of applicant-Applicant launched present application to obtain information contained in notes taken by OCOL's investigators in course of these interviews-Applicant was given part of interviews and now attempting to obtain remainder of requested material-Issues whether information requested by applicant "personal information" as defined by Privacy Act; whether non-personal information not disclosed to applicant properly severed in accordance with Privacy Act; whether "personal information" requested by applicant and not disclosed to him properly exempted under Act, s. 22(1)(b) or any other applicable exemptions; impact of Official Languages Act, ss. 60, 72, 73 and 74 upon applicant's request for information-Applicant submitting entitled to requested information as "personal information" under Privacy Act, s. 3; that interest of disclosure outweighing any possible injury to respondent's investigations-OCOL submitting respondent has no obligation to disclose information not constituting "personal information"; that information not disclosed exempted under Privacy Act, s. 22(1)(b) on basis disclosure would be injurious to enforcement of Official Languages Act; that respondent abiding by provisions of Official Languages Act, ss. 60, 72, 73, 74 dealing with confidentiality; that confidentiality provisions of Official Languages Act in place to secure cooperation of all witnesses, cooperation being essential to conduct of investigations; that as assurances of confidentiality having been given to witnesses herein, disclosure now would be betraying commitment made to those people-Intervener Privacy Commissioner came out in support of applicant, taking position Privacy Act, s. 22(1)(b) not applying to restrict applicant's access to his "personal information"; that OCOL has failed to satisfy onus of demonstrating that "personal information" requested by applicant could reasonably be expected to cause probable harm to its investigations; that promises of confidentiality, instead of facilitating cooperation of witnesses, diminish truthfulness-Application allowed-Privacy Act, s. 2 stating clearly purpose of Act both to protect privacy of individuals with respect to information about themselves, and to provide them with right of access to that information-Complementing Access to Information Act which extends present laws of Canada to provide right of access to governmental information with principles that it should be available to public and that necessary exceptions to right of access should be limited and specific-Disclosure is rule; exemption is exception-Exemption invoked herein falling under Privacy Act, s. 22(1)(b) to effect release of information will be injurious to conduct of lawful investigations-In Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.), F.C.A. made it clear that decision that representations made in course of investigation, during as well as subsequent to it, may be released if statute requires or allows it-In Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 4 Admin. L.R. (3d) 96 (F.C.T.D.), Trial Judge concluded with respect to reasonable expectation of probable harm that one cannot refuse to disclose information under Access to Information Act, s. 16(1)(c) or Privacy Act, s. 22(1)(b) on basis that to disclose would have chilling effect on possible future investigations-Applicant herein entitled to receive personal information-Information not exempt from disclosure under Privacy Act, s. 22(1)(b)-Respondent has not established reasonable expectation of probable harm to conduct of its investigation from such disclosure-Witnesses to investigations ought to be informed in advance that their testimony about individual may be disclosed to him-They will be very careful what they say-Proper circumspection will protect integrity of investigative process and right of individual concerned to be fully informed of case against him-Promises of confidentiality not essential as respondent has power to issue subpoenas, if necessary-"Personal information" to which applicant entitled defined under Privacy Act, s. 3: information about himself that is recorded in any form and includes views or opinions of other individuals about him-Privacy Act, R.S.C., 1985, c. P-21, ss. 3, 22(1)(b)-Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 60, 72, 73, 74-Access to Information Act, R.S.C., 1985, c. A-1.

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