[1996] 3 F.C. 609
T-978-95
Privacy Commissioner of Canada (Applicant)
v.
Canada Labour Relations Board (Respondent)
and
The Public Service Staff Relations Board, the Human Rights Tribunal, the Canadian International Trade Tribunal, and the National Transportation Agency of Canada (Intervenors)
Indexed as: Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (T.D.)
Trial Division, Nöel J.—Ottawa, June 12 and August 12, 1996.
Administrative law — Application under Privacy Act for review of CLRB refusal to disclose members’ notes made at hearing — Privacy Act, s. 22(1)(b) exempting personal information from disclosure where could reasonably be injurious to enforcement of any law in Canada — Notes exempt from disclosure under s. 22(1)(b) — Adjudicative privilege, judicial independence reviewed — Application to administrative tribunals requesting from Court enforcement of rules of natural justice — Disclosure of notes revealing decision-making process of CLRB members, compromising CLRB’s operations to extent reasonable expectation of probable harm to performance of statutory function by removing tool essential to performance of duty, requiring CLRB to retain personal information in notes for two years — Conclusion supported by s. 119, affording CLRB members immunity from testifying.
Judges and Courts — Application under Privacy Act for review of CLRB’s refusal to disclose members’ notes made at hearing — Notes made by judge at hearing within adjudicative privilege as revealing judge’s mental processes — Necessity judges able to make notes free from fear notes subject to subsequent disclosure for purposes other than those intended — Liberty of judge to decide case essence of judicial independence — Requires absence of interference by outsider with way in which judge arrives at decision — Application of judicial independence principles imported into administrative law by Court enforcement of rules of natural justice.
Labour relations — Bus driver complaining to CLRB not fairly represented by Union — CLRB dismissing complaint — Bus driver making personal information request under Act — Notes made by Board members at hearing withheld as aide-memoire of quasi-judicial tribunal, not under Board control — Application to F.C.T.D. under Privacy Act for review of refusal — Courts enforcing rules of natural justice re: CLRB under Code’s judicial review mechanism, Federal Court Act, ss. 28, 18.1 — Court must ensure Board having freedom to decide independently, free from outside interference — Operations of CLRB, discharge of statutory duties compromised if members’ mental processes revealed by disclosure of notes — Code s. 119 (CLRB members not required to testify in civil action) illustrating Parliamentary intent of shielding CLRB members from intrusions into thought processes — Notes not under control of CLRB — Were revealed to Commissioner on “without prejudice” basis, upon members’ consent.
Privacy — Application under Act for review of CLRB refusal to disclose members’ notes taken at hearing — Notes running commentary of hearing, author’s comments — Neither Canada Labour Code nor Board policy regulating creation, maintenance, disposal of notes — Privacy Act, s. 22(1)(b) exempting personal information from disclosure where could reasonably be injurious to enforcement of any law in Canada — Application dismissed — (1) Notes exempt from disclosure under s. 22(1)(b) — Reasonable expectation of probable harm from disclosure as removing tool essential to performance of statutory function, requiring CLRB to collate, retain personal information in notes for two years — (2) Notes not under “control” of CLRB within s. 12(1)(b) (right of access to personal information under control of government institution).
This was an application by the Privacy Commissioner for review of the Canada Labour Relations Board’s (CLRB) refusal to disclose notes taken by Board members during the hearing of a complaint that a workman had not been fairly represented by his union. The notes were a point form running commentary of the hearing with occasional comments by the authors. There is no requirement either in the Canada Labour Code or Board policy or procedure pertaining to the creation, maintenance and disposal of notes taken by members during a public hearing. A privacy officer reviewed the notes “without prejudice” to the CLRB’s representations and concluded that they contained personal information about the complainant who had appeared before the Board and who had originally requested the information.
Privacy Act, paragraph 12(1)(b) gives every Canadian citizen or permanent resident a right of access to “any other personal information about the individual under the control of a government institution”. Paragraph 22(1)(b) provides that the head of a government institution may refuse to disclose any personal information requested where disclosure could reasonably be expected to be injurious to the enforcement of any law of Canada. The CLRB submitted that requiring disclosure of the notes of Board members “could reasonably be expected to be injurious to the enforcement of any law in Canada” within the meaning of paragraph 22(1)(b) because it would interfere with the independence and intellectual freedom of quasi-judicial decision makers acting under the Canada Labour Code by revealing their personal decision-making processes and by causing them to alter the manner in which they arrive at decisions. It also submitted that the notes were not information within its “control” within the meaning of Privacy Act, section 12.
The issues were: (1) whether the notes were exempt under paragraph 22(1)(b); (2) whether the notes contained “personal information”; and (3) whether the notes were “under the control” of the CLRB, and alternatively, whether they should be under Board control.
Held, the application should be dismissed.
The notes revealed some of the thought processes and the decision-making processes of the CLRB members, in so far as the comments respecting the credibility of witnesses or the cogency of evidence presented by the parties at a hearing reflect the personal reactions of the member to the evidence and submissions of the parties, and in so far as these notes are said to be an essential part of the Board member’s decision-making process.
The members of the CLRB are the ultimate triers of fact in matters that come before them under the Code, and their determinations on questions of law falling within the jurisdiction conferred upon them by the Code were final.
The notes taken by a judge during a hearing are within the adjudicative privilege as they may reveal the judge’s mental processes in arriving at a decision over and beyond what is revealed by the reasons given for the decision. By their nature, notes are intended to record for future use the thought process of a judge on specific points as the hearing unfolds. Because ongoing impressions are important and memories fade, judges must be able to take notes free from any intrusion and in particular, free from the fear that the notes could thereafter be subject to disclosure for purposes other than that for which they were intended. A judge must have total freedom as to what is noteworthy, and the certainty that no one can question his wisdom in this regard. To allow hearing notes to be used by others for purposes other than that for which they were intended would fundamentally impede the use of a tool that is essential to the judiciary, namely the ability and freedom to note matters of one’s choice as the hearing unfolds for the sole and exclusive purpose of assisting the judge in arriving at the correct decision. Complete liberty of individual judges to decide the cases that come before them is the very essence of the principle of judicial independence. Complete liberty to decide can only exist if the judge is entirely free from interference in fact or attempted interference by any “outsider” with the way in which the judge conducts the case and makes his or her decision.
The principles for judicial independence have been applied to administrative tribunals which settle disputes and determine the rights of parties. They were imported into the sphere of administrative decision-making through the enforcement by the courts of the rules of natural justice. Courts will enforce the rules of natural justice in so far as the CLRB is concerned via the judicial review mechanism established by the Code, section 22 and Federal Court Act, sections 28 and 18.1. While judicial review will sometimes require a court to closely examine the internal aspects of the decision-making process when confronted with “valid reasons for believing that the process followed did not comply with the rules of natural justice”, and while, to that extent, administrative tribunals cannot rely on deliberative secrecy to the same extent as courts, there is no other principle or authority which would authorize an intrusion into the thought process of a decision maker beyond what is revealed by the reasons. To ensure that administrative tribunals make their decisions in accordance with the rules of natural justice, the Court must ensure that the tribunal possesses the freedom to decide matters independently, without interference from anyone at any time. Regulated and systematic intrusions by outsiders into the thought process of a decision maker as it may be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.
