Murchison v. Export Development Canada

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Zinn, J.
• Citation: (2009), 354 F.T.R. 18 (FC),2009 FC 77
• Date: 21 October 2008

Murchison v. Export Dev. Can. (2009), 354 F.T.R. 18 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. FE.033

Keith N. Murchison (applicant) v. Export Development Canada (respondent)

(T-1291-07; 2009 FC 77)

Indexed As: Murchison v. Export Development Canada

Federal Court

Zinn, J.

January 26, 2009.

Summary:

The applicant wanted to return to work for Export Development Canada (EDC) after a few years in the private sector. He made 26 applications for employment. All were refused. Thinking that his human resources file contained unfavourable information that blocked his being rehired, the applicant began a quest for disclosure of personal information. This included written requests to EDC and a complaint to the Office of the Privacy Commissioner. At issue was whether the respondent could claim an exemption from disclosure on the basis of solicitor-client privilege and the fact that some documents allegedly contained "non-personal" information. The applicant's quest resulted in a partial disclosure. That left an outstanding dispute respecting some 900 pages of documents. The applicant sought a review.

The Federal Court allowed the application in part. Many of the 900 pages affected were ordered disclosed but some of the applicant's submissions were rejected. The court ordered each party to pay their own costs.

Crown - Topic 7163

Examination of public documents - Freedom of information - Legislation - Decisions made pursuant to - The applicant requested information from the respondent Export Development Canada (EDC) pursuant to the Privacy Act (Can.) - Unhappy with the disclosure obtained, the applicant sought a court review arguing that EDC failed to follow a document prepared by the Treasury Board of Canada and entitled "Privacy and Data Protection - Policies and Publications" - The applicant complained that EDC failed to keep records of administrative actions, deliberations and decisions taken and its reasoning when processing the access request - He submitted that as a result of these breaches, he was denied fairness in the procedure as it was impossible to ascertain with certainty the veracity and legitimacy of the exemption claims advanced by EDC - The Federal Court allowed the application in part but rejected the applicant's argument respecting failure to follow the Treasury Board of Canada's document - Failure to comply had no consequence for the institution subject to an information request - See paragraphs 47 to 50.

Crown - Topic 7163

Examination of public documents - Freedom of information - Legislation - Decisions made pursuant to - The Federal Court held as follows: "The sections of the [Privacy] Act dealing with refusals to disclose personal information all specifically state that it is the head of the institution that may refuse disclosure. It follows that a statement by an officer or employee of the institution who is not the head of the institution as defined in the Act, or to whom authority has not been delegated by the head of the institution, is without effect" - See paragraphs 54 to 59.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - The Federal Court stated that a claim of solicitor-client privilege as a bar to disclosure of public documents would not fail simply because the solicitor in the relationship was licensed in a province other than that in which the issue arose - See paragraphs 31, 33 and 34.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - The applicant wanted to return to work for Export Development Canada (EDC) after a few years in the private sector - He made 26 applications for employment - All were refused - Thinking that his human resources file contained unfavourable information that blocked his being rehired, the applicant sought disclosure of personal information in EDC's hands - At issue was whether EDC could claim an exemption from disclosure on the basis of solicitor-client privilege and the fact that some documents allegedly contained "non-personal" information - The Federal Court ordered the disclosure, for the following reasons, of many of some 900 pages of documents that had been redacted or withheld: (a) the document was a non-privileged attachment or enclosure to a privileged document and the exemption asserted was solicitor-client privilege; (b) the document was sent to or from an employee of EDC who was a lawyer but who also filled a non-legal role at EDC, and on the balance of probabilities, the document was sent to or from him in his non-legal role; (c) the document was an email message that was copied to an in-house EDC lawyer and there was no request advanced for legal advice; (d) the document was sent to or from an employee of EDC who was a lawyer but there was no request advanced for legal advice and no legal advice offered; (e) the only valid exemption claimed by EDC was under s. 12(1) of the Privacy Act, but the information was held to constitute personal information of the applicant; (f) EDC agreed to release the document to the applicant (these were usually blank pages over which an exemption had been claimed); (g) the redaction made by EDC was too broad and the non-exempted information was ordered released; and (h) the document contains no solicitor-client privileged information - See paragraphs 31 to 46, 60 to 65, 71, 72, 74.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - [See second Crown - Topic 7203 ].

Crown - Topic 7287.01

Examination of public documents - Freedom of information - Practice - Notices - Time limitations - The applicant argued that the respondent government institution waived or lost the ability to claim any exemption from disclosure because it responded late to his request for information under the Privacy Act (Can.) - The Federal Court rejected the argument, ruling that delay alone did not prevent the respondent from asserting the exemptions available to it under the Act - Accordingly, the respondent's claim for the exemption after the time for an initial response was not fatal if the factual basis for an exemption was shown - See paragraphs 21 to 30.

Cases Noticed:

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. 19].

Elomari v. President of the Canadian Space Agency, [2006] F.T.R. Uned. 896; 2006 FC 863, refd to. [para. 19].

Gauthier et al. v. Canada (Minister of Justice) (2004), 252 F.T.R. 81; 2004 FC 655, refd to. [para. 19].

Longaphy v. Canada (Solicitor General), [1995] F.C.J. No. 1429 (T.D.), consd. [para. 27].

Commissaire à l'information du Canada v. Canada (Ministre de la Défense national) (1999), 166 F.T.R. 277 (T.D.), consd. [para. 29].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refed to. [para. 30].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, consd. [para. 32].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 32].

Gower v. Tolko Manitoba Inc. (1999), 141 Man.R.(2d) 245; 181 D.L.R.(4th) 353 (Q.B.), affd. (2001), 153 Man.R.(2d) 20; 238 W.A.C. 20; 196 D.L.R.(4th) 716 (C.A.), consd. [para. 34].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, consd. [para. 35].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 180 D.L.R.(4th) 241; 45 O.R.(3d) 321 (C.A.), consd. [para. 36].

Belgravia Investments Ltd. et al. v. Canada (2002), 220 F.T.R. 246; 2002 FCT 649, consd. [para. 45].

Canada Post Corp. v. Canada (Minister of Public Works) et al., [1993] 3 F.C. 320; 64 F.T.R. 62 (T.D.), consd. [para. 48].

Information Commissioner (Can.) v. Canada (Minister of Citizenship and Immigration) (2002), 291 N.R. 236; 2002 FCA 270, refd to. [para. 48].

Maple Lodge Farms Ltd. v. Canada et al., [1981] 1 F.C. 500; 42 N.R. 312 (F.C.A.), affd. [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 50].

Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; 98 N.R. 126 (F.C.A.), consd. [paras. 61, 67].

Blank v. Canada (Minister of Justice) (2005), 286 F.T.R. 44; 2005 FC 1551, not folld. [para. 61].

Blank v. Canada (Minister of Justice), [2006] F.T.R. Uned. 892 (F.C.), not folld. [para. 61].

Information Commissioner (Can.) v. Canada (Solicitor General), [1988] 3 F.C. 551; 20 F.T.R. 314 (T.D.), consd. [para. 63].

Davidson v. Canada (Solicitor General), [1987] 3 F.C. 15; 9 F.T.R. 295 (T.D.), consd. [para. 66].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 3, sect. 12(1) [para. 18]; sect. 14 [para. 22]; sect. 16 [para. 23]; sect. 27 [para. 18]; sect. 41 [para. 17].

Authors and Works Noticed:

Canada, Treasury Board, Access to Information and Privacy Policies and Guidelines, c. 1-1, s. 5 [para. 50]; c. 2, Introduction [para. 50]; c. 2-6 [para. 50].

Canada, Treasury Board of Canada Secretariat, Privacy and Data Protection - Policies and Publications, http://www.tbs-sct.gc.ca/pubs_pol/gospubs/TBM_128/siglist_e.asp, generally [para. 47, footnote 1].

Sharpe, Robert J., Claiming Privilege in the Discovery Process, in Law in Transition: Evidence, [1984] L.S.U.C. Special Lectures 163, pp. 164, 165 [para. 35].

Counsel:

Keith N. Murchison, on his own behalf;

Heather J. Williams and Chris Merrick, for the respondent.

Solicitors of Record:

Cavanagh Williams, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on October 21, 2008, by Zinn, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on January 26, 2009.