Canadian Jewish Congress v. Minister of Employment and Immigration, (1995) 102 F.T.R. 30 (TD)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Heald, D.J.
• Citation: (1995), 102 F.T.R. 30 (TD)
• Court: Federal Court (Canada)
• Date: 04 October 1995

Cdn. Jewish Congress v. MEI (1995), 102 F.T.R. 30 (TD)

MLB headnote and full text

In The Matter of an Application under s. 41 of the Access to Information Act, R.S.C. 1985, c. A-1.

Canadian Jewish Congress (applicant) v. The Minister of Employment and Immigration (respondent)

(T-1284-92)

Indexed As: Canadian Jewish Congress v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Heald, D.J.

October 4, 1995.

Summary:

The Minister of Employment and Immigration refused to release any information to the Canadian Jewish Congress concerning the immigration status of one Sokolov. Sokolov's United States citizenship had been revoked because he had concealed his Nazi involvement during the war. Sokolov fled to Canada before being deported and applied for Convention Refugee status. The Congress applied for a review of the Minister's refusal under s. 41 of the Access to Information Act. The Minister filed an affidavit sworn by Wesley in response to the Congress's application. The Congress moved for its counsel to be granted access to Sokolov's immigration file on a confidential basis for the purpose of cross-examining Wesley on her affidavit and for arguing the review application.

The Federal Court of Canada, Trial Division, in a judgment reported 64 F.T.R. 78, granted counsel for the Congress access to Sokolov's immigration file, to prepare submissions for the judicial review application, subject to counsel undertaking to preserve confidentiality. Upon release of the file, counsel concluded that documents were missing. The Minister claimed that the balance of the file was part of a "secret record", which had not been reviewed by the Access to Information and Privacy Coordinator. The Congress moved to compel production of the entire "secret record" to counsel.

The Federal Court of Canada, Trial Division, in a judgment not reported in this series of reports, ordered the balance of the file to be reviewed by the Coordinator under the Act on an expedited basis, and subject to any order of the court, be given to the lawyer for the Congress (the expedited order). The Access to Information Coordinator reviewed the documents and concluded that they were exempt from disclosure under the Act. The Minister moved to vary the expedited order and exempt the "secret record" from release to counsel.

The Federal Court of Canada, Trial Division, in a judgment reported 93 F.T.R. 172, granted the motion. Subsequently, the application by the Congress under s. 41 of the Act to review the Minister's decision not to disclose all of the requested information relating to Sokolov's immigration status came on for hearing.

The Federal Court of Canada, Trial Division, held that (1) with respect to the information in the "main record", the Minister erred in exercising his discretion under s. 19 of the Act, so the matter was remitted to the Minister for review and redetermination on an expedited basis, and (2) with respect to the "secret record", the Minister did not err in refusing disclosure on the grounds of ss. 19 (personal information), and 23 (solicitor-client privilege) and, in the case of some portions, on the ground of irrelevancy.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client privilege - The Minister refused to disclose 174 of a total of 182 pages in a Convention Refugee claimant's file to the Canadian Jewish Congress on the ground that, inter alia, this portion of the file (secret record) was exempt from disclosure under s. 23 of the Access to Information Act (solicitor-client privilege) - The Federal Court of Canada, Trial Division, reviewed the documents and held that nearly all of them were subject to solicitor-client privilege - Those that were not privileged were found to be irrelevant to the request for information - The court stated that the Minister did not improperly exercise his discretion under s. 19(2) in refusing to disclose the information - See paragraphs 44 to 68.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client privilege - Section 23 of the Access to Information Act provided that the head of a government institution "may refuse to disclose any record requested ... that contains information ... subject to solicitor-client privilege" - The Federal Court of Canada, Trial Division, agreed that "all communications ... between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance" fell under the solicitor-client exemption from disclosure - The court referred to the common law definition of solicitor-client privilege and the substantive rule of law applicable to information protected under solicitor-client privilege - See paragraphs 51 to 57.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - Section 19(1) of the Access to Information Act provided that "personal information" as defined in s. 3 of the Privacy Act "shall" not be disclosed - Section 19(2) provided for three exceptions when personal information "may" be disclosed - The Federal Court of Canada, Trial Division, held that disclosure under s. 19(2), if the person seeking disclosure established that one of the three exceptions applied, was discretionary and not obligatory - See paragraphs 27 to 40.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The Minister of Employment and Immigration declined to disclose a Convention Refugee applicant's file (main record) to the Canadian Jewish Congress on the ground that it was "personal information" which "shall" not be disclosed (Access to Information Act, s. 19) - The Congress applied under s. 41 of the Act for judicial review - The Minister conceded that his delegate improperly exercised his discretion in deciding not to disclose any part of the file - The Federal Court of Canada, Trial Division, remitted the matter to the Minister to be redetermined by a proper exercise of the discretion - The court stated that the court should not determine which part, if any, of the file should not be disclosed - See paragraphs 13 to 43.

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - Section 25 of the Access to Information Act obligated the head of a government institution to disclose any part of requested information that he was not unauthorized to disclose, if that information could be severed from the information exempt from disclosure - The Federal Court of Canada, Trial Division, stated that where solicitor-client privilege applies "it will be infrequent that s. 25 should apply to sever part of the record. ... 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" - See paragraphs 61 to 64.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review - Standard of review - A government department refused to disclose information on the ground that it was personal information (Access to Information Act, s. 19) - The applicant sought judicial review under s. 41 of the Act - The Federal Court of Canada, Trial Division, stated that if the exemption provision was mandatory, the only issue on judicial review was whether the material fell under the description of the exemption - The court was effectively reviewing the department's factual decision as to whether nondisclosure was authorized - If nondisclosure was not authorized, then the appropriate remedy would be to order disclosure of the record - See paragraph 22.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review - Standard of review - A government department refused to disclose information on the ground that it was personal information (Access to Information Act, s. 19) - The applicant sought judicial review under s. 41 of the Act - The Federal Court of Canada, Trial Division, stated that if the exemption provision was discretionary, the court was first to determine whether the department erred in the factual decision that the information fell within the exempting provision - If the material fell within the exempting provision, then the court was to review whether or not the department's discretion not to disclose the information was properly exercised - The court stated that it should not attempt to exercise that discretion de novo - If the discretion was improperly exercised, the court should not order disclosure, but remit the matter to the department for a proper exercise of the discretion - See paragraph 23.

Cases Noticed:

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.), refd to. [para. 15, footnote 8].

X. v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.), refd to. [para. 15].

Wells v. Canada (Minister of Transport) (1995), 96 F.T.R. 178 (T.D.), refd to. [para. 15].

Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527; 77 F.T.R. 241 (T.D.), refd to. [para. 15].

Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266 (T.D.), refd to. [para. 15].

Kelly v. Canada (Solicitor General) et al. (1992), 53 F.T.R. 147 (T.D.), agreed with [para. 20].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 24, footnote 14].

Information Commissioner (Can.) v. Minister of Employment and Immigration, [1986] 3 F.C. 63; 5 F.T.R. 287 (T.D.), disagreed with [para. 34].

Bland v. National Capital Commission et al., [1991] 3 F.C. 325; 41 F.T.R. 202 (T.D.), disagreed with [para. 35].

Weiler v. Canada (Minister of Justice) et al., [1991] 3 F.C. 617; 46 F.T.R. 163 (T.D.), refd to. [para. 50].

Descôteaux et Centre Communautaire Juridique de Montréal v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 70 C.C.C.(2d) 385, refd to. [para. 50].

Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27 (Ex. Ct.), refd to. [para. 51].

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.), refd to. [para. 54].

Canadian Jewish Congress v. Minister of Employment and Immigration (1995), 93 F.T.R. 172 (T.D.), refd to. [para. 68, footnote 19].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 2(1), sect. 4(1) [para. 22, footnote 13]; sect. 13(1)(a), sect. 15(1) [para. 7, footnote 4]; sect. 19(1) [para. 4, footnote 2]; sect. 23 [para. 7, footnote 3]; sect. 25 [para. 61, footnote 18]; sect. 41 [para. 1, footnote 1]; sect. 46 [para. 15, footnote 9]; sect. 49 [para. 13, footnote 7].

Privacy Act, R.S.C. 1985, c. P-21, sect. 3 [para. 27, footnote 15]; sect. 41 [para. 20, footnote 12].

Counsel:

Mark Katz, for the applicant;

Leena Jaakkimainen and David MacIntosh, for the respondent.

Solicitors of Record:

Blake, Cassels & Grayson, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on August 30-31, 1995, before Heald, D.J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on October 4, 1995.