Ruby v. Royal Canadian Mounted Police et al., (1997) 140 F.T.R. 42 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: February 03, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 140 F.T.R. 42 (TD)

Ruby v. RCMP (1997), 140 F.T.R. 42 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. JA.042

In The Matter Of the Privacy Act;

In The Matter Of an Application by Clayton Ruby concerning denial of access to personal information in the Royal Canadian Mounted Police Data Bank CMP/P-PU-005 and the Department of External Affairs Data Bank DEA/P-PO-040

Clayton C. Ruby (applicant) v. The Royal Canadian Mounted Police and the Department of External Affairs (respondents)

(T-867-90)

In The Matter Of an application for a review of the decision of the Solicitor General of Canada pursuant to s. 41 of the Privacy Act, R.S.C. 1985, c. P-21, as amended

Clayton Charles Ruby (applicant) v. The Solicitor General (respondent)

(T-638-91)

Indexed As: Ruby v. Royal Canadian Mounted Police et al.

Federal Court of Canada

Trial Division

MacKay, J.

November 25, 1997.

Summary:

Ruby was refused access to personal information banks maintained by three agencies of the Canadian Government, the Royal Canadian Mounted Police (RCMP), the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS). He filed complaints with the Privacy Commissioner. The Commissioner advised that in one case concerning two complaints (T-867-90), the complaints were not well-founded. In the other case (T-638-91) the Commissioner advised the Solicitor General that Ruby's complaint was in part well-founded and that certain information should be released. The Minister declined to accept the finding and release the information. Ruby applied for review of the refusals under s. 41 of the Privacy Act. Subsequently, the RCMP and CSIS released some of the information.

The Federal Court of Canada, Trial Division, dismissed the applications. The court refused to award costs to the respondents, however, where the impetus for the late disclosures was Ruby's initiation and continuation of the applications for judicial review. The court held that Ruby was entitled to costs where the applications raised important new principles in relation to the Act.

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General - The Federal Court of Canada, Trial Division, stated that "[i]n light of the purpose of the [Privacy] Act, and respecting the privacy of personal information about others, the emphasis is to be on disclosure to, or access for, an individual to personal information. The onus is on the government agent that refuses to disclose information to justify the refusal on the basis of a specified statutory exemption from access, and those exemptions are to be narrowly construed." - See paragraph 39.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - Ruby's requests for personal information under the Privacy Act were denied by, inter alia, the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS) - When DEA and CSIS received requests for personal information from certain information banks not designated as exempt banks under s. 18 of the Act, their standing practice was to neither confirm nor deny the existence of the information requested - The Federal Court of Canada, Trial Division, held that this practice was permitted by s. 16(2) of the Privacy Act - See paragraphs 48 to 52.

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - Section 26 of the Privacy Act provided a mandatory exemption, directing refusal to disclose information about another individual (i.e., not the requester), unless the information might be released in the circumstances provided by s. 8(2) - Section 8(2)(m) referred to circumstances where the public interest in disclosure clearly outweighed any invasion of privacy that could result from the disclosure - The Federal Court of Canada, Trial Division, rejected the submission that every reference to another individual had to be considered in relation to s. 8(2)(m) before the head of the institution refused to disclose it - See paragraph 58.

Crown - Topic 7215

Examination of public documents - Freedom of information - Bars - Disclosure where public interest outweighs risk of harm - [See Crown - Topic 7206 ].

Crown - Topic 7220.06

Examination of public documents - Freedom of information - Bars - Information obtained in confidence from another government - Section 19 of the Privacy Act provided a mandatory exemption, directing refusal to disclose information obtained in confidence from another government, foreign or domestic, or from an international organization of states, unless that government or organization consented to disclosure or made the information public - A judicial review applicant submitted that proper exercise of the discretion to release such information on consent of the other government dictated that consent be sought, before the head of an institution could seriously rely on the statutory direction not to disclose the information - The Federal Court of Canada, Trial Division, rejected the submission - See paragraph 57.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review - Standard of review - The Federal Court of Canada, Trial Division, noted that under the Privacy Act most exemptions from disclosure were discretionary, i.e., the head of the institution "may refuse to disclose" information - See paragraph 30 - The court stated that "... unless a ground for questioning the exercise of discretion is raised by the applicant, this court, in examination of documents to review decisions to withhold information, relies upon the public officer, the head of the institution or his delegate, in meeting the public duty to exercise discretion properly. Of course, if the exercise of discretion appears on its face to be perverse the court may find reason itself to question the exercise of discretion. Absent that or a ground raised by the applicant, the court assumes the exercise of discretion is proper." - See paragraph 32.

