Summary of reasons on cases in the annual report 2004-2005

The Attorney General of Canada v. H.J. Heinz Co. of Canada Ltd. and the Information Commissioner of Canada,
2004 FCA 171, A-161-03, Federal Court of Appeal, Desjardins J.A., Nadon J.A., Pelletier J.A.,
reasons for judgment by Nadon J.A., April 30, 2004

This was an appeal brought by the Attorney General of a decision of the Application Judge which allowed a third party, Heinz, to raise an exemption other than section 20 in the context of a proceeding brought pursuant to section 44 of the Access to Information Act. The Information Commissioner sought and obtained intervenor status for the purpose of the hearing of the appeal.

On June 16, 2000, a request for information was made to the Canadian Food Inspection Agency (hereinafter "CFIA"). Pursuant to section 27 of the ATIA, CFIA advised the third party, Heinz, of its intention to disclose information requested under the Access to Information Act and, after receiving representations from Heinz, informed Heinz of its intention to disclose requested records, subject to certain redactions.

In turn, Heinz applied for judicial review of CFIA’s decision to release the requested records pursuant to section 44 of the ATIA. In its Notice of Application, the sole exemption raised by Heinz was the purported application of section 20 of the ATIA. Subsequently, and after obtaining a broad confidentiality order, Heinz made written and oral arguments raising, in addition to section 20, the personal information exemption found at section 19.

The Application Judge concluded that portions of the records intended to be disclosed be redacted based on subsection 20(1) of the Act. However, more notable, is the Application Judge’s conclusion that a third party can invoke section 19 as a basis for refusal within the context of a section 44 proceeding. In reaching this conclusion, the Application Judge reasoned that the decision in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4^th) 575 (F.C.A.) was binding.

At issue is whether a third party within the meaning of the Access to Information Act, may raise an exemption other than subsection 20(1) within the context of section 44 Application for Judicial Review.

Likewise, at issue is a novel argument raised at the hearing of the appeal, namely that the Federal Court of Appeal is bound by the principle of stare decisis to its previous ruling in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4^th) 575 (F.C.A.).

The Attorney General argued that only when records fall within the purview of section 20 do the notice provisions of section 27 come into play and that the third party’s entitlement to make submissions is limited to why the records intended to be released should not be disclosed based on the section 20 exemption.

Similarly, the Information Commissioner, as intervenor, argued that:

Further, the Information Commissioner submitted that the effect of allowing third parties to raise exemptions other than those found in section 20 would be to circumvent the protection given by the ATIA to the access requester. For example: the requester would be denied inter alia the right to request an investigation by the Information Commissioner and/or the right to commence judicial review proceedings under sections 41 and 42.
[paragraph 30]

In turn, Heinz cited as authority the decision in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4^th) 575 (F.C.A.), arguing that the court was bound by the principle of stare decisis to accept that section 44 does not preclude raising exemptions other than section 20 of the ATIA.

In turn, the Attorney General pointed to the Court of Appeal’s decision in Saint John Ship Building Ltd. v. Canada (1990), 107 N.R. 89 and invited the Federal Court of Appeal to reconsider the decision in Siemens.

After reviewing the Memoranda of Fact and Law filed in Siemens, the Federal Court of Appeal was satisfied that the issue of whether a third party could, on a section 44 application, seek to prevent the disclosure of records on the basis of exemptions other than those contained in subsection 20(1) of the Act was clearly before the court in Siemens. [paragraph 52]

The court noted that the ". . . Court has clearly stated that we will not overrule a prior decision unless the decision is manifestly wrong, i.e. that the Court overlooked a relevant statutory provision or a case that ought to have been followed." [paragraph 54]

While the court indicated that it perceived as very appealing and forceful the argument that, in a section 44 application, a third party’s right to object to disclosure of records is limited to the records found in subsection 20(1) of the Act, the court concluded that the decision in Siemens was decisive of the issue and could not be distinguished from the case at bar. Further, the court held that "it cannot be said that the court’s decision in that case [Siemens] is "manifestly wrong". [paragraph 56]

Based on the foregoing, the Court of Appeal dismissed the Attorney General’s appeal with costs.

The Attorney General of Canada has sought and successfully obtained leave to appeal to the Supreme Court of Canada on December 17, 2004 (SCC file 30417). The Information Commissioner was granted leave to intervene in this appeal.