Leahy v. Canada (Minister of Citizenship and Immigration), (2012) 438 N.R. 280 (FCA)

• Judge: Dawson, Trudel and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 26, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 438 N.R. 280 (FCA);2012 FCA 227

Leahy v. Can. (M.C.I.) (2012), 438 N.R. 280 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. SE.007

Timothy Edw. Leahy (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-302-11; 2012 FCA 227; 2012 CAF 227)

Indexed As: Leahy v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Dawson, Trudel and Stratas, JJ.A.

September 4, 2012.

Summary:

Leahy was a lawyer with Forefront Migration Ltd. In that capacity, he represented or advised persons in conjunction with immigration proceedings or applications. In 2007, Citizenship and Immigration Canada (CIC) decided that Leahy was not an "authorized representative" as defined in the Immigration and Refugee Protection Regulations. It reversed its position on that issue in 2008. Leahy made a request for information under s. 12 of the Privacy Act seeking materials in the possession of CIC pertaining to Leahy. CIC disclosed some information, but refused access to other information on the basis that it was exempted pursuant to s. 26 (third-party information) and s. 27 (solicitor-client privilege) of the Act. Leahy complained to the Privacy Commissioner who concluded that the complaint was not well-founded. Leahy applied for judicial review pursuant to s. 41 of the Act.

The Federal Court, in a decision reported at (2011), 395 F.T.R. 260, dismissed the application. Leahy appealed.

The Federal Court of Appeal allowed the appeal. The court's decision was based on the failure of CIC to provide an evidentiary basis sufficient to permit the court, or the Federal Court, to properly review the decision to withhold access to personal information from Leahy. The application for judicial review was allowed and the matter of whether exemptions applied to all or part of the documents and, if so, whether a discretion should be exercised in favour of release, was remitted for redetermination by a different decision-maker.

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See Courts - Topic 4806 ].

Courts - Topic 1443

Administration - Documents filed by parties - Public right of access - General - [See Courts - Topic 4806 ].

Courts - Topic 4806

Common law - General - Hearings - Open court - The Federal Court of Appeal stated that "an overbroad claim of confidentiality is wrong at law for at least two reasons. First, it is a fundamental principle that proceedings of Canadian courts are open and accessible to the public. The open court principle extends to the affidavit evidence and the written submissions filed on judicial review. Any restriction on the presumption of openness should only be permitted when: (a) such a restriction is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not present the risk; and (b) the salutory effects of the restriction outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of each party to a fair and public hearing, and the efficacy of the administration of justice. ... There is no justification for placing non-confidential information or submissions in a confidential document. To do so violates the open court principle. Second, fairness requires that a party know the case to be met. An overbroad claim to confidentiality that prevents the opposite party from knowing as much as possible about the evidence and the submissions made to the Court improperly impairs the opposite party's ability to respond to the case. Put simply, an overbroad claim of confidentiality is inconsistent with the duty of procedural fairness" - See paragraphs 44 to 57.

Crown - Topic 7103.4

Examination of public documents - General - Government institution - Defined - Leahy applied under s. 41 of the Privacy Act for judicial review of a decision of Citizenship and Immigration Canada (CIC) which refused Leahy's request for access to certain information under the Act based on exemptions found in s. 26 and 27 of the Act - The application was dismissed - Leahy appealed - He asserted that the application judge erred in allowing CIC to exclude from the scope of the Privacy Request documents in the possession of the Immigration and Refugee Board - The Federal Court of Appeal rejected this argument - Section 13(2) of the Act required a request for access to be made to the government institution that had control of the information - The judge found CIC did not err by excluding information possessed by the Immigration and Refugee Board because "The IRB operates separately from CIC and is also considered a separate government institution under Schedule 3 of the Privacy Act" - The applications judge's interpretation of the Act was correct - The Immigration and Refugee Board was a body listed in the schedule to the Act - As such, any request for documents in its control should have been made directly to the Immigration and Refugee Board - See paragraphs 110 to 115.

