Judgments

[1996] 1 F.C. 268

T-1284-92

Canadian Jewish Congress (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Canadian Jewish Congress v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Heald D.J. — Toronto, August 30 and 31; Ottawa, October 4, 1995.

Access to information — Application under Access to Information Act, s. 41 to review Minister’s denial of request for release of records on immigration status of former Nazi collaborator — Documents contained in main record, secret record — Whether requested information “personal information” under Act, s. 19(1) — Under s. 49, Court must first determine head of institution not authorized to refuse disclosure, then decide on appropriate remedy — Minister admitting error in law in deciding main record exempt from disclosure under s. 19(2) — Mandatory, discretionary exemptions distinguished — S. 19(2) setting out discretionary exemption from disclosure — Information request as to main record referred back to Minister for redetermination by different delegate — Decision to refuse disclosure of documents in secret record upheld.

Practice — Privilege — Access to Information Act, s. 23 allowing head of institution to refuse disclosure of information subject to solicitor-client privilege — Meaning, scope of privilege — S. 23 discretionary exemption provision — Applicability of s. 25: severance provision — Nearly all documents in secret record subject to solicitor-client privilege — Minister properly exercising discretion in refusing disclosure of documents on basis of solicitor-client privilege.

This was an application under section 41 of the Access to Information Act to review the respondent’s decision denying the applicant’s request for the release of all records relating to the immigration status of Vladimir Sokolov, a Nazi collaborator who had fled to Canada from the United States when facing deportation. In January 1992, a representative of the applicant wrote to an official of the respondent’s department requesting information as to Mr. Sokolov’s current immigration status; the official replied that the entire file came within the “personal information” exemption set out in subsection 19(1) of the Act and could not be disclosed pursuant to the exceptions set out in subsection 19(2). The Information Commissioner concurred in the respondent’s refusal to release the information requested. Meanwhile, it became apparent that the immigration official’s review of Mr. Sokolov’s file, in January and February of 1992, did not include certain “secret records” then in existence. Subsequently, pursuant to the orders of Gibson J. and Jerome A.C.J., applicant’s counsel was given access to all of the secret record, except those documents that the respondent claimed are subject to solicitor-client privilege. The respondent conceded that the Senior Public Rights Administrator erred in the exercise of her discretion in deciding that the main record was exempt from disclosure under subsection 19(2) of the Act. Two main issues were raised. The first issue concerned the main record: given the respondent’s admission, should the applicant’s request be referred back to the respondent to be redetermined by a different delegate of the Minister, or should the Court make a determination as to what portion of the main record is exempt from disclosure? The second issue concerned the secret record: did the respondent Minister err in deciding that the secret record was exempt from disclosure? If so, what is the appropriate remedy?

Held, the application should be allowed in part.

1) Before the Court acquires jurisdiction to make any order under section 49 of the Act, it must first determine that the head of the institution was not authorized to refuse disclosure. It is only once this determination is made that the Court must then decide what is an appropriate remedy. It is the usual course in these cases for the Court to review the disputed record, document by document if necessary, to determine whether the head of the institution was authorized to refuse disclosure. Taking into account the respondent’s concession, it may be said that the head of the institution was not authorized to refuse to disclose the record or part thereof. Among the exemptions contained in the Act, some are mandatory, others discretionary. If the exemption provision is mandatory, there is only one type of decision: the factual decision as to whether the material comes within the description of the exempting provision. If the exemption provision is discretionary, there are two decisions to be reviewed by the Court. First, as in the case of a mandatory exemption, the Court shall review the record to determine whether the head of the institution erred in the factual decision as to whether or not the requested information fell within the exempting provision. If the material does fall within the exemption, the Court must review the discretionary decision of the head of the institution and consider whether or not the discretion was properly exercised, but should not itself attempt to exercise the discretion de novo. It is appropriate, once it has been determined that discretion has been improperly exercised, to order that the matter be referred back to the head of the institution to exercise his discretion properly. Under subsection 19(1) of the Act, if the record contains personal information, as defined in section 3 of the Privacy Act, the head of the institution shall refuse to disclose the record. However, that provision is subject to subsection 19(2) which provides that if the personal information falls within one of the three exceptions listed in paragraphs 19(2)(a), (b), (c), the head of the institution may disclose the record. The onus is on the party claiming an exception pursuant to subsection 19(2) to establish that exception. By using the word “may” rather than “shall” in subsection 19(2), Parliament intended this provision to operate as a discretionary exemption as opposed to a mandatory exemption. Since the respondent has conceded that the Minister erred in the exercise of his discretion under that subsection, it was unnecessary for the Court to review the discretionary decision. The information request with respect to the main record should be referred back to the respondent to be redetermined by a different delegate of the Minister.

2) The respondent refused to disclose most of the secret record, claiming it was exempt from disclosure under sections 19 and 23 of the Act. Of the 174 pages contained in the secret record, only eight were disclosed to the applicant. One ground relied upon by the respondent for refusing to disclose the secret record is section 23 of the Act which allows the head of the institution to refuse to disclose any record that contains information subject to solicitor-client privilege. This section provides a discretionary exemption as the head of a government institution may refuse to disclose the information. To engage solicitor-client privilege, it must be shown that the communication or document was made confidentially for the purpose of legal advice. All communications between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance fall under the protection of the solicitor-client privilege. It is within that framework that the Court has reviewed the documents in the secret record to determine whether the Minister erred in concluding that they were properly subject to solicitor-client privilege. In doing so, the Court had also to consider the applicability of section 25 of the Act which obliges the head of the institution to disclose any part of the record not containing information that he is authorized to refuse to disclose, if that part of the record can reasonably be severed. Where the Court determines that solicitor-client privilege is applicable, it will be infrequent that section 25 should apply to sever part of the record, making it releasable. If the Minister exercises his discretion by invoking solicitor-client privilege to refuse disclosure of the information, that would not be an improper exercise of discretion. Nearly all documents in the secret record were subject to solicitor-client privilege. The small number of pages not so protected were irrelevant to the applicant’s request for information and the Minister’s refusal to disclose them could be upheld on that basis. Nearly all documents said to contain personal information did contain such information and were prima facie exempt from disclosure pursuant to subsection 19(1) of the Act.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 4(1), 6, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 41, 44, 46, 48, 49.

Privacy Act, R.S.C., 1985, c. P-21, ss. 3 “personal information”, 7, 8, 12, 26, 41.

CASES JUDICIALLY CONSIDERED

APPLIED:

Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54 (F.C.T.D.); Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27; [1969] C.T.C. 353; (1969), 69 DTC 5278; International Minerals& Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1991), 89 Sask. R. 1; 47 C.C.L.I. 196 (Q.B.).

NOT FOLLOWED:

Information Commissioner (Canada) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (1986), 11 C.P.R. (3d) 81; 5 F.T.R. 287 (T.D.); Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325 (Abridged); (1991), 36 C.P.R. (3d) 289; 41 F.T.R. 202 (T.D.).

CONSIDERED:

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.); X v. Canada (Minister of National Defence), [1992] 1 F.C. 77 (1991), 46 F.T.R. 206 (T.D.); Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527 (1994), 115 D.L.R. (4th) 265; 77 F.T.R. 241 (T.D.); Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (1988), 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), T-426-95, Rouleau J. order dated 23/6/95 (F.C.T.D.); Weiler v. Canada (Department of Justice), [1991] 3 F.C. 617 (1991), 37 C.P.R. (3d) 1; 46 F.T.R. 163 (T.D.); Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 362 (T.D.) (QL); Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266 (F.C.T.D.).

REFERRED TO:

Perez Bramalea Ltd. v. Canada (National Capital Commission), [1995] F.C.J. No. 63 (T.D.) (QL); Wells v. Canada (Minister of Transport), [1995] F.C.J. No. 822 (T.D.) (QL).

APPLICATION under section 41 of the Access to Information Act to review respondent’s decision denying a request for the release of all records relating to the immigration status of a Nazi collaborator who had fled to Canada to avoid deportation from the United States. Application allowed in part.

COUNSEL:

Mark C. Katz for applicant.

A. Leena Jaakkimainen and Donald A. Macintosh for respondent.

SOLICITORS:

Blake, Cassels & Graydon, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Heald D.J.: This is an application pursuant to section 41 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Act), for a review of the decision of the respondent Minister which denied the applicant’s request for the release of all records in the Minister’s control relating to the immigration status of Vladimir Sokolov as of January 15, 1992 (the date of the request).[1]

I.          BACKGROUND FACTS

Vladimir Sokolov was born in Russia in 1913. He became a citizen of the United States in 1957. On June 4, 1986, he was ordered denaturalized by a justice of the U.S. District Court because he had concealed his wartime activities as a Nazi collaborator when he applied for a U.S. visa in 1951 and again in 1957, when he applied for U.S. citizenship.

On May 16, 1988, his petition for certiorari was denied by the Supreme Court of the United States. The U.S. Government immediately filed deportation proceedings against him. Mr. Sokolov’s deportation hearing was scheduled to take place in July of 1988, however he failed to appear at this hearing. His whereabouts remained unknown until the Canadian media reported on January 9, 1988, that he had entered Canada and had applied for Convention refugee status at Montréal. The indication was that Mr. Sokolov’s case would be treated as part of the normal refugee backlog and that considerable time would elapse before his refugee claim could be considered.

On January 15, 1992, a representative of the applicant wrote to an official of the respondent’s department requesting information as to Mr. Sokolov’s current immigration status. Ms. Kathy Wesley, Senior Public Rights Administrator with Employment and Immigration Canada (EIC), advised the applicant that after an examination of Mr. Sokolov’s immigration file, she had decided that the entire file came within the “personal information” exemption set out in subsection 19(1) of the Act and could not be disclosed pursuant to the exceptions set out in subsection 19(2).[2]

The applicant then complained to the Information Commissioner regarding the Minister’s refusal to release the information requested. By letter dated April 16, 1992, the Information Commissioner concurred in the Minister’s refusal. The applicant then filed this application for judicial review on June 1, 1992.

On June 2, 1993, Justice Cullen ordered that the applicant’s counsel be given access to Mr. Sokolov’s immigration file in the respondent Minister’s department for the purpose of preparing submissions to be made in this application for judicial review. It was clearly a term and condition of Justice Cullen’s order that the applicant’s counsel give an undertaking to not divulge the information obtained from that access to anyone, including his client.

Meanwhile, it became apparent that Ms. Wesley’s review of the file, in January and February of 1992, did not include a review of certain “secret records” in existence at that time. On January 21, 1994, Justice Gibson ordered that the Minister review these records within the terms of the original request and these records be made available to the applicant’s counsel, for the purpose of making argument in this review. Pursuant to this order, Mr. E. W. Aumand, the Access to Information and Privacy Coordinator of Citizenship and Immigration Canada, reviewed the secret record and disclosed only eight pages to the applicant. In a letter to the applicant, dated February 18, 1994, Mr. Aumand stated the reasons for his refusing to disclose the remainder of the secret record as being subsection 19(1) of the Act (personal information) and section 23 of the Act (solicitor-client privilege).[3] In a second letter to the applicant, dated March 28, 1994, Mr. Aumand stated additional reasons for his refusal to disclose, being paragraph 13(1)(a) (confidential information from a foreign state or institution) and subsection 15(1) (international affairs) of the Act.[4]

On March 10, 1995, the Associate Chief Justice varied the January 21, 1994, order of Justice Gibson to permit the respondent to exempt from disclosure to the applicant’s counsel those documents that the respondent claimed were subject to solicitor-client privilege. Thus, pursuant to the orders of Justice Gibson and the Associate Chief Justice, the applicant’s counsel has been given access to all of the secret record, except those documents that the respondent claims are subject to solicitor-client privilege.

For simplicity, the main immigration file, not including the secret file, shall be referred to as the main record and the secret file shall be referred to as the secret record.

II.         ISSUES

The applicant states the issue herein as whether the respondent Minister improperly exercised his discretion in deciding that the main record and secret record are exempt from disclosure pursuant to either sections 19, 13, 15 or 23 of the Access to Information Act. The respondent accepts that characterization.

The respondent concedes, on this record, that Ms. Wesley, the Senior Public Rights Administrator, erred in the exercise of her discretion in deciding the main record was exempt from disclosure pursuant to subsection 19(2) of the Act.[5] Furthermore, the respondent concedes, on this record, that sections 13 and 15 of the Act have no application to the secret record.[6] However, the respondent further submits that the Access to Information and Privacy Coordinator properly exercised his discretion in February of 1994 when he decided the secret record was exempt from disclosure pursuant to sections 19 and 23 of the Act.

Accordingly, I would summarize the issues between the parties as follows:

Issue 1: The Main Record

As the respondent has conceded that the Minister, acting through the Senior Public Rights Administrator, erred in deciding the main record was exempt from disclosure in its entirety, should the applicant’s request be referred back to the respondent to be redetermined by a different delegate of the Minister, or should this Court make a determination as to what portion of the main record, if any, is exempt from disclosure?

Issue 2: The Secret Record

Did the respondent Minister, acting through the Access to Information and Privacy Coordinator, Citizenship and Immigration Canada, err in deciding the secret record was exempt from disclosure? If so, what is the appropriate remedy?

III.        ANALYSIS

Issue 1: The Main Record

As the respondent has conceded that the Minister, acting through the Senior Public Rights Administrator, erred in deciding the main record was exempt from disclosure in its entirety, should the applicant’s request be referred back to the respondent to be redetermined by a different delegate of the Minister, or should this Court make a determination as to what portion of the main record, if any, is exempt from disclosure?

This application was brought under section 41 of the Access to Information Act, set out above, which provides for a review by this Court of a decision to refuse access to a record requested under this Act. Section 49 of the Act gives this Court jurisdiction to make an appropriate order to remedy the situation, if the Court has determined that the head of the institution was not authorized in refusing access to the record.[7]

A.        REMEDIES AVAILABLE UNDER SECTION 49 OF THE ACT

Pursuant to section 49 of the Act, if the Court has determined that the head of the institution, in this case, the Minister of Employment and Immigration, was not authorized to refuse to disclose the record or part thereof, then the Court shall make an order to either disclose the information, subject to any conditions the Court deems appropriate, or any other order the Court deems appropriate. It is my interpretation of this provision, that before the Court acquires jurisdiction to make any order under this section, it must first determine that the head of the institution was not authorized to refuse disclosure. It is only once this determination is made that the Court must then decide what is an appropriate remedy in the circumstances.

It is the usual course in these cases for the Court to review the disputed record, document by document if necessary, to determine if the head of the institution was authorized in refusing disclosure.[8] The Court is given the authority to conduct such an examination under section 46 of the Act.[9] This approach has been followed by the Federal Court in numerous decisions relating to applications brought under sections 41 and 44 of the Act[10]: Air Atonabee, supra;[11] X. v. Canada (Minister of National Defence);[12] Perez Bramalea Ltd. v. Canada (National Capital Commission);[13] Wells v. Canada (Minister of Transport);[14] Sutherland v. Canada (Minister of Indian and Northern Affairs);[15] Terry v. Canada (Minister of National Defence).[16]

The case at bar has been somewhat simplified by the concession that the Minister, acting through Ms. Wesley, the Senior Public Rights Administrator, erred in law in the exercise of his discretion in deciding that the entire main record was exempt from disclosure under subsection 19(2) of the Act.[17] Restating this in terms corresponding to those used in section 49 of the Act, it may therefore be said that the head of the institution was not authorized to refuse to disclose the record or part thereof.

As Ms. Wesley erred in the exercise of her discretion when deciding to refuse disclosure of the entire main record, it follows that had the discretion been properly exercised, the Minister would have disclosed at least part of the record. Thus, it has been conceded that, at least with respect to part of the record, the Minister was not authorized to refuse disclosure. Accordingly, I do not have to review the main record to satisfy the first part of section 49, i.e. to determine if the Minister was not authorized to refuse to disclose the record or a part thereof, as this point has been conceded.

As the first part of section 49 is satisfied, I have now acquired jurisdiction to make an order under this section. There are essentially three types of orders the Court may make pursuant to section 49: (1) an order that the Minister disclose the record or part thereof; (2) an order that the Minister disclose the record or a part thereof, subject to any conditions the Court deems appropriate: or (3) any such other order the Court deems appropriate. The type of order made pursuant to section 49 will depend upon the nature of the exemption sought.

There are thirteen sections in the Act, sections 13 to 26 inclusive with the exception of section 25, that set out circumstances in which information is exempt from disclosure. Some of the exemptions are mandatory, meaning if the information requested falls within the description set out in the exempting provision, then the head of the institution shall refuse to disclose the said information. However, some of the exemptions are discretionary, meaning if the information requested falls within the description set out in the exempting provision, the head of the institution may nevertheless disclose the information, or may nevertheless refuse to disclose the information, in the case of an exception to an exemption provision.

Justice Strayer discussed the approach to be taken with respect to a discretionary exemption to disclosure of information, in Kelly v. Canada (Solicitor General).[18] That case dealt with an application under section 41 of the Privacy Act [R.S.C., 1985, c. P-21] as opposed to section 41 of the Access to Information Act.[19] These two provisions are essentially identical, except that section 41 of the Privacy Act applies to requests for information made under section 12 of the Privacy Act and section 41 of the Access to Information Act applies to requests for information made under the Access to Information Act. In his decision, Justice Strayer’s discussion was in relation to exemption provisions set out in the Privacy Act, but again they operate essentially the same as those under the Access to Information Act, and accordingly Justice Strayer’s discussion is relevant to the case at bar.

Justice Strayer stated at page 158 the following in regards to discretionary exemption provisions:

It will be seen that these exemptions require two decisions by the head of an institution: first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.

The first type of factual decision is one which, I believe, the court can review and in respect of which it can substitute its own conclusion. This is subject to the need, I believe, for a measure of deference to the decisions of those whose institutional responsibilities put them in a better position to judge the matter....

The second type of decision is purely discretionary. In my view, in reviewing such a decision, the court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.[20]

If the exemption provision was mandatory, then there is only one type of decision: the factual decision as to whether the material comes within the description of the exempting provision. There is no second type of decision, as if the material is found to fall within the description, then the head of the institution is obligated to refuse disclosure. If a decision made under a mandatory exemption provision were to come before this Court for review, as was discussed above, then firstly the Court would have to go through the record and determine whether or not the Minister was authorized to refuse disclosure. In so doing, the Court is effectually reviewing the factual decision. If the Court determined the Minister was in fact not authorized to refuse disclosure, then the Court would have to make an appropriate order. In the case of a mandatory exemption, an order for disclosure of the record would be an appropriate order if the Court determined the Minister had erred in the factual decision. The Act is clear in those cases that the material shall not be disclosed if falling within the exemption and the material shall be disclosed if it does not.[21]

If the exemption provision in question is a discretionary provision, then there are two decisions to be reviewed by the Court, as was stated above by Justice Strayer. Firstly, as in the case of a mandatory exemption, the Court shall review the record to determine if the head of the institution erred in the factual decision as to whether or not the requested information fell within the exempting provision. If the Court determines the material does fall within the exemption, then the Court must review the discretionary decision of the head of the institution. However, as was stated by Justice Strayer, the Court must only consider whether or not the discretion was properly exercised, but should not itself attempt to exercise the discretion de novo. If the Court finds the discretion was properly exercised, an appropriate order is simply to uphold the decision of the head of the institution to refuse disclosure. However, the determination of an appropriate order becomes somewhat more complicated if the Court finds the discretion was improperly exercised. If the Court strikes down the discretionary decision of the head of the institution, then the question arises as to whether it is appropriate for the Court to then proceed to make this discretionary decision, thereby exercising the discretion itself, or whether the Court ought to refer the matter back to the head of the institution to exercise his/her discretion properly.

It would seem that Justice Strayer does not advocate the Court exercising the discretion itself. Following his discussion of the factual and discretionary types of decisions, set out above, Justice Strayer stated the following:

In Rubin v. Canada (Mortgage & Housing Corp.), ((1988), [1989] 1 F.C. 265 32 Admin. L.R. 196, (sub nom. Rubin v. Can. Mortgage & Housing Corp. (President)) 86 N.R. 186, (sub nom. Rubin v. President of Can. Mortgage & Housing Corp.) 21 C.P.R. (3d) 1, 52 D.L.R. (4th) 671, at p. 191 [N.R.]) the Federal Court of Appeal, in exercising similar powers under s. 49 of the Access to Information Act held that this court can review the exercise of discretion by a head of an institution in refusing to disclose, to ensure that it is exercised “in accordance with recognized legal principles” and “in accord with the confirming statute.” Stress was put on the policy and object of the Access to Information Act whose “general rule is disclosure.” For reasons not directly pertinent to the present case the Court of Appeal did strike down the exercise of discretion in question there and referred the matter back to the C.M.H.C. for a proper exercise of discretion. (It will be noted that the court did not itself purport to exercise the discretion.)[22]

It should be noted that in the Rubin case referred to by Justice Strayer, both counsel had agreed that in the event of a finding of a reviewable error by the head of the institution, an appropriate remedy would be to refer the matter back to be re-examined and redetermined by the CMHC [Canada Mortgage and Housing Corp.], the original decision-making body.[23]

I do agree that it is appropriate, once it has been determined that discretion has been improperly exercised in a matter, to order the matter be referred back to the head of the institution to exercise his/her discretion properly. It is not appropriate for the Court to exercise the discretion. The mandate of the Court under section 41 of the Act is to review the decision of the head of institution.

The exemption provision relied upon in the case at bar is section 19 of the Act. Before proceeding with a determination of what is an appropriate order in this case, the operation of section 19 must first be examined to determine if it provides for a discretionary exemption or a mandatory exemption.

B.        SECTION 19: THE PERSONAL INFORMATION EXEMPTION

The exemption to disclosure of information provided for under section 19 of the Act applies if the material requested contains personal information. Subsection 19(1) states that if the record contains personal information, as defined in section 3 of the Privacy Act, then the head of the institution shall refuse to disclose the record.[24] Although this subsection may seem at first to set out a mandatory exemption, it is subject to subsection 19(2). Subsection 19(2) provides that if the personal information falls within one of the three exceptions listed in paragraphs 19(2)(a), (b) or (c), then the head of the institution may disclose the record. Accordingly, it follows that the exemption provided for by section 19 operates as a discretionary exemption in circumstances to which the exceptions in paragraphs 19(2)(a), (b) and (c) apply. A further discussion of this will follow later.

Justice Rothstein discussed in detail the operation of section 19 in the decision of Sutherland v. Canada (Minister of Indian and Northern Affairs).[25] The first step is to determine, whether, pursuant to subsection 19(1), the information requested is personal information. Subsection 19(1) does not contain a definition of “personal information”, but rather embodies the definition set out in section 3 of the Privacy Act. Section 3 of the Privacy Act contains 13 paragraphs. Paragraphs (a) through (i) further define the definition of “personal information”, which is broadly stated as being “information about an identifiable individual that is recorded in any form”. Paragraphs (j) through (m) provide exceptions to what is included in the definition of “personal information”, for the purposes of sections 7, 8 and 26 of the Privacy Act and section 19 of the Access to Information Act.

As section 48 of the Act clearly puts the onus on the party who is refusing to disclose information to establish that he/she is authorized to do so, the burden is thus on the respondent to establish that the information requested falls within the definition of “personal information” set out in section 3 of the Privacy Act .[26] Once that has been established, the onus shifts to the applicant to establish that one of the four exceptions set out in paragraphs 3(j) through 3(m) apply. Justice Rothstein in Sutherland, supra, stated at page 539:

Because the purpose of the Privacy Act is to protect the privacy of “personal information,” the general rule is that information about identifiable individuals is “personal information” and only if a specific exception applies, would such information not be “personal information.” It follows that a party wishing to demonstrate that information about an identifiable individual is not “personal information” must show that an exception applies.

In this case, the applicant has not relied on any of the exceptions set out in paragraphs 3(j) to (m).

If the respondent is successful in establishing that the information requested is personal information, and if the applicant has not established that the information is excepted from this definition, then pursuant to subsection 19(1), the Minister shall refuse to disclose the information. However, as was discussed above, subsection 19(1) is subject to subsection 19(2), which provides that notwithstanding the information may be personal information, the Minister may disclose the information if it falls within the exceptions set out in paragraphs 19(2)(a), (b) or (c). Again, I am of the view that the onus is on the party claiming an exception pursuant to subsection 19(2), to establish that exception.

The applicant submits that the information requested may be excepted from the section 19 exemption pursuant to both paragraphs 19(2)(b) and (c). Paragraph 19(2)(b) provides an exception if the personal information is publicly available. Paragraph 19(2)(c) provides an exception if the “disclosure is in accordance with section 8 of the Privacy Act”.[27]²⁷ Subsection 8(2) of the Privacy Act allows for disclosure of personal information if it falls within the description set out in one of the 13 paragraphs of 8(2)(a) through (m). In the case at bar, the applicant has submitted that the requested information falls under subparagraph 8(2)(m)(i), which allows disclosure if the head of the institution is of the opinion that “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure”.

If the applicant is successful in establishing that either or both of the exceptions set out in paragraphs 19(2)(b) and (c) apply, then, pursuant to subsection 19(2), the Minister may allow disclosure of the information. As was discussed above, it is my opinion that by using the word “may” rather than the word “shall”, Parliament intended this provision to operate as a discretionary exemption as opposed to a mandatory exemption.

However, Associate Chief Justice Jerome expressed a different opinion of the operation of section 19, which he enunciated in the decision of Information Commissioner (Canada) v. Canada (Minister of Employment and Immigration).[28] The Associate Chief Justice rejected counsel’s argument that subsection 19(2) provided the head of the institution with a discretion not to disclose the personal information even though the “conditions” of subsection 19(2) were met. Rather, he held that once the “conditions” were fulfilled “it becomes tantamount to an obligation upon the head of the government institution” to disclose the information.[29]

Justice Muldoon seemed to take a similar approach in the decision of Bland v. Canada (National Capital Commission).[30] That case also dealt with a review under section 41 of the Act, concerning a decision of the head of a governmental institution refusing to disclose information, on the basis of section 19 of the Act. Justice Muldoon decided that the information fell within the exception to the exemption set out in paragraph 19(2)(c), finding that the public interest in disclosure outweighed the privacy interest. He then proceeded to order disclosure of the information. Unfortunately, it is not clear as to whether Justice Muldoon ordered disclosure because he viewed subsection 19(2) as obliging the institutional head to disclose the information if one of the exceptions were satisfied, or whether he viewed subsection 19(2) as giving a discretion to the institutional head which he found had been improperly exercised in this case and then choosing to substitute the Court’s discretion therefor. However, with all due respect, I disagree with both of these rationales. For reasons to be discussed below, I do not agree with the Associate Chief Justice’s opinion that subsection 19(2) imposes an obligation to disclose the information. And, for reasons discussed supra, I do not believe it is the Court’s role to substitute its discretion in place of the institutional head.

I am unable to agree that once an exception is established, that it becomes “tantamount to an obligation” to disclose the information. Parliament chose to use the word “may” in subsection 19(2), a term which has been interpreted as imposing a discretion. Parliament used the word “shall” in various other provisions throughout the Act, a term which has been interpreted as imposing a mandatory obligation. If it were intended that subsection 19(2) operate so as to impose a mandatory obligation on the head of the institution to disclose the information, it is my opinion that the appropriate wording would have been employed.

This interpretation of subsection 19(2) has been enunciated by this Court in several decisions. Justice Rothstein in Sutherland, supra, stated at page 543:

If the “personal information” does fall under subsection 8(2) of the Privacy Act , the opening words of subsection 8(2) of the Privacy Act and paragraph 19(2)(c) of the Access to Information Act confer a discretion on the head of a government institution as to whether or not such information should be disclosed.[31]

Justice Rouleau also took the position that subsection 19(2) imposed a discretion not an obligation in the case of Terry, supra, wherein he stated the following, at page 270:

According to s. 19(2) of the Act, National Defence had the discretion to withhold information that contains personal information and that is exactly what it did.[32]

Justice Rouleau reiterated his interpretation of subsection 19(2) in the recent decision of Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services),[33] wherein he stated:

As I read section 19(2), there is no obligation imposed on the respondent to disclose information even if “the individual to whom it relates consents to the disclosure”.

Accordingly, I conclude that when properly interpreted, subsection 19(2) sets out a discretionary exemption from disclosure and not a mandatory exemption.

C.        APPROPRIATE ORDER

Having decided that subsection 19(2) provides a discretionary exemption, rather than a mandatory exemption, the question now arises as to what is an appropriate order in this case. As was discussed above, if the exemption provision is discretionary, then there are two decisions to be made: the factual decision and the discretionary decision. The view enunciated by Justice Strayer in Kelly, supra, with which I agree, is that with respect to the discretionary decision the Court ought only decide whether or not the discretion was properly exercised and not exercise the discretion de novo. In this case, the respondent has conceded that the Minister, acting through Ms. Wesley, erred in the exercise of his discretion under subsection 19(2). It is therefore unnecessary for the Court to review the discretionary decision.

The question now arises as to who is to exercise the discretion and make the decision as to whether or not the record or any part thereof ought to be disclosed. In these circumstances, I think it is appropriate that the matter be referred back to the head of the institution to be redetermined by a proper exercise of the discretion granted under subsection 19(2). The respondent has requested an order directing that the request for information of the applicant be redetermined by a different official within 30 days of the order of this Court. In my view, the suggested 30 day period is somewhat arbitrary.

Accordingly with respect to the main record, I order that the information request of the applicant, dated January 15, 1992, be referred back to the respondent for review and redetermination by a different delegate of the Minister, that review and redetermination to be made on an expedited basis.

Issue 2: The Secret Record

Did the respondent Minister, acting through the Access to Information and Privacy Coordinator, Citizenship and Immigration Canada, err in deciding the secret record was exempt from disclosure? If so, what is the appropriate remedy?

The respondent Minister, acting through Mr. E. W. Aumand, the Access to Information and Privacy Coordinator, refused to disclose most of the secret record, claiming it was exempt from disclosure under sections 23 and 19 of the Act. Of the 174 pages contained in the secret record, Mr. Aumand did disclose to the applicant eight pages. The respondent submits the Minister did not err in the exercise of his discretion by refusing disclosure of most of the secret record. The applicant, however, submits that the Minister improperly exercised his discretion in deciding the secret record was exempt from disclosure, on the basis of sections 19 and/or 23 of the Act.

As was discussed above, it is my interpretation of section 49 of the Act that before the Court acquires jurisdiction to make an order under this section, it must first determine that the Minister was not authorized to refuse disclosure of the record or part thereof. While the respondent made major concessions with respect to the main record, as discussed supra, the respondent has not conceded that the Minister lacked authorization to refuse to disclose the secret record or any part thereof. It is therefore necessary for the Court to review the contents of the secret record, taking into consideration the exemptions claimed, to determine whether or not the Minister was authorized in refusing disclosure. It is only when this determination has been made by the Court, that the Court acquires jurisdiction to order a remedy under section 49 of the Act.

Justice MacKay considered the role of the Court when conducting a review under the Act in the case of Air Atonabee, supra.[34] In that case the applicant brought an application under section 44 of the Act for a review of the decision of the Minister concerning a request for information under the Act. Justice MacKay stated the following with respect to a review by the Court:

That the court should undertake a review of the records in issue and determine what is exempt from disclosure and what is not, and further what information should be severed from exempt information and then released, may well be an onerous task in some cases. Nevertheless, it is consistent with the role which implicitly Parliament has established for the court under the Act. Three sections provide for application to the court for review: by the requester who is refused information (s. 41), by one who objects to the release of third party information (s. 44), and by the Information Commissioner when his recommendations for disclosure are not met (s. 42). The first two provide for “review of the matter” and the last for “review of any refusal to disclose a record requested”. Section 46 provides in the clearest terms that in proceedings arising from any of these applications “the Court may ... examine any record ... that is under the control of a government institution and no such record may be withheld from the court on any grounds”. Finally, the remedies available by order of the court imply detailed examination, if necessary record by record, by the court, both where there has been refusal to disclose a record on a statutorily specified ground when the court determines that “the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof” (s. 50), and where the court determines that the head of an institution who proposes disclosure “is required to refuse to disclose the record or part thereof” (s. 51) (emphasis added). The reference to parts of records obviously reflects the obligation on the head of the institution concerned under s. 25, where this can be reasonably done, to sever and disclose parts of records where those parts do not contain exempt information.

The role of the court, to conduct a “review of the matter” de novo, including examination document by document of the records proposed to be disclosed which the applicant third party seeks to have prohibited from disclosure, does not seem to have been thoroughly discussed previously, perhaps because it has been seen to be so obvious in previous cases that no issue was raised about it. That is, however, the role implicit in the statute, consistent with the purposes of the Act and one that the court has adopted in practice in previous cases arising under s. 44: (See e.g., Canada Packers Inc. v. Canada (Minister of Agriculture) et al., supra; Montana Band of Indians v. Canada (Minister of Indian Affairs and Northern Development) (1988), 18 F.T.R. 15 (F.C.T.D.); Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare), et al., supra). In light of the jurisprudence evolving in relation to the Act there can no longer be doubt that upon application for review, the court’s function is to consider the matter de novo including, if necessary, a detailed review of the records in issue document by document.[35]

Justice Denault reviewed the decision of a minister’s refusal to disclose information, pursuant to an application under section 41 of the Act, in the case of X, supra.[36] It would appear Justice Denault took the approach enunciated above in Air Atonabee, supra, as is indicated in the following passage:

As indicated previously, the respondents have provided one or more exemption provisions with respect to each record or severed portion thereof and have, through secret affidavits, attempted to explain and justify the rationale behind each exemption. I have considered each record, together with the explanation provided and have, based on the information before me, determined that the decision to withhold was properly made in all but one circumstance. Where I had doubt, I sought additional clarification from counsel for the respondents and I am satisfied that, but for records numbered 0616 and 0617, this application for review must be dismissed.[37] [Emphasis added.]

Before proceeding to conduct the document by document review of the secret record, it is first necessary to discuss the nature of the exemptions claimed.

A.        NATURE OF THE EXEMPTION PROVISIONS

i.          Section 23: Solicitor-Client Privilege

One ground relied upon by the respondent as authorization for the Minister’s refusal to disclose the secret record is section 23 of the Act. This provision allows the head of the institution to refuse to disclose any record that contains information that is subject to solicitor-client privilege. Section 23 says the head of a government institution may refuse to disclose the information, and thus this section provides a discretionary exemption. Accordingly, there are two types of decisions to be made in relation to section 23: firstly, a factual decision as to whether or not the requested information is subject to solicitor-privilege, and secondly, a discretionary decision as to whether or not it ought to be nevertheless disclosed.

a.         The Factual Decision: Solicitor-Client Privilege

The Access to Information Act does not define “solicitor-client privilege”, thus it is necessary to refer to the common law definition. A substantial body of law in relation to solicitor-client privilege has developed. Justice Cullen stated the following in the decision of Weiler v. Canada (Department of Justice):

In Canada, the privilege has been elevated beyond a rule of evidence, and accorded the status of a substantive rule of law. The legal effect of the privilege has been expanded beyond protection of solicitor-client communications from disclosure in legal proceedings involving the parties to any circumstances where such communications may be disclosed without the client’s consent.[38]

Justice Lamer (as he then was) formulated the following four-part substantive rule with respect to solicitor-privilege in the Supreme Court of Canada decision of Descôteaux et al. v. Mierzwinski:

It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:

1.   The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

2.   Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.   When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.   Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.[39]

However, before one can apply the substantive rule of law, it is first necessary to define what is included under the umbrella of “solicitor-client privilege”. The Exchequer Court of Canada in the decision of Susan Hosiery Ltd. v. Minister of National Revenue enunciated the following principles, which have been followed in several decisions:

As it seems to me, there are really two quite different principles usually referred to as solicitor and client privilege, viz:

(a)  all communications, verbal or written, of a confidential character, between a client and a legal adviser directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal adviser’s working papers, directly related thereto) are privileged; and

(b)  all papers and materials created or obtained specially for the lawyer’s “brief” for litigation, whether existing or contemplated, are privileged.[40]

The Court then went on to state the following at pages 34 and 35:

What is important to note about both of these rules is that they do not afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that came into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the materials created for the lawyer’s brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them.

…

In my view, it follows that, whether we are thinking of a letter to a lawyer for the purpose of obtaining a legal opinion or of a statement of facts in a particular form requested by a lawyer for use in litigation, the letter or statement itself is privileged but the facts contained therein or the documents from which those facts were drawn are not privileged from discovery if, apart from the facts having been reflected in the privileged documents, they would have been subject to discovery. For example, the financial facts of a business would not fall within the privilege merely because they had been set out in a particular way as requested by a solicitor for purposes of litigation, but the statement so prepared would be privileged. [Emphasis added.][41]

The principle stated in the above quotation is important to the case at bar, as the applicant has submitted that at least part of the secret record ought to be disclosed by virtue of section 25 of the Act, which allows for severance of any part of the record that does not fall within an exempting provision. However, more will be said of this later.

In regards to the scope of the solicitor-client privilege, I agree with the following statement of Justice Halvorson of the Saskatchewan Court of Queen’s Bench, who stated the following in the decision of International Minerals& Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al.:

To engage solicitor-client privilege, it must be shown that the communication or document was made confidentially for the purpose of legal advice. Those objectives must be construed broadly. Where there is a continuum of communications and meetings between the solicitor and client, and information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, the privilege will attach to those communications and documents (see Balabel). [Emphasis added.][42]

The above quotation essentially reiterates the first principle stated in Susan Hosiery, supra. Justice Halvorson’s use of the phrase “continuum of communications” emphasizes the importance that “all communications ... between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance” fall under the protection of the solicitor-client privilege.

In a case similar to the case at bar, Associate Chief Justice Jerome discussed the law of solicitor-client privilege in the context of a review under section 41 of the Act, with respect to a decision refusing disclosure of information on the basis of section 23 of the Act. The Associate Chief Justice stated the following:

The proper method to substantiate a claim of privilege was explained by the Supreme Court of Canada in Solosky v. The Queen, [1980] 1 S.C.R. 821 at 837:

As Mr. Justice Addy notes, privilege can only be claimed document by document, with each document being required to meet the criteria for the privilege”(i) a communication between solicitor and client, (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. To make the decision as to whether the privilege attaches, the letters must be read by the judge, which requires, at a minimum, that the documents be under the jurisdiction of a court.

As it is unlikely that all records or transactions between a solicitor and client fall within this privilege, the burden falls on the moving party to demonstrate that each and every document in question fits squarely within the scope of the rule. Consequently, it is clear that that party must produce for the Court all material for which it is seeking to assert privilege, to enable the judge to make an informed evaluation of the contents: [Nabisco Brands Ltd. v. Procter & Gamble Co. et al (1989), 24 C.P.R. (3d) 570 (F.C.A.)].

The onus is on the government department in question to establish that the information was communicated to or by a government lawyer in order to provide senior department officials with advice on the legal ramifications of proposed departmental actions. In addition, it must be demonstrated that the information given was and is confidential; there must have been confidentiality at the time it was communicated and since that time: Canadian Jewish Congress v. M.E.I. (Canada), T-1284-92, March 10, 1995, unreported, (F.C.T.D.) [Please see [1995] F.C.J. No. 362].[43]

The above cases set out the common law definition of solicitor-client privilege and the substantive rule of law applicable to information protected under this definition. It is within this framework that I will review the documents in the secret record to determine whether the Minister erred in concluding that the documents were properly subject to solicitor-client privilege.

b.         The Discretionary Decision

As was discussed above in the context of the main record, it is my view that the Court ought only review the discretionary decision to determine if the discretion was exercised properly. In the decision of Rubin, supra, the Federal Court of Appeal stated:

In my view, section 49 clothes the Court with jurisdiction to determine whether the head of the institution is authorized to refuse disclosure. The discretion given to the institutional head is not unfettered. It must be exercised in accordance with recognized legal principles. It must also be used in a manner which is in accord with the conferring statute. (Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.) at pages 1030, 1034). The applicable legal principles are well stated by Wilson J. in the Oakwood case when she said that an administrative decision-maker “must be seen not only to have restricted its gaze to factors within its statutory mandate but must also be seen to have turned its mind to all the factors relevant to the proper fulfillment of its statutory decision-making function.”[44]

If the Court determines that the discretion was properly exercised, then the decision of the Minister will be upheld. However, if the Court determines otherwise, then as was discussed above in relation to the main record, an appropriate order of this Court would be to refer the matter back to the Minister to exercise his/her discretion properly.

ii.         Section 19: Personal Information Exemption

The second ground upon which the respondent claims that the documents contained within the secret record are exempt from disclosure is the personal information exemption set out in section 19 of the Act. The operation of section 19 was discussed in detail above, and accordingly nothing more need be said about it at this time.

iii.        Section 25: Severance Provision

When reviewing the secret record, the Court must also consider the applicability of section 25 of the Act.[45] This section obliges the head of the institution to disclose any part of the record that does not contain information that the head of the institution is authorized to refuse to disclose, if that part of the record can reasonably be severed. Associate Chief Justice Jerome stressed the importance of the requirement that information only be disclosed if it could reasonably be severed in the decision of Canada (Information Commissioner) v. Canada (Solicitor General), wherein he stated the following:

Indeed, Parliament seems to have intended that severance of exempt and non-exempt portions be attempted only when the result is a reasonable fulfillment of the purposes of these statutes.

…

Disconnected snippets of releasable information taken from otherwise exempt passages are not, in my view, reasonably severable. [Emphasis added.][46]

Applying the common law definition of solicitor-client privilege together with section 25 to this record, it is my opinion that when the head of the institution has refused to disclose information on the basis of the solicitor-client privilege exemption of section 23, and where the Court determines that solicitor-client privilege is applicable, it will be infrequent that section 25 should apply to sever part of the record, making it releasable. The quotation from Susan Hosiery, set out above, made it clear that although the facts contained within a communication between a solicitor and his/her client may not themselves be privileged, the document within which they are contained is privileged. As was discussed above, section 23 does provide a discretionary exemption, as it only states that the head of the institution may refuse to disclose information protected by solicitor-client privilege. Accordingly, it could be argued, in a case where the facts contained within a solicitor-client privileged document are not privileged in and of themselves, that such would be an appropriate case for the Minister to sever this portion of the document and exercise his/her discretion under section 23 of the Act to release this severed portion of information. The applicant has submitted that an appropriate approach is to order such background facts severed and disclosed.[47]

In theory, under the Act this would be permissable, as section 23 is a discretionary exemption rather than a mandatory exemption, so although the factual portion of a communication may be “privileged” under the Susan Hosiery definition, section 23 gives the Minister the discretion to release it, and section 25 gives the Minister the authority to sever and release parts of the record. However, it is my opinion, that if the Minister chooses to exercise his/her discretion to retain solicitor-client privilege and therefore refuses disclosure of the information, that would not constitute an improper exercise of discretion. The concept of solicitor-client privilege is well established in our common-law, and the reasons behind it remain of utmost importance today. The Exchequer Court articulated those reasons as follows, in the Susan Hosiery decision:

In so far as the solicitor-client communications are concerned, the reason for the rule, as I understand it, is that, if a member of the public is to receive the real benefit of legal assistance that the law contemplates that he should, he and his legal adviser must be able to communicate quite freely without the inhibiting influence that would exist if what they said could be used in evidence against him so that bits and pieces of their communications could be taken out of context and used unfairly to his detriment unless their communications were at all times framed so as not only to convey their thoughts to each other but so as not to be capable of being misconstrued by others. The reason for the rule, and the rule itself, extends to the communications for the purpose of getting legal advice, to incidental materials that would tend to reveal such communications, and to the legal advice itself. It is immaterial whether they are verbal or in writing.

Turning to the “lawyer’s brief” rule, the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer’s preparation of his client’s case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system.[48]

Furthermore, I do not believe that disclosing “disconnected snippets of information” constitutes reasonable severance of the record.

B.        REVIEW OF THE SECRET RECORD

Bearing in the mind the exempting provisions discussed above, I have reviewed the documents contained in the secret record. The documents in the secret record can be divided into the following four groups:

1. Documents that the respondent claims are exempt from disclosure under section 23 of the Act, as being subject to solicitor-client privilege.

2. Documents that the respondent claims are exempt from disclosure under section 19 of the Act, as containing personal information.

3. Documents that the respondent claims are exempt from disclosure because they are not relevant as they contain no information.

4. Documents that the respondent has not claimed are exempt from disclosure and which have been released to the applicant (8 pages).

Section 23 Exemption

I have reviewed the secret record, document by document, to determine if the Minister was authorized to refuse disclosure of the record or part thereof, on the basis of solicitor-client privilege. As was discussed above, since section 23 is a discretionary exemption provision, there are two decisions to review: the factual decision and the discretionary decision.

In regards to the factual decision, after reviewing the documents I am of the opinion that nearly all of these documents are subject to solicitor-client privilege. With respect to a small number of pages, I found they were not protected by solicitor-client privilege, however I have decided they are irrelevant to the applicant’s request for information regarding Mr. Sokolov’s current immigration status, and have found the Minister’s refusal to disclose them authorized on that basis. However, more will be said of those documents later. Also, with respect to one page, I found it was not protected by solicitor-client privilege, however it did contain personal information and as such I have included it in the discussion below, with respect to the section 19 exemption provision. I therefore find the following pages of the secret record are subject to solicitor-client privilege: 249, 250, 253-255, 258, 263, 268, 274-277, 280-282, 286, 288-290, 293, 304-310, 313-314, 316-326, 345-347, 350-357, 375-388, 395-397, 398, 400-418, 420, 423-424, 426-432, 434, 438-447, 449-453.

With respect to the documents that I have found are subject to solicitor-client privilege, I must now review the discretionary decision of the respondent, to not release these documents pursuant to section 23. I have discussed above, in the context of the main record, the role of the Court in reviewing a discretionary decision of the Minister. In this case, I am satisfied that the Minister properly exercised his discretion in deciding to refuse disclosure. As the Associate Chief Justice stated in an earlier application before this Court by these same two parties: “From time immemorial it has been a fundamental principle of our system of justice that information or advice given in confidence between lawyer and client is privileged from disclosure to the public.”[49] Accordingly, I uphold the decision of the respondent to refuse disclosure of the above listed documents on the basis of solicitor-client privilege.

Section 19 Exemption

After a review of the documents, I found that nearly all of the documents that the respondent claimed were exempt as containing personal information do in fact contain personal information, and as such are prima facie exempt from disclosure pursuant to subsection 19(1) of the Act. With respect to a small number of pages, I found they did not contain personal information, however were irrelevant to the request of the applicant for information pertaining to Mr. Sokolov’s immigration status, and thus the Minister was authorized to refuse disclosure on that basis. This will be discussed further below. I therefore find the following pages of the secret record contain personal information: 248, 251-252, 256-257, 260-262, 264-267, 270-272, 279, 287, 295, 297, 301, 303, 312, 315, 327, 329-331, 333-335, 338, 344, 349, 358-363, 365-374, 389-394, 399, 419, 425, 448, 454.

However, I must also review the discretionary decision that must be made under subsection 19(2) of the Act. Mr. Aumand, the Access to Information and Privacy Coordinator, was the delegate of the Minister who refused to disclose these documents to the applicant. In his letter to the applicant, dated February 18, 1994, Mr. Aumand stated that he refused disclosure on the basis of subsection 19(1) and section 23, however only subsection 19(1) is important to this discussion. As has been discussed in detail supra, subsection 19(2) provides exceptions to the otherwise mandatory exemption provision of subsection 19(1). Mr. Aumand does not indicate whether or not he took into consideration the potential exceptions from exemption provided for under subsection 19(2). As was also discussed above, even if Mr. Aumand had found that an exception in subsection 19(2) applied, it would then be in his discretion as to whether or not the information ought to be disclosed. It is not the role of this Court to substitute its discretion for that of the Minister’s. I am not satisfied that there was sufficient evidence indicating that Mr. Aumand improperly exercised his discretion, and accordingly I uphold the decision of the respondent to refuse disclosure of the above listed documents, pursuant to the section 19 exemption provision.

Irrelevant Documents

The applicant’s request for information of January 15, 1992, by Mr. Eric Vernon of the Canadian Jewish Congress, specifically requested information as to Mr. Sokolov’s “current immigration status”.[50] Section 6 of the Act requires the request for information to be in writing and to “provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record”.[51] Furthermore, section 49 of the Act only applies when the Minister has refused to “disclose a record requested under this Act”. It is my interpretation of the Act that the government institution is only obliged to search for documents relevant to the request, and is likewise only obliged to disclose relevant information. Justice Denault of this Court stated the following in regards to section 6 in the decision of X, supra, at page 87:

Section 6 imposes an obligation on the applicant to state precisely what he is seeking and a corresponding obligation is imposed on the Canadian institution to make all efforts to locate and identify documents relevant to the request.[52]

However, Justice Denault did state later in the same decision that “[t]he fact that information is not directly related to an access request is not a basis for exemption under the Act”.[53] With all due respect, I find that in the circumstances of the case at bar, if there was a document in the secret record that did not pertain to Mr. Sokolov’s current immigration status, then it is not a record that has been requested, and thus there is no obligation on the respondent to disclose it.

I have reviewed the documents that the respondent claimed were irrelevant and contained no information and I agree with the decision of the respondent not to disclose these documents. They are irrelevant and do not contain any meaningful information, notwithstanding they do not contain any information pertaining to the request of the applicant. I find it is not reasonable to sever these documents and release them. Severance of these documents would result in the release of “disconnected snippets of information”, which is not the purpose of section 25 of the Act. Furthermore, as discussed above, I interpret the Act as only requiring the respondent to search for and disclose those documents relevant to the information requested by the applicant. In addition, as was mentioned above, with respect to a small number of pages that the respondent claimed were exempt on the sections 19 or 23 basis, I find they fall under the category of irrelevant documents, and I uphold the Minister’s decision to refuse disclosure, on this basis. Therefore, I find the following pages of the secret record are irrelevant to the information requested by the applicant, and the respondent need not disclose them to the applicant: 259, 269, 273, 294, 296, 298-300, 311, 328, 336-337, 339-343, 348, 364, 421-422, 433, 435-437.

Documents Already Disclosed

According to Exhibit B of the supplementary affidavit of Helen Sparks,[54] sworn August 30, 1994, the following pages of the secret record were disclosed to the applicant in February of 1994, by Mr. Aumand: 278, 283, 284, 285, 291, 292, 302, 332. If these documents have not already been disclosed to the applicant, then I hereby order they be disclosed forthwith.

IV.       CONCLUSION

With respect to the main record, I order that the information request of the applicant, dated January 15, 1992, be referred back to the respondent for review and redetermination by a different delegate of the respondent, that review and redetermination to be made on an expedited basis.

I uphold the respondent’s decision to refuse disclosure of the following pages of the secret record on the basis of section 23 of the Act: 249-250, 253-255, 258, 263, 268, 274-277, 280-282, 286, 288-290, 293, 304-310, 313-314, 316-326, 345-347, 350-357, 375-388, 395-396, 397, 398, 400-418, 420, 423-424, 426-432, 434, 438-447, 449-453.

Similarly, I uphold the respondent’s decision to refuse disclosure of the following pages of the secret record on the basis they contain personal information and are exempt from disclosure under section 19 of the Act: 248, 251-252, 256-257, 260-262, 264-267, 270-272, 279, 287, 295, 297, 301, 303, 312, 315, 327, 329-331, 333-335, 338, 344, 349, 358-363, 365-374, 389-394, 399, 419, 425, 448, 454.

As for the following pages of the secret record, I find the Minister was authorized in refusing disclosure, as they are irrelevant to the information requested by the applicant: 259, 269, 273, 294, 296, 298-300, 311, 328, 336-337, 339-343, 348, 364, 421-422, 433, 435-437.

If the following pages of the secret record have not already been disclosed to the applicant, then I order the respondent to disclose them forthwith: 278, 283, 284, 285, 291, 292, 302, 332.

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