Cemerlic v. Canada (Solicitor General), (2003) 228 F.T.R. 1 (TD)

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: January 08, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 228 F.T.R. 1 (TD)

Cemerlic v. Can. (2003), 228 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. FE.028

Dzevad Cemerlic, M.D. (applicant) v. Solicitor General of Canada (respondent)

(T-571-01; 2003 FCT 133)

Indexed As: Cemerlic v. Canada (Solicitor General)

Federal Court of Canada

Trial Division

Kelen, J.

February 7, 2003.

Summary:

Cemerlic, believing he was the target of a CSIS investigation, applied under s. 12(1) of the Privacy Act for production of all information related to him in CSIS's personal information bank. The Solicitor General, on behalf of CSIS, disclosed some personal information, refused access to other personal information and refused to confirm or deny whether other personal information existed. Cemerlic's complaint to the Privacy Commissioner was dismissed. Cemerlic applied under s. 41 of the Privacy Act for a review of the Solicitor General's decision. At issue was (1) whether CSIS erred in refusing disclosure of personal information under ss. 19 (foreign government confidences), 21 (international affairs and defence confidences), 26 (third party confidences) and 28 (medical information confidences) of the Act; (2) whether CSIS erred in refusing to confirm or deny the existence of personal information in two personal information banks on the basis of national security and counterintelligence confidences (s. 16(2)); and (3) whether CSIS undertook a proper search of four personal information banks which it claimed contained no information on Cemerlic.

The Federal Court of Canada, Trial Division, allowed the application in part. CSIS erred in its application of exemptions in ss. 19, 26 and 28 to personal information contained in two information banks. The matter was remitted for a new review of the application of these exemptions.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - Section 26 of the Privacy Act gave the government a discretion to refuse disclosure of personal information about a third party, but made refusal of disclosure mandatory where the disclosure was prohibited under s. 8 - Section 8(2)(m) required the government to undertake a discretionary balancing of the public interest in disclosure and/or the benefit to the applicant in releasing the information against the privacy rights of third parties - The Federal Court of Canada, Trial Division, held that CSIS erred in refusing disclosure of personal information under s. 26 without conducting the discretionary balancing as required by s. 8(2)(m) - See paragraphs 28 to 34.

Crown - Topic 7206.4

Examination of public documents - Freedom of information - Bars - Medical confidences - Section 28 of the Privacy Act conferred a discretion to refuse to disclose personal information relating to the applicant's physical or mental health where disclosure would be contrary to the best interests of the applicant - Section 13(1) of the Privacy Regulations empowered the government to seek an opinion from a qualified medical practitioner or psychologist as to the applicant's best interests - The Federal Court of Canada, Trial Division, held that the government bears a heavy onus in justifying nondisclosure under s. 26 - In our society, persons are generally entitled to decide what is in their own best interests - CSIS erred in refusing disclosure under s. 26 without any form of analysis as to what was in the applicant's best interests - See paragraphs 35 to 40.

Crown - Topic 7220.06

Examination of public documents - Freedom of information - Bars - Information obtained in confidence from another government - CSIS refused disclosure to certain personal information on the ground that information received in confidence from a foreign government (Privacy Act, s. 19(1)(a)) could not be disclosed - Disclosure was permitted only where the foreign government consented to disclosure or the information was made public (s. 19(2)(a)) - The Federal Court of Canada, Trial Division, held that the authority claiming the exemption (CSIS) had an obligation to make reasonable efforts to seek the foreign government's consent - CSIS erred in refusing disclosure without making any effort to obtain consent - Permitting the government to determine when consent should be sought would render s. 19(2)(a) meaningless - See paragraphs 15 to 22.

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - CSIS refused to disclose certain personal information, relying on both mandatory and discretionary exemptions to disclosure - The applicant applied under s. 41 of the Privacy Act for a review of the decisions - The Federal Court of Canada, Trial Division, held that mandatory exemptions and factual determinations were reviewable on the basis of correctness - With respect to discretionary exemptions, the court stated that the standard of review was whether CSIS exercised its discretion "within proper limits and on proper principles" and "in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted" - See paragraphs 12 to 14.

Cases Noticed:

Ruby v. Royal Canadian Mounted Police et al. (2002), 295 N.R. 353 (S.C.C.), revd. in part [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), refd to. [para. 11].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 12].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), refd to. [para. 13].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 13].

Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; 49 F.T.R. 161 (T.D.), refd to. [para. 26].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2001] 3 F.C. 70; 267 N.R. 163 (F.C.A.), refd to. [para. 31].

Zanganeh v. Canadian Security Intelligence Service, [1989] 1 F.C. 244; 20 F.T.R. 100 (T.D.), refd to. [para. 47].

Statutes Noticed:

Exempt Personal Bank Order No. 14 (CSIS) - see Privacy Act Regulations (Can.).

Privacy Act, R.S.C. 1985, c. P-21, sect. 8(1), sect. 8(2)(m) [para. 28]; sect. 12(1) [para. 3]; sect. 16 [para. 43]; sect. 19(1)(a) [para. 15]; sect. 19(2) [para. 17]; sect. 21 [para. 23]; sect. 26 [para. 28]; sect. 28 [para. 35]; sect. 41 [para. 7]; sect. 47 [para. 12]; sect. 51 [para. 10].

Privacy Act Regulations (Can.), Exempt Personal Bank Order No. 14 (CSIS), SOR/92-688, sect. 18 [para. 42].

Counsel:

Dzevad Cemerlic, applicant, on his own behalf;

Gina M. Scarcella, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on January 8, 2003, at Ottawa, Ontario, before Kelen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 7, 2003.