Crown - Topic 7104

Examination of public documents - Requirement of precise request - Leahy made a request for information under s. 12 of the Privacy Act seeking materials in the possession of Citizenship and Immigration Canada (CIC) pertaining to Leahy - CIC refused access to certain information on the basis that it was exempted pursuant to ss. 26 and 27 of the Act - Leahy complained to the Privacy Commissioner who concluded that the complaint was not well-founded - Leahy applied for judicial review pursuant to s. 41 of the Act - The application was dismissed - Leahy appealed - Leahy submitted that the CIC erred in limiting the scope of the Privacy Request to documents located at its National Headquarters - The Federal Court of Appeal rejected this argument - Section 12(1)(b) and s. 13(2) of the Act required a person requesting access to personal information to provide sufficiently specific information on the location of the information so that the government institution could reasonably retrieve the information - On receipt of the Privacy Request, CIC took the position that Leahy had failed to provide sufficiently specific information about the location of the requested information to render it reasonably retrievable - CIC gave Leahy the opportunity to provide more specific information - Given Leahy's failure to do so, CIC's decision to limit the scope of the Privacy Request was reasonable - As for the extent to which CIC limited the Privacy Request, the decision fell within a range of possible outcomes that was defensible on the facts and the law - See paragraphs 104 to 109.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - The Federal Court of Appeal provided a general overview of the Privacy Act and its basic architecture, emphasizing the interpretative principles applicable to s. 26 (third party personal information) and s. 27 (solicitor-client privilege) - It also discussed where the Act vested decision making power and how documents were classified within government departments - See paragraphs 66 to 92.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Leahy made a request for information under s. 12 of the Privacy Act seeking materials in the possession of Citizenship and Immigration Canada (CIC) pertaining to Leahy - CIC refused access to certain information on the basis that it was exempted pursuant to ss. 26 and 27 of the Act - Leahy complained to the Privacy Commissioner who concluded that the complaint was not well-founded - Leahy applied for judicial review pursuant to s. 41 of the Act - The application was dismissed - Leahy appealed - The Federal Court of Appeal held that correctness was the standard of review for decisions that the information fell within the statutory exemptions under ss. 26 and 27 of the Act - The reasonableness standard of review applied to exercises of discretion not to release information that fell within those exemptions - Leahy also asserted on appeal that the scope of the Privacy Request was improperly limited because: i. CIC limited the Privacy Request to documents located at its National Headquarters; and ii. The applications judge allowed CIC to exclude documents in the possession of the Immigration and Refugee Board - The first question required the CIC decision-maker to consider whether Leahy had provided sufficiently specific information about the location of the requested information so as to make the information reasonably retrievable - That was a heavily fact-based question that warranted deference - The second question required the judge to interpret the Act - That was a question of law which the judge was required to decide correctly - See paragraphs 96 to 103.

Crown - Topic 7296

Examination of public documents - Freedom of information - Practice - Reasons for decision - Leahy applied under s. 41 of the Privacy Act for judicial review of a decision of Citizenship and Immigration Canada (CIC) which refused Leahy's request for access to certain information under the Act based on third-party information and solicitor-client privilege exemptions found in s. 26 and 27 of the Act - The application was dismissed - Leahy appealed, submitting that CIC's decisions under ss. 26 and 27 of the Act were subject to reviewable error - The Federal Court of Appeal held that the evidentiary basis before it was inadequate to determine this issue - The decision letter merely asserted the exemptions that applied - No further reasons were given - The record consisted of a relatively thin affidavit, documents that had been produced to the appellant, and documents that had been withheld from the appellant - That material did not provide the court with the basic information needed in order to discharge its role - First, the record was silent as to who made the relevant decisions and no satisfactory inference could be drawn from the record - The court did not know who the decision-maker was - Second, information had been withheld on the basis of solicitor-client privilege and litigation privilege, but nowhere in the record was there any indication of what the decision-maker thought those concepts meant - Third, it was appropriate for the reviewing court to examine the withheld documents, draw appropriate inferences and use those inferences to assess whether the decision-maker made any reviewable error - But those inferences could take the reviewing court only so far - Fourth, the reasons or the record should show that the decision-maker was aware of the discretion to release exempted information and exercised that discretion one way or the other - There was nothing in the reasons or the record on that point - These deficiencies in the information prevented the court from discharging its role on judicial review - See paragraphs 116 to 137.

Crown - Topic 7296

Examination of public documents - Freedom of information - Practice - Reasons for decision - Leahy applied under s. 41 of the Privacy Act for judicial review of a decision of Citizenship and Immigration Canada (CIC) which refused Leahy's request for access to certain information under the Act based on the third-party information and solicitor-client privilege exemptions found in ss. 26 and 27 of the Act - The Federal Court dismissed the application - Leahy appealed, submitting that CIC's decisions under ss. 26 and 27 of the Act were subject to reviewable error - The Federal Court of Appeal held that the evidentiary basis before it was inadequate to determine this issue - The court described the sort of information a reviewing court needed in order to discharge its role - The court stated that "all that is needed is sufficient information for a reviewing court to discharge its role. In cases like this, this can be achieved by ensuring that there is information in the decision letter or the record that sets out the following: (1) who decided the matter; (2) their authority to decide the matter; (3) whether that person decided both the issue of the applicability of exemptions and the issue whether the information should, as a matter of discretion, nevertheless be released; (4) the criteria that were taken into account; and (5) whether those criteria were or were not met and why" - See paragraph 141.

Cases Noticed:

Blank v. Canada (Minister of Justice) (2010), 409 N.R. 152; 2010 FCA 183, refd to. [para. 30].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 38].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 52].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 68].

Information Commissioner (Can.) v. Canadian Transportation Accident Investigation and Safety Board, [2007] 1 F.C.R. 203; 348 N.R. 263; 2006 FCA 157, refd to. [para. 68].

Information Commissioner (Can.) v. Royal Canadian Mounted Police (Commissioner), [2003] 1 S.C.R. 66; 301 N.R. 41; 2003 SCC 8, refd to. [para. 68].

Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 69].

Information Commissioner (Can.) et al. v. Immigration and Refugee Board (Can.) (1997), 140 F.T.R. 140 (T.D.), refd to. [para. 73].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 73].

Canadian Association of Elizabeth Fry Societies v. Canada (Minister of Public Safety) et al., [2011] 3 F.C.R. 309; 368 F.T.R. 211; 2010 FC 470, refd to. [para. 73].

Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; 221 N.R. 145 (F.C.A.), refd to. [para. 73].

Murdoch v. Royal Canadian Mounted Police, [2005] 4 F.C.R. 340; 271 F.T.R. 278; 2005 FC 420, refd to. [para. 75].

Cunha v. Minister of National Revenue et al. (1999), 164 F.T.R. 74 (T.D.), refd to. [para. 75].

Connolly v. Canada Post Corp. et al., (2000), 197 F.T.R. 161 (T.D.), affd. [2002] N.R. Uned. 24; 2002 FCA 50, refd to. [para. 75].

Mislan v. Minister of National Revenue (1998), 148 F.T.R. 121 (T.D.), refd to. [para. 77].

Cemerlic v. Canada (Solicitor General) (2003), 228 F.T.R. 1; 2003 FCT 133, refd to. [para. 78].

Elomari v. President of the Canadian Space Agency, [2006] F.T.R. Uned. 896; 2006 FC 863, refd to. [para. 80].

Stevens v. Prime Minister (Can.), [1998] 4 F.C. 89; 228 N.R. 142 (F.C.A.), refd to. [para. 81].

Canadian Jewish Congress v. Minister of Employment and Immigration, [1996] 1 F.C. 268; 102 F.T.R. 30 (T.D.), refd to. [para. 81].

Société de Transport de la Communauté Urbaine de Montréal v. Canada (Minister of the Environment), [1987] 1 F.C. 610; 9 F.T.R. 152 (T.D.), refd to. [para. 84].

Information Commissioner (Can.) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219; 291 N.R. 236; 2002 FCA 270, refd to. [para. 92].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 93].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 99].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 103].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 121].

Canada Post Corp. v. Public Service Alliance of Canada et al., [2011] 3 S.C.R. 572; 423 N.R. 117; 2011 SCC 57, refd to. 121].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 121].

Attaran v. Canada (Minister of Foreign Affairs) (2011), 420 N.R. 315; 2011 FCA 182, refd to. [para. 133].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 2 F.C.R. 576; 382 N.R. 2; 2008 FCA 255, refd to. [para. 145].

Stemijon Investments Ltd. v. Canada (Attorney General) (2011), 425 N.R. 341; 2011 FCA 299, refd to. [para. 145].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 145].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 3 [para. 114]; sect. 8(2)(m) [para. 78]; sect. 12 [para. 15]; sect. 13(2) [para. 112]; sect. 26 [para. 24]; sect. 27 [para. 79]; sect. 41 [para. 27].

Counsel:

Timothy E. Leahy, for the appellant;

A. Leena Jaakkimainen and Nicole Paduraru, for the respondent.

Solicitors of Record:

General Counsel & Director, Forefront Migration Ltd., Toronto, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on April 26, 2012, at Toronto, Ontario, before Dawson, Trudel and Stratas, JJ.A., of the Federal Court of Appeal. The Court of Appeal delivered the following judgment on September 4, 2012.