Crown - Topic 7283

Examination of public documents - Freedom of information - Practice - Evidence - Ex parte evidence - Ruby was refused access to personal information banks maintained by the Royal Canadian Mounted Police (RCMP), the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS) (respondents) - Ruby applied for judicial review - The respondents brought motions requesting orders for the filing of confidential or secret supplementary affidavits, with information requested but not released, and with explanation of claims to exemption from disclosure - Ruby objected to the filing of evidence ex parte - The Federal Court of Canada, Trial Division, rejected the objection - See paragraphs 23 to 27.

Crown - Topic 7285

Examination of public documents - Freedom of information - Practice - Costs - Ruby was refused access to personal information banks maintained by the Royal Canadian Mounted Police (RCMP), the Department of External Affairs (DEA) and the Canadian Security Intelligence Service (CSIS) - He applied for review of the refusals under s. 41 of the Privacy Act - Subsequently, the RCMP and CSIS released some of the information - The Federal Court of Canada, Trial Division, dismissed Ruby's applications for judicial review - However, the court refused to award costs to the respondents where the impetus for the late disclosures was Ruby's initiation and continuation of the applications for judicial review - Further, Ruby was entitled to costs where the applications raised important new principles in relation to the Act.

Practice - Topic 7049

Costs - Party and party costs - Entitlement to party and party costs - Self-represented lawyer - A lawyer's requests for information under the Privacy Act were refused - He applied for judicial review - The Federal Court of Canada, Trial Division, awarded costs to the applicant/lawyer, but limited costs to disbursements and to fees incurred for other counsel representing the applicant/lawyer - See paragraph 77.

Cases Noticed:

Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134; 113 F.T.R. 13; 136 D.L.R.(4th) 74 (T.D.), refd to. [para. 21, footnote 1].

Ruby v. Canada (Solicitor General) (1994), 80 F.T.R. 81 (T.D.), refd to. [para. 21, footnote 1].

Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; 49 F.T.R. 161; 86 D.L.R.(4th) 281 (T.D.), refd to. [para. 27, footnote 2].

Canadian Jewish Congress v. Minister of Employment and Immigration, [1996] 1 F.C. 268; 102 F.T.R. 30 (T.D.), refd to. [para. 27, footnote 2].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147; 6 Admin. L.R.(2d) 54 (T.D.), affd. (1993), 154 N.R. 319; 13 Admin. L.R.(2d) 304 (F.C.A.), refd to. [para. 30, footnote 3].

Canada Packers v. Canada (Minister of Agriculture), [1989] 1 F.C. 47; 53 D.L.R.(4th) 246; 87 N.R. 81 (F.C.A.), refd to. [para. 33, footnote 4].

Vienneau v. Canada (Solicitor General), [1988] 3 F.C. 336; 24 C.P.R.(3d) 104 (T.D.), refd to. [para. 41, footnote 10].

Zanganeh v. Canada (Canadian Security Intelligence Service), [1989] 1 F.C. 244; 20 F.T.R. 100; 50 D.L.R.(4th) 747 (T.D.), refd to. [para. 52, footnote 13].

Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; 98 N.R. 126; 61 D.L.R.(4th) 342 (F.C.A.), consd. [para. 77, footnote 19].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 8(2) [para. 58]; sect. 16(2) [para. 48]; sect. 19, sect. 26 [para. 56, footnote 14]; sect. 48, sect. 49 [para. 40, footnote 8]; sect. 52 [para. 70].

Counsel:

Jill Copeland, for the applicant;

Barbara McIsaac, Q.C., for the respondent.

Solicitors of Record:

Ruby Edwardh, Toronto, Ontario, for the applicant;

McCarthy Tetrault, Ottawa, Ontario, for the respondent.

These applications were heard on February 3, 1997, by MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on November 25, 1997.