(1) The respondent met the burden placed upon it by paragraph 22(1)(b) and established that disclosure of the notes, by revealing the mental processes and ultimately, the decision-making processes of its members, would compromise its operations. The workings of the CLRB as an adjudicative tribunal called upon to dispose of substantive rights would be impeded to the point that a reasonable expectation of probable harm to the performance of its statutory functions under the Code would result from the requested disclosure. The regulated disclosure of hearing notes under the Privacy Act would take away from the CLRB a tool that is essential to the performance of its duty. If the notes are not exempt from disclosure, any “personal information” contained therein, including all expressions of opinions pertaining to litigants, lawyers and witnesses would, by law, have to be collated and retained in an information bank by the Board for at least two years. That prospect raised a reasonable expectation of probable harm to the performance by the Board of its duties under the Code.
Further support for this conclusion is found in Code, section 119 which provides that CLRB members cannot be required to give evidence in a civil action or other proceeding respecting information obtained in the discharge of their duties. Section 119 illustrates Parliament’s intent to shield CLRB members from intrusions into the thought processes underlying their decisions.
(2) The applicant argued that since the Access Act exempts “accounts of consultations or deliberations” involving officers of a government institution, but the Privacy Act does not, an inference must be drawn that adjudicative privilege was not intended to guard information from disclosure under the Privacy Act. It is more likely that the legislator did not envisage that accounts of consultations and deliberations were susceptible of containing the type of “information” targeted by the Privacy Act . The term “personal information” encompasses “information” of a personal nature, including that which relates to matters enumerated in section 3, but also extends to the “views” or “opinions” held by an individual about someone else. But it is doubtful that anything expressed by a decision maker in the course of consultations or deliberations is “personal information” about an individual because nothing recorded by a decision maker in the course of deliberations is intended to inform. Furthermore, whatever the “views” or “opinions” expressed by the decision maker, they are not “views” or “opinions” of the decision maker, unless and until they are in the eventual reasons for the decision. The Privacy Act is aimed at information that is capable of being used as such. Recorded consultations and deliberations are neither. The Act limits the collection of private information by government to what is necessary for its operations, and where such information must be collected, it requires it to be “as accurate, up-to-date and complete as possible”. To ensure this result, the individual is given access to information relating to him or her and is given the right to make corrections, or to insist that notations reflecting his or her point of view be attached to such information. Accounts of consultations and deliberations do not lend themselves to notations and corrections.
(3) The notes were not “under the control” of the CLRB. (i) The mere fact that the CLRB was able to produce the notes for review did not establish its control over them. The notes were produced for review on a “without prejudice” basis in the hope that the Commissioner might abandon their pursuit. This review occurred after the respondent had obtained the consent of the members. In these circumstances, for the Commissioner to argue that the Board had control over these notes bordered on deception. (ii) In enacting the Access Act and Privacy Act, Parliament intended to make accessible information coming under the control of a government institution in the course of the fulfilment of its statutory functions. There is no requirement either in the Canada Labour Code, or in the CLRB policy or procedure touching upon the notes. The notes are viewed by their authors as their own. The CLRB members are free to take notes as and when they see fit, and may simply choose not to do so. The notes are intended for the eyes of the author only. The members maintain responsibility for the care and safe keeping of the notes and can destroy them at any time. Finally, the notes are not part of the official records of the Board and are not contained in any other record keeping system over which the CLRB has administrative control. That records are left or kept on the government institution’s premises does not bring the records within the “control” of the institution. What is contemplated is control in any form so long as it is exercised in a lawful fashion. It is inconceivable that the Privacy Act could compel a government institution to intrude into the records of a third party in breach of that person’s right to privacy in order to satisfy the privacy rights of others. (iii) The CLRB does not purport to have and has not exercised either de facto or de jure control over the notes. It has not made regulations asserting any form of control over the notes of its members because such a course of action was not considered to be conducive to the proper performance of its duties. It is doubtful that the CLRB’s rule making authority relating to “procedure for its hearing” authorizes the imposition of note-taking on CLRB members or the exercise of some other form of control over them. There was no basis for suggesting that the CLRB was somehow failing to exercise jurisdiction over the notes.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111, Sch. I, ss. 2, 19(1), 20.
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 3 “record”, 4, 7, 10, 16, 19, 20, 21, 30, 37, 41, 42, 54, 70, 72, Sch. I (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 274; c. 47, s. 52).
Architects Act, 1984, S.O. 1984, c. 12, s. 43.
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 9, 10, 15, 16, 18, 22 (as am. by S.C. 1990, c. 8, s. 56), 24(4), 34(6) (as am. by S.C. 1991, c. 39, s. 1), 37, 50, 69, 94, 95, 96, 97 (as am. idem, s. 2), 98, 99 (as am. idem, s. 3), 119.
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 2(b).
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 23.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5), 28 (as am. idem, s. 8).
Federal Court Rules, C.R.C., c. 663, R. 1610 (as enacted by SOR/92-43, s. 19).
Highway Traffic Act, R.S.O. 1970, c. 202.
Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.
Judges Act, R.S.C. 1970, c. J-1.
Labour Relations Act, R.S.O. 1990, c. L.2, s. 111.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3 “administrative purpose”, “personal information”, 4, 6, 7, 8 (as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. 1, s. 12), 10 (as am. idem), 12, 18, 21, 22, 29 (as am. by S.C. 1992, c. 21, s. 37), 33, 35, 37(1), 41, 42, 53, Sch. I.
Privacy Regulations, SOR/83-508, s. 4.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 108 (as am. by S.C. 1992, c. 54, s. 77).
CASES JUDICIALLY CONSIDERED
APPLIED:
Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (1989), 23 C.P.R. (3d) 297; 24 F.T.R. 62 (T.D.); Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 [1988] 5 W.W.R. 151; (1988), 59 Alta. L.R. (2d) 353; 18 F.T.R. 15 (T.D.); Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (1995), 69 C.P.R. (3d) 441; 179 N.R. 350 (C.A.); MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. 688; 247 A.P.R. 1; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (1988), 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); Dagg v. Canada (Minister of Finance), [1995] 3 F.C. 199 (1995), 124 D.L.R. (4th) 553; 181 N.R. 139 (C.A.); Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (1988), 31 Admin. L.R. 103; 20 F.T.R. 314 (T.D.); Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527 (1994), 115 D.L.R. (4th) 265; 77 F.T.R. 241 (T.D.); Bombardier v. Public Service Commission of Canada (1990), 41 F.T.R. 39 (F.C.T.D.); Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (1988), 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 8 (C.A.); Kaiser v. Canada (Minister of National Revenue — M.N.R.), [1995] F.C.J. No. 926 (T.D.) (QL); Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; (1995), 95 CLLC 210-009; 177 N.R. 1; Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; Beauregard v. Canada, [1986] 2 S.C.R. 56; (1986), 30 D.L.R. (4th) 481; 26 C.R.R. 59; 70 N.R. 1; R. v. Lippé, [1991] 2 S.C.R. 114; (1990), 61 C.C.C. (3d) 127; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 177 N.R. 325; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169; Douville c. Commission de la santé et de la sécurité du travail du Québec, [1993] C.A.I. 266 (Comm. d’accès à l’inf.); Agnew v. Ontario Assn. of Architects (1987), 64 O.R. (2d) 8; 30 Admin. L.R. 285; 26 O.A.C. 354 (Div. Ct.); Ellis-Don Ltd. v. Ontario Labour Relations Board (1994), 16 O.R. (3d) 698; 110 D.L.R. (4th) 731; 24 Admin. L.R. (2d) 122; 94 CLLC 14,012; 68 O.A.C. 216; [1994] O.L.R.B. Rep. 113 (Div. Ct.).
CONSIDERED:
Gilles Charlebois (1993), 91 di 14 (C.L.R.B.); Charlebois v. Amalgamated Transit Union, Local 279 et al. (1994), 169 N.R. 144 (F.C.A.); Charlebois v. Amalgamated Transit Union Local 279, [1995] 1 S.C.R. vi.
REFERRED TO:
U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; (1981), 127 D.L.R. (3d) 1; 38 N.R. 541.
AUTHORS CITED
Dictionary of Canadian Law, by Daphne A. Dukelow and Betsy Nuse. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991, “control”.
Universal Declaration on the Independence of Justice, adopted by the First World Conference on the Independence of Justice, Montréal, June 10, 1983. In Shimon Shetreet and Jules Deschênes, eds., Judicial Independence: The Contemporary Debate. Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1985.
Webster’s New World Dictionary of the American Language, 2nd college ed. New York: Simon and Schuster, 1985, “Information”, “Opinion”.
APPLICATION under the Privacy Act for review of the CLRB’s refusal to disclose notes taken by Board members during the hearing of a complaint. Application dismissed.
COUNSEL:
Timothy D. Ray, Holly A. Harris and Martine Nantel for applicant.
Bernard Chernos, Q.C., Robert A. Watson and Maryse Tremblay for respondent.
David W. Scott, Q.C., Peter B. Annis and M. Martine Richard for intervenor Public Service Staff Relations Board.
Randall J. Hofley for intervenor Human Rights Tribunal.
Joël J. Robichaud for intervenor Canadian International Trade Tribunal.
Alix Jenkins for intervenor National Transportation Agency of Canada.
SOLICITORS:
Beament Green Dust, Ottawa, and Information and Privacy Commissioner of Canada, Legal Department, Ottawa, for applicant.
Chernos, Conway, Toronto, for respondent.
Scott & Aylen, Ottawa, for intervenor Public Service Staff Relations Board.
Stikeman, Elliott, Ottawa for intervenor Human Rights Tribunal.
Canadian International Trade Tribunal, Legal Department, Ottawa, for intervenor Canadian International Trade Tribunal.
National Transportation Agency of Canada, Legal Department, Hull, for intervenor National Transportation Agency of Canada.
The following are the reasons for order rendered in English by
Noël J.: This is an application pursuant to section 42 of the Privacy Act[1] for review by the Federal Court of the refusal by the Canada Labour Relations Board (the CLRB or the Board) to disclose notes taken by CLRB members (the notes) during a hearing as requested by the Privacy Commissioner (the Commissioner). The Public Service Staff Relations Board (the PSSRB), the Canadian Human Rights Tribunal (the CHRT), the Canadian International Trade Tribunal (the CITT) and the National Transportation Agency of Canada (the NTA) were granted intervenor status in this application.
I. Background
On February 10, 1992, Mr. Gilles Charlebois, a bus driver who had been employed almost 11 years by the Ottawa-Carleton Regional Transit Commission (OC Transpo) until his dismissal on June 12, 1991, filed a complaint with the Canada Labour Relations Board pursuant to section 97 of the Canada Labour Code.[2] In his complaint, Mr. Charlebois alleged that his union, the Amalgamated Transit Union, Local 279 (the ATU) had failed to fairly represent him and had thus violated section 37 of the Code[3] in its handling of certain grievances and particularly in its decision not to arbitrate his dismissal by OC Transpo. The ATU’s decision not to refer Mr. Charlebois’ grievances in respect of lost wages and for dismissal from employment to arbitration was made by a majority vote of the members cast by secret ballot at a general meeting of the ATU.
The Board, composed of Vice-Chairman Thomas M. Eberlee and members Robert Cadieux and Mary Rozenberg, heard Mr. Charlebois’ complaint on September 30, October 1 and October 23, 1992. A number of witnesses, including Mr. Charlebois, testified before the Board. The Board heard evidence in relation to the events surrounding the handling by the ATU of grievances filed by Mr. Charlebois beginning in December 1990, the circumstances arising in the course of and out of the November 12, 1991 general meeting of the Union and its continuation the next morning, and the membership’s decision not to refer the grievances to arbitration. In dismissing Mr. Charlebois’ complaint, the Board concluded as follows:
… the onus is on the complainant to bring the Board to conclude, on a balance of probabilities, that the evidence shows the union’s conduct was contrary to section 37.
In this case, the evidence is simply not present. As has been stated, the union’s handling of the grievances up to November 12 cannot be criticized. The conduct of the union leadership in the union meetings on November 12 and 13 and the carrying out of the secret ballot vote were both within proper bounds. The union membership decided not to send the grievances to arbitration. This is why Mr. Charlebois filed his complaint. If the membership had voted in the other direction, Mr. Charlebois would not have come before the Board. But nobody would have been any the wiser about why that was the outcome than they are about why the membership said “no” to him. When the whole context is examined in this case, there is no real evidence that the union’s decision was based upon reasons contrary to section 37.[4]
On February 10, 1993, Mr. Charlebois made a personal information request under the Act. Mr. Charlebois was seeking information from the Canada Labour Relations Board respecting the hearing by the CLRB into the complaint he had filed. He requested:
Copy of any and all files, correspondence, documentation, reports, etc; including notes of; telephone conversations with or about [the appellant], records of meetings, hearings, investigations, etc. regarding [the appellant] at which he was or was not present, transcripts, electromagnetic recordings, facsimile transmissions, performance appraisals, position descriptions in any tangible form held in any location pertaining to [the appellant], of all members of the panel, and to include all witnesses, legal counsel pertaining to my entire complaint, C.L.R.B. File #745-4164, up to and including, Board’s decision # 989.
This request entails any and all retrievable records, with a full and complete disclosure, with no exclusions, of all personal and non-personal information, and all support records, related/relevant, inclusive, but not limited to.[5]
In response to Mr. Charlebois’ request, the CLRB sent him copies of the entire contents of its file dealing with his complaint. In an accompanying letter dated March 15, 1993, Ms. Ruth Smith, the Board’s Privacy Coordinator, stated that notes of telephone conversations, performance appraisals, position descriptions, transcripts and electromagnetic recordings were not forwarded to Mr. Charlebois because they did not exist. With respect to the notes of the Board members, the Privacy Coordinator stated:
As to personal notes, any personal notes taken by members of the panel that adjudicated at the hearing are considered to be `aides-memoires’ of a quasi-judicial tribunal. As they are not used for an administrative purpose, they are not under the Board’s control. This interpretation has been adopted by the Privacy Commissioner in a case concerning the Public Service Staff Relations Board, our counterpart in the public sector.[6]
On April 6, 1993, Mr. Charlebois filed a complaint with the Privacy Commissioner, on the grounds that he had not received from the CLRB all his personal information.[7] By letter dated April 25, 1994, the Commissioner advised the Chairman of the CLRB, Mr. J. S. W. Weatherill, that he had changed his position that Board members’ notes were personal to the members and were not information under the control of the CLRB:
This complaint, as well as others similar in nature, have forced me to reconsider this position, which I find to be inconsistent with the approach I believe I must take on the accessibility of personal information held by government institutions. The notes of CLRB Board members are not personal to the Board member. They are rather notes which were taken as part of the Board member’s functions and which can be used to make decisions affecting an individual. The CLRB, unlike the Courts, is subject to the Privacy Act and such notes are clearly under the control of the CLRB. Section 3 of the Act defines personal information as “information about an identifiable individual that is recorded in any form ….” I am unable to identify any provision in the Act which excludes or exempts, expressly or implicidly [sic] the notes of Board members from the Act. These notes are therefore subject to the Privacy Act as other information under CLRB control.
It is my understanding from your officials, that notes taken by two of the three Board members during the complainant’s hearing do exist. I am advised that the third Board member’s term has expired and that his notes have been destroyed. These notes should therefore be reviewed and processed in response to the complainant’s Privacy Act request.[8]
The Commissioner then invited the CLRB to make formal representations to the Privacy Commission pursuant to subsection 33(2) of the Act.[9]
In a letter dated June 17, 1994, the Chairman of the CLRB responded to the Commissioner’s invitation by providing the CLRB’s formal representations in relation to Mr. Charlebois’ complaint. The CLRB made two principal submissions. Firstly, the CLRB stated that the notes taken by Board members during public hearings were not information within the “control” of the CLRB within the meaning of section 12 of the Act. In addition, the CLRB submitted that a different interpretation of section 12 would deprive an individual of the right to a fair hearing in accordance with the principles of fundamental justice guaranteed by the Canadian Bill of Rights [R.S.C., 1985, Appendix III]. The Chairman of the Board made the following statements with respect to the nature of the CLRB as an administrative tribunal and in relation to the practice of the Board with respect to notes taken by Board members:
… the Act applies to a wide variety of administrative tribunals. Some of them are regulatory bodies which have the mandate to apply the policies of the government of the day. Others, like the selection committees in a staffing process, are composed of public servants. Finally, some tribunals, like the Board, are quasi-judicial tribunals which are called upon to exercise their adjudicative functions more or less like a court of justice, i.e. in an impartial and independent manner.
It is important to point out that the notes requested by Mr. Charlebois were not created by an officer or employee of the Board, but by the Board members. Board members are Governor in Council appointees holding their office during good behaviour for a specific term not exceeding ten years for the Chairman and the Vice-Chairmen and five years for the members.
In addition, there is no requirement in the Code, or in the position profile of the members or in Board policy or procedure pertaining to the creation, maintenance and disposal of notes by the members during a public hearing. Some members of a panel may choose to take notes and some may choose not to do so. The notes taken serve as an aide-mémoire for the preparation of the member’s decision.
The members also determine the form and the content of their notes. These notes are not minutes of the hearing and are for the exclusive use of the member. They contain the information determined by the member to be relevant to the issues or useful in order to reach his/her decision. The member is free to report all or only part of the testimony or argumentation presented by the parties and may indeed add personal comments as to the credibility of a witness or to the quality of the argumentation.
At all times during the hearing and subsequently, the members are in possession, custody and control of their personal notes; no other person is allowed to see, read, or use their notes without their consent. Furthermore, the Board members maintain responsibility for the care and safekeeping of their personal notes and can destroy them without getting the approval of the Board. Their notes are not part of the Board’s official record and are not contained in any other record keeping system over which the Board has administrative control.
The personal notes of the members may or may not be kept on the Board’s premises. Although the Board may have physical possession of the personal notes of the members, it is bare possession only which does not in itself amount to “control” for the purposes of the Privacy Act. Since the Board has no right or authority to deal with the members’ notes or to regulate their use, and since it has no responsibility whatsoever for their protection and disposal, this does not amount to “control”. In fact, the Board never knows if notes have been taken or not.
Given these circumstances, it is the Board’s position that the notes taken by the panel members during the hearing of Mr. Charlebois’ complaint and in the exercise of their quasi-judicial functions do not fall within the “control” of the Board and, therefore, are not accessible under the Privacy Act ….[10]
In a letter dated July 12, 1994, the Commissioner acknowledged receipt of the CLRB’s representations. The Commissioner expressed his disagreement with the CLRB’s position in the following words:
As I understand your representations, you consider that notes taken by members of the Canada Labour Relations Board during its hearings are not subject to the Privacy Act and if they are, the right to a fair hearing would be denied.
I can think of nothing which more appropriately advances the notion of a fair hearing in accordance with principles of fundamental justice than the right to know the information upon which a decision affecting one’s rights and obligations is made. I am unable to find anything in the Privacy Act to the contrary, or which supports your view that the Act should not apply.
These notes are recorded by panel members in the performance of their official functions and not in their personal capacity and clearly are capable of constituting information about an individual that is used in a decision making process that directly affects the individual, as provided in the Privacy Act. Indeed, had Parliament intended otherwise, it would have omitted the Board from the schedule to the Act or would have made such other specific reference to these notes as a special exemption as in the Québec legislation to which you allude.
Because the Board does not as a matter of course provide a transcription of its proceedings, these notes may take on much significance for the individual concerned. In saying this, I do not mean to suggest that were a transcribed record available, the notes would be excluded from the Act but rather that in the absence of a formal record the individual cannot be faulted for seeking other means to know the case against him. The Privacy Act supports the right of an individual to know what is being said and recorded about him.
Nor, although you do not mention this specifically in your letter, can I imagine that making these notes available to the individual would hamper the Board’s proceedings. To my mind, it could enhance the persuasiveness of the Board’s decision making process and thereby encourage early settlement of the issues.[11]
The Commissioner did concede that there may be some circumstances in which the disclosure of members’ notes could be expected to cause injury. On this matter, the Commissioner stated that:
It is in relation to this last issue primarily that I am writing to you. You intimate at the end of your letter that releasing the information in this case to Mr. Charlebois would harm the administration of the Labour Code and the public interest. You do not specify why this should be so in this particular case.
Perhaps we could agree, without prejudice to your representations, to review the information in this case together to see if the exemption applies. In any event, I would be pleased to receive your further representations on this specific issue.[12]
On or about November 29, 1994, Joyce McLean, a privacy officer, met with Ruth Smith, the CLRB’s Privacy Coordinator, to review the notes of Board members Thomas Eberlee and Mary Rozenberg.[13] In a memorandum to file, Ms. McLean made the following observations with respect to the members’ notes:
Thomas Eberlee’s File (Chairman)
— notes of the Hearing are legible
— appear to be running commentary of the Hearing
— occasional comments by Eberlee (clearly identified as such in margin or in brackets)
…
Mary Rozenber’s [sic] File (Board Member)
— more in point form than Mr. Eberlee’s notes—but legible and understandable
— a running commentary of the Hearing, but perhaps less complete than Mr. Eberlee’s
— very few comments (identified in different colours, or on post-it note)
— two drawings in the margin: daisiesface
Ms. McLean concluded from her review that “the notes contain personal information about Gilles Charlebois.”[14]
By letter dated December 20, 1994, the Chairman of the CLRB confirmed the CLRB’s position that the Act does not apply to notes taken by members of the CLRB in the course of hearings. On February 1, 1995, the Commissioner released the results of his investigation into Mr. Charlebois’ complaint, pursuant to section 35 of the Act.[15] The Commissioner concluded that Mr. Charlebois’ complaint that he had not received all the personal information to which he was entitled was well-founded. The Commissioner held that:
… information taken by a panel member about an individual during the course of his hearing is not prepared by the member in his personal capacity but as part of the member’s official functions. Unlike the Courts, the CLRB is subject to the Act and I must assume, therefore, that this is Parliament’s intention. I can find no provision which excludes or exempts either expressly or by implication this information or the CLRB or its members from the normal operation of the Act. Nor, as I have said in earlier correspondence, can I accept that knowing the information upon which a decision affecting one’s rights and obligations is made will detract from the notion of fundamental fairness. Rather, I believe it will enhance it. Finally, I believe that Parliament has already provided clear and appropriate exceptions to the application of the Act so that it is not necessary to create new ones. The Privacy Act supports the right of an individual to know what is being said and recorded about him or her by the federal institutions it covers. I have no doubt this right is cherished by the individual particularly when decisions are being made about his or her livelihood and there is no formal record of the process. The impact on individual privacy rights when institutions effectively carve out major portions of their operations from the ambit of the Act cannot fail to be a significant one.[16]
In accordance with these conclusions, the Commissioner recommended that the CLRB review and process the panel members’ notes, put in place measures to properly collate and file personal information collected by panel members, retain this information for the minimum two-year period as prescribed by the Privacy Regulations [SOR/83-508], and release the information pursuant to a request under the Act. By letter dated February 10, 1995, the Chairman of the CLRB reiterated the Board’s position that the Act did not apply with respect to members’ notes. On March 29, 1995, the Commissioner reported the results of his investigation to Mr. Charlebois. The Commissioner also sought Mr. Charlebois’ consent to allow him to seek a review of the matter before the Federal Court pursuant to section 42 of the Act.[17] Mr. Charlebois communicated this consent to the Commissioner on April 7, 1995. On May 9, 1995, the Commissioner commenced the present application by filing an originating notice of motion for directions pursuant to section 42 of the Act.
Evidence filed by the parties
In support of its application, the applicant has filed the affidavit of Joyce McLean, a privacy officer employed by the Commissioner. In addition to recounting the sequence of events which occurred between the filing of Mr. Charlebois’ complaint and the filing of this application, the affidavit of Joyce McLean sets out the correspondence between the Chairman of the CLRB and the Commissioner, and that between the Commissioner and the complainant, Mr. Charlebois.
The evidence as to the notes is scarce. The notes themselves were not produced by the Board. The only evidence as to what they actually contain are the observations of the privacy officer who reviewed them.[18] In addition, as the CLRB did not file an affidavit in reply, there is no evidence per se as to the manner in which the notes were kept. However, a lengthy letter of representation dated June 17, 1994 addressed to the Privacy Commissioner by the Chairman of the Board (Exhibit E to the affidavit of Joyce McLean) was made part of the record of the applicant. It contains both argument and assertions of fact as to the manner in which the notes were kept. The Board’s memorandum of argument presents the facts so asserted as being properly before the Court as do three of the four intervenors. The fourth, namely the Public Service Staff Relations Board, made sure this was the case. It filed the affidavit of Mr. Philip Chodos, a deputy chairperson of the PSSRB, wherein Mr. Chodos describes how he makes and uses notes in conducting hearings brought under the Public Service Staff Relations Act.[19] Mr. Chodos also confirms by reference to the said letter that “the points raised [therein] … with respect to the practice and procedure concerning notes of members of (the) Board apply with equal force to the Public Service Staff Relations Board and its members.”[20] All parties to this application including the applicant therefore proceeded on the basis that to the extent that the letter of the Chairman of the CLRB to the Commissioner dated June 17, 1994 asserted facts, these were properly in evidence before me.
At the opening of the hearing of this application, I raised the fact that while the record as filed reveals that the notes were taken by CLRB members during the course of a hearing before the Board, no evidence had been filed concerning the nature of the proceedings before the CLRB. I pointed out to counsel for the parties that without information setting out the context within which the application was brought by the Commissioner, the application records were in my view inadequate for the proper disposition of the application.[21] In response, the respondent, with the consent of all parties, filed a number of documents which I am satisfied provide the proper factual background for the disposition of this application.[22]
II. Arguments
The arguments advanced by the parties are centred around three principal questions:
1. Do the CLRB members’ notes contain “personal information” within the meaning of the Act?
2. If so, are the notes “under the control of” the CLRB within the meaning of the Act, and alternatively, should they be under the control of the Board?
3. If the notes do contain personal information and if they are under the control of the CLRB, has the CLRB established that the information requested is exempt pursuant to paragraph 22(1)(b) of the Act?
1) Is the information contained in the notes “personal information”?
The applicant argues that the definition of “personal information” in the Act is extremely broad, and that the jurisprudence has clearly established that it should be broadly interpreted in a manner consistent with the objective of safeguarding individual identity.[23] The applicant notes that the definition of “personal information” in the Act, i.e., information about an identifiable individual that is recorded in any form, merely enumerates examples of personal information without restricting the generality of the definition. The applicant submits that the members’ notes come within the examples enumerated at paragraphs 3(b), (e), (g) and (i) of the definition.
The respondent argues that “personal information” pursuant to the Act does not extend to the members’ notes, which are personal notations of the CLRB member as to the credibility, evidence and the law presented at the hearing. These personal notes contain tentative observations which may subsequently be determined to be unfounded by the member. The respondent submits that a conclusion that the notes are “personal information” under the Act would amount to an interference with the confidential nature of the decision-making process of a quasi-judicial tribunal, protected by section 119 of the Code, which provides that CLRB members are not required to give evidence in a civil action or other proceeding respecting information obtained in the discharge of their duties. According to the respondent, such a conclusion would also give parties before the CLRB inquisitorial powers over CLRB members contrary to the principle of finality of decisions enunciated in section 22 [as am. by S.C. 1990, c. 8, s. 56] of the Code, the Code’s privative clause.[24]
The CHRT submits that the information contained in the members’ notes falls under two possible categories:
(i) information on the record or information provided at the hearing and contained in the hearing transcript; and
(ii) opinions or comments by the member in respect of information in category (i), including the presentation of such evidence.[25]
The CHRT argues that information referred to in the first category is by its nature available under the Act from sources other than the members’ notes. Information referred to in the second category, however, is not “personal information” under the Act because it does not contain “views or opinions (of the members) about the individual.” Rather, the CHRT submits that opinions or comments in members’ notes are expressed not on the individual qua individual, but on the evidence and law presented at the hearing,[26] and that as a result, the Act was not intended to apply to the members’ notes.
2) Are the notes under the control of the Board?
The applicant makes the following three arguments in support of the conclusion that the CLRB members’ notes are “under the control” of the Board. Firstly, the applicant argues that the fact the notes have been retrieved by the CLRB and reviewed is conclusive of control in this case.[27] Secondly, the applicant submits that the notion of control in the Act should be broadly construed, and that the term “under the control” has been interpreted by the courts as being “in the custody of the government regardless of the means by which that custody was obtained.” In support of this proposition, the applicant relies on the decisions of the Federal Court, Trial Division in Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports[28] and Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs)[29] and on the decision of the Court of Appeal in Canada Post Corp. v. Canada (Minister of Public Works).[30] A third argument advanced by the applicant is that the CLRB has the authority under the Code to regulate its own affairs within the ordinary meaning of control and that this extends to “managing, directing or regulating” information of a personal nature generated or used in the course of performing an administrative function such as the members’ notes. Thus, according to the applicant, the Board could be expected to exercise control over this information, produced as it was by the members during the course of carrying out their official duties.[31]
The respondent and intervenors accept that the term “control” used in paragraph 12(1)(b) of the Act should receive a broad and liberal interpretation, extending to documents under the day-to-day managerial or administrative control of the government institution or under the government institution’s ultimate, immediate, full, partial, transient or lasting control. However, they submit that the evidence establishes that the members’ notes are not controlled by the Board howsoever control be reason-ably defined. This evidence, gleaned from the Chairman of the CLRB’s June 17, 1994 letter to the Commissioner, was succinctly summarized by the PSSRB as follows:
Boards such as the CLRB are quasi-judicial tribunals which are called upon to exercise their adjudicative functions like a Court of Justice, i.e. in an impartial and independent manner; (page 3, paragraph 2)
there is no requirement in the Canada Labour Relations Code; or in the position profile of the members or in Board policy or procedure pertaining to the creation, maintenance and disposal of notes of members during a public hearing; (page 4, paragraph 2)
some members of a panel may choose to take notes and some may chose [sic] not to do so. Notes taken serve as an aide-memoir [sic] for the preparation of the member’s decision; (page 4, paragraph 2)
Board members determine the form and content of their notes which do not constitute minutes of the hearing and are for the exclusive use of the member. They contain the information determined by the member to be relevant to the issue or useful in order to reach his/her decision; (page 4, paragraph 3)
members are free to report all or only part of the testimony or argument presented by the parties and they may add personal comments as to the credibility of a witness or the quality of the argumentation; (page 4, paragraph 3)
members, at all times, remain in possession, custody and control of their personal notes; no other person is allowed to see, read, or use their notes without their consent; (page 4, paragraph 4)
Board members’ notes are not part of the Board’s official records and are not contained in any other record keeping system over which the Board has administrative control; (page 4, paragraph 4)
personal notes may or may not be kept on the Board’s premises. (page 4, paragraph 4).[32]
The respondent and intervenors reject the applicant’s contention that the fact the CLRB produced the members’ notes for review by the privacy officer is conclusive of the CLRB’s control over the notes. They argue that the applicant should not be able to rely upon the production of the notes for review because the Commissioner had agreed that the review would be conducted on a “without prejudice” basis.[33] Furthermore, they submit that in light of the evidence to the effect that Board members maintain responsibility for the care and safekeeping of their personal notes, the only basis upon which the personal notes could have been produced was with the consent of the Board members in order to cooperate with the Commissioner’s investigation.
The respondent and intervenors argue that the members’ notes cannot be characterized as information generated in the course of performing an administrative function or their official duties, as the evidence shows that there was no official requirement on the part of the members to take notes. They submit that the issue of whether documents were created during the course of carrying out an official duty is not relevant to determine whether the government institution has control over them. As quasi-judicial decision makers, the members are required to maintain complete independence over their decision-making process, and must maintain exclusive control over their hearing notes to achieve this independence. In oral argument, the respondent relied on the arguments of the PSSRB that the Act should not impinge on the right to privacy of officers or employees of the government; personal private notes, such as those in the present case, are the private affairs of their creators, and not subject to the control of the institution or release under access requests.[34]
Finally, the respondent and intervenors submit that the notion of “control” in paragraph 12(1)(b) of the Act should be interpreted to avoid absurd consequences and in a manner consistent with the values of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], and in particular, with the right of individuals to a fair hearing in accordance with the principles of fundamental justice provided for by section 7 of the Charter. They argue that the interpretation of “control” urged upon this Court by the applicant granting access to the personal notes of quasi-judicial decision makers would constitute interference, or raise a reasonable apprehension of interference with the independence and intellectual freedom of the decision makers.[35]
3) Do the notes fall within the exemption in paragraph 22(1)(b) of the Act?
The applicant submits that in order for a defence pursuant to paragraph 22(1)(b) of the Act to be successful, the respondent must establish a reasonable expectation of probable harm resulting from disclosure of the information.[36] According to the applicant, the respondent’s statement that providing access to the notes “would reveal the adjudicator’s thinking process and would ultimately harm the administration of the Canada Labour Code and the public interest” is insufficient to bring the notes within the exemption provided by paragraph 22(1)(b). The applicant contends that revealing the thought process of decision makers would promote the notion of a fair hearing by providing litigants with the information on which decisions are based. The applicant argues that in any event, a review of the notes in question indicated that providing the complainant access to the notes would not result in the injury claimed.[37] In addition, the applicant submits that the fact that two Board members raised no objection to having their notes released to the applicant is evidence that these members anticipated no injury from disclosure. Finally, the applicant suggests that in any event, the respondent has not adduced evidence establishing that the disclosure of the Notes would actually reveal the thought process of the Board members.[38]
The respondent submits that the CLRB is a quasi-judicial tribunal which is called upon to exercise adjudicative functions in an impartial and independent manner in much the same way as a court. Granting a right of access to the notes would, according to the respondent, be injurious to the enforcement of the Canada Labour Code in the following ways:
… it would affect the liberty of individual CLRB members to hear and decide the cases that come before them by interfering with the way in which CLRB members conduct their cases and make their decisions. It would discourage the taking of notes, detrimentally affect the manner in which notes were taken, and detrimentally affect the manner in which notes are presently used. It would also discourage free and frank discussions amongst and between the CLRB members and in essence remove from the process of inquiring into and adjudicating upon matters within their jurisdiction the use by CLRB members of aide-memoires. (…) A right of access to the Notes would impair the independence of CLRB members in the same manner that it would individual judges[39].
In its supplementary memorandum of argument, the respondent submits that the notes were taken by the members as part of the adjudication and deliberation process inherent in the CLRB’s exclusive jurisdiction to function as the judicial institution adjudicating federal labour relations matters. The respondent argues that the Supreme Court of Canada has held that independence and impartiality are essential to the exercise of the judicial function, and that to compel testimony from adjudicators about their deliberations and the thought process underlying their decisions constitutes an intrusion that threatens the independence which underlies their impartiality. The respondent submits that only the judiciary may decide whether or not to order production of an adjudicator’s notes, and that such an order may be made only in the context of the judicial review by a court of the adjudicator’s decision. According to the respondent:
To require members’ notes to be disclosed without any judicial review application being brought and without any judicial determination of whether the facts of a particular case require that a tribunal member’s testimonial immunity be displaced “could reasonably be expected to be injurious to the enforcement of any law of Canada” within the meaning of paragraph 22(1)(b) of the Privacy Act.[40]
The PSSRB submits that “insofar as the disclosure of personal notes interferes with the independence and intellectual freedom of quasi-judicial decision makers, it could reasonably be expected to be injurious to the tribunal’s ability to fulfil both its functions and mandate.”[41] According to the PSSRB, such interference would occur in two ways. Firstly, disclosure would interfere with decision makers’ privacy over their personal decision-making process by revealing this process. Secondly, decision makers would likely alter the manner in which they arrive at decisions to avoid challenges or questions arising out of the possible misunderstanding of their notes.[42]
III. Analysis
This application by the Privacy Commissioner for the disclosure of notes taken at a hearing by members of the CLRB raises a number of complex issues. Some are issues of statutory interpretation. For example, do the notes fall within the meaning attributed in the Act to the term “personal information”? If so, can the notes be said to be “under the control of the government institution” as that concept has come to be understood under the Act? In my view, these issues of statutory interpretation do not command a simple solution nor can they be resolved in isolation, because of the more fundamental issue raised by the Commissioner’s application. In essence the Commissioner is disputing the soundness of the long-established principle that decision makers should be free to hear and decide the cases before them without any influence from any outsider for any reason, and of the corollary to this principle, that the decision-making processes of decision makers should not be subjected to any intrusion by outsiders.[43] The requirement of independence has been held by the courts to be a rule of natural justice to which administrative tribunals must adhere subject to the supervision of the courts. Relying on the wide ambit which the legislator has given to the Privacy Act, and the liberal interpretation which the courts have given it, the Commissioner’s position is that Parliament has decided to make the notes of decision makers sitting on administrative tribunals accessible under the Privacy Act, thereby subjugating the long-established protection enjoyed by decision makers against intrusion into the thinking process leading to their decision to the privacy interests of individuals appearing before them.
Keeping the foregoing in mind, I believe it necessary to first place this matter in context by dealing at some length with the fundamental issue pertaining to the effect of the disclosure of the notes on the independence of the members of the CLRB and the related exemption found in paragraph 22(1)(b) of the Act. Prior to doing so, it would be useful to review the statutory scheme under both the Privacy Act and the Access to Information Act[44] and briefly deal with the manner in which the courts have so far construed these statutes.
1. The Scheme of the Acts
a) Access to Information Act
The purpose of the Access Act is stated in section 2 as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
The provision defining the right of access granted under the Access Act is section 4:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
(2) The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.
(3) For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.
Thus, under the Access Act, which applies notwithstanding any other Act, persons are given access to records “under the control of a government institution.” A “record” is defined as including:
3. …
“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;[45]
The government institutions subject to the access legislation include any department or ministry of state of the Government of Canada listed in Schedule I to the Access Act, or any body or office listed in that schedule.[46] Included in Schedule I are the CLRB, the CITT [added by R.S.C., 1985 (4th Supp.), c. 47, s. 52], the NTA [added idem, c. 28, s. 274], and the PSSRB. Courts of law, including the Federal Court of Canada, are absent from the schedule.
The Access Act provides for the exemption of certain types of recorded information from the broad right of access granted in section 4. Some exemptions in the Access Act are mandatory. For example, section 19 provides that records containing “personal information” as defined in the Privacy Act cannot as a rule be disclosed:
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
Other exemptions are discretionary. For example, section 21 of the Access Act provides that the head of a government institution may refuse to disclose a record that contains accounts of consultations or deliberations involving officers or employees of a government institution:
21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
(a) advice or recommendations developed by or for a government institution or a minister of the Crown,
(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,
(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or
(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,
if the record came into existence less than twenty years prior to the request.
(2) Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or
(b) a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.
Another such exemption is section 16, which concerns information obtained or prepared by a government institution that is an investigative body and information the disclosure of which could reasonably be expected, among other things, to be injurious to the enforcement of any law of Canada or a province. Section 16 provides in part as follows:
16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
…
(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; ….
Where access to a record is requested under the Access Act, the head of the government institution to which the request is made must give the person who made the request written notice as to whether or not access will be given. If access is to be given, the head of the government institution must give access to the requester.[47] Where the government institution refuses access to the requested records, the head of the institution must state in its notice to the requester either that the record does not exist or the specific provision of the Access Act on which the refusal was based.[48]
The Access Act creates the Office of the Information Commissioner.[49] One of the principal duties of the Information Commissioner is to receive and investigate complaints from persons having been refused access to records they have requested under the Access Act.[50] If the Information Commissioner finds that a complaint is well-founded, the Commissioner provides the head of the government institution that has control of the record with a report of the investigation’s findings.[51] If the head of the government institution refuses to give access to the record requested under the Access Act, the complainant has the right to apply to the Federal Court for a review of the refusal. The Information Commissioner may also seek a review of the refusal with the complainant’s consent.[52]
In addition to setting out the mechanism by which a person may gain access to records under the control of a government institution, the Access Act imposes certain duties on the government institutions and the designated Minister. For example, section 70 provides:
70. (1) Subject to subsection (2), the designated Minister shall
(a) cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records;
(b) prescribe such forms as may be required for the operation of this Act and the regulations;
(c) cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this Act and the regulations; and
(d) prescribe the form of, and what information is to be included in, reports made to Parliament under section 72.
The head of every government institution must also submit to Parliament an annual report on the administration of the Access Act within the institution.[53]
b) Privacy Act
The purpose of the Privacy Act is stated in section 2 of the Act:
2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.
It is noteworthy that before the enactment of the Privacy Act, the protection of the privacy of individuals with respect to personal information was ensured by Part IV of the Canadian Human Rights Act which was entitled “Protection of Personal Information.”[54] Paragraph 2(b) of the Canadian Human Rights Act described the purpose of Part IV as follows:
2. …
(b) the privacy of individuals and their right of access to records containing personal information concerning them by any purpose including the purpose of ensuring accuracy and completeness should be protected to the greatest extent consistent with the public interest.
The right of access granted to individuals under the Act is defined in section 12:
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
(2) Every individual who is given access under paragraph (1)(a) to personal information that has been used, is being used or is available for use for an administrative purpose is entitled to
(a) request correction of the personal information where the individual believes there is an error or omission therein;
(b) require that a notation be attached to the information reflecting any correction requested but not made; and
(c) require that any person or body to whom that information has been disclosed for use for an administrative purpose within two years prior to the time a correction is requested or a notation is required under this subsection in respect of that information
(i) be notified of the correction or notation, and
(ii) where the disclosure is to a government institution, the institution make the correction or notation on any copy of the information under its control.
(3) The Governor in Council may, by order, extend the right to be given access to personal information under subsection (1) to include individuals not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.
Section 12 of the Act grants individuals access to personal information about them. As in the case of the Access Act, the Act applies to information “under the control of a government institution.” The government institutions to which the Act applies are listed in Schedule I to the Act. As for the Access Act, the CLRB, the CITT, the NTA, and the PSSRB are included and courts of law are not.
In addition to being under the control of a government institution, the information must be “personal” information. The term “personal information” is defined in section 3 as follows:
3. …
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual,
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or employee of the government institution,
(ii) the title, business address and telephone number of the individual,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(v) the personal opinions or views of the individual given in the course of employment,
(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,
(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and
(m) information about an individual who has been dead for more than twenty years;
In addition to the very broadly framed right of access to “personal information”, section 12 also provides a right of access to personal information contained in a personal information bank. A “personal information bank” is defined as a collection or grouping of personal information described as follows in section 10 [as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12] of the Act:
10. (1) The head of a government institution shall cause to be included in personal information banks all personal information under the control of the government institution that
(a) has been used, is being used or is available for use for an administrative purpose; or
(b) is organized or intended to be retrieved by the name of an individual or by an identifying number, symbol or other particular assigned to an individual.
(2) Subsection (1) does not apply in respect of personal information under the custody or control of the National Archivist of Canada that has been transferred to the National Archivist of Canada by a government institution for archival or historical purposes.[55]
The term “administrative purpose” is defined in section 3 of the Act as follows:
“administrative purpose”, in relation to the use of personal information about an individual, means the use of that information in a decision making process that directly affects that individual;
Subsection 12(2) of the Act specifies what an individual is entitled to do with the personal information to which the individual is granted access under the Act. Individuals may request that the personal information be corrected or that notations of the requested corrections be attached thereto where they believe the information contains errors or omissions. In addition, individuals may require that persons or bodies to whom the personal information has been disclosed in the two years preceding the request for a correction be notified of the correction or notation.
The Act also contains general provisions whose object is to ensure the proper collection, retention and disposal of personal information by government institutions, as well as the accuracy of this information.[56] For example, section 4 of the Act provides that:
4. No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.
Section 6 of the Act provides for the retention, accuracy and disposal of personal information:
6. (1) Personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for such period of time after it is so used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
(2) A government institution shall take all reasonable steps to ensure that personal information that is used for an administrative purpose by the institution is as accurate, up-to-date and complete as possible.
(3) A government institution shall dispose of personal information under the control of the institution in accordance with the regulations and in accordance with any directives or guidelines issued by the designated minister in relation to the disposal of that information.
The duty of government institutions to retain personal information is further defined in the Privacy Regulations.[57] Section 4 of the Regulations states in part:
4. (1) Personal information concerning an individual that has been used by a government institution for an administrative purpose shall be retained by the institution
(a) for at least two years following the last time the personal information was used for an administrative purpose unless the individual consents to its disposal; and
(b) where a request for access to the information has been received, until such time as the individual has had the opportunity to exercise all his rights under the Act.
Sections 7 and 8 [as am. by R.S.C., 1985 (2nd Supp), c. 20, s. 13; (3rd Supp.), c. 1, s. 12] of the Act ensure that personal information under the control of a government institution is used only for the purpose for which the information was obtained or compiled by the institution, and is disclosed only with the consent of the individual to whom the information relates or in accordance with conditions enumerated in subsection 8(2).
Like the Access Act, the Privacy Act contains several exemptions which allow the head of a government institution to refuse to disclose personal information requested under subsection 12(1). Section 21 provides that the head of a government institution may refuse to disclose personal information which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities. Section 22 contains an exemption which parallels section 16 of the Access Act. It reads in part as follows:
22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
…
(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; …
The Governor in Council may designate as “exempt banks” personal information banks which consist predominantly of personal information described in sections 21 and 22.[58]
The Act creates the Office of the Privacy Commissioner.[59] The powers and duties of the Privacy Commissioner are analogous to those of the Information Commissioner under the Access Act. The Commissioner receives and investigates various complaints, notably from individuals who have been refused access to personal information requested under subsection 12(1).[60] Like the Information Commissioner under the Access Act, the Privacy Commissioner must provide the head of the government institution that has control of the personal information with a report of the investigation’s findings if he finds that such a complaint is well-founded.[61] If, following the investigation of a complaint relating to the refusal to give access to personal information under the Act, access is not given to the complainant, the complainant has the right to apply to the Federal Court for a review of the refusal.[62] The Commissioner may seek a review of the refusal with the complainant’s consent.[63]
In addition to the power to investigate complaints, the Commissioner has broad powers to review compliance of government institutions with the provisions of the Act. For example, subsection 37(1) of the Act provides that:
37. (1) The Privacy Commissioner may, from time to time at the discretion of the Commissioner, carry out investigations in respect of personal information under the control of government institutions to ensure compliance with sections 4 to 8.
Thus, the Commissioner may carry out the necessary investigations to ensure that government institutions collect, retain, dispose of, use, disclose and ensure the accuracy of personal information within their control in accordance with the Act.[64]
c) Interpretation of the Access Act and the Privacy Act
It is well established that the provisions of the Access Act and of the Privacy Act must be afforded a broad and purposive interpretation. In Canada Post Corp. v. Canada (Minister of Public Works) a majority of the Court of Appeal, considering the proper interpretation of the word “control” in the Access Act, held that it was:
… as much the duty of courts to give subsection 4(1) of the Access to Information Act a liberal and purposive construction, without reading in limiting words not found in the Act or otherwise circumventing the intention of the legislature as “[i]t is the duty of boards and courts,” as Chief Justice Lamer of the Supreme Court of Canada reminded us in relation to the Canadian Human Rights Act , “to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.” [Underlining in original text, footnotes omitted.][65]
This liberal and purposive interpretation of the Access Act and Privacy Act has particularly been illustrated in the approach of this Court to the interpretation of the exemptions to the rights of access granted under these statutes. In Rubin v. Canada (Canada Mortgage and Housing Corp.), the Court of Appeal held that in exercising the discretion conferred by subsection 21(1) of the Access Act to refuse to disclose information requested under this Act, it was incumbent on the administrative head of a government institution to have regard to the policy and object of the Act.[66] Heald J.A. stated:
When it is remembered that subsection 4(1) of the Act confers upon every Canadian citizen and permanent resident of Canada a general right to access and that the exemptions to that general rule must be limited and specific, I think it clear that Parliament intended the exemptions to be interpreted strictly.[67]
As to who bore the onus of proving that an exemption applied, his Lordship held:
The general rule is disclosure, the exception is exemption and the onus of proving the entitlement to the benefit of the exception rests upon those who claim it.[68]
An illustration of the broad, purposive approach to statutory interpretation in the context of the Privacy Act is the rejection by this Court of an unduly restrictive interpretation of the term “personal information”. In Dagg v. Canada (Minister of Finance), the Court of Appeal held that the Motions Judge had erred in finding that only information whose “predominant characteristic” was personal could be considered personal information under the Act.[69] Isaac C.J. stated:
The injection of the “predominant characteristic test” is an unwarranted attempt by the Motions Judge to amend the definition of “personal information” and is contrary to the admonition expressed by the Trial Division of this Court in Rubin v. Canada (Privy Council, Clerk) (1993), 48 C.P.R. (3d) 337, at pages 343-344, as follows:
Whilst it is trite that courts are responsible to interpret what Parliament enacts, only a naïve primitive would think that courts are free to do just as they please in such circumstances. The judiciary must exercise self-restraint, and must not trifle with the intent of Parliament as expressed in its enactments. The judiciary must never slip easily, if at all, into defiance of Parliament, since this country is founded on the principles of the rule of law.[70]
In Canada (Information Commissioner) v. Canada (Solicitor General), while examining subsection 19(1) of the Access Act [S.C. 1980-81-82-83, ch. 111, Sch. I] which allows personal information to be exempted from disclosure, Jerome A.C.J. held:
The intent of subsection 19(1), and its incorporation of section 3 of the Privacy Act, is clearly to protect the privacy or identity of individuals who may be mentioned in otherwise releasable material. I note that the definition of personal information is deliberately broad. It is entirely consistent with the great pains that have been taken to safeguard individual identity.[71]
In Sutherland v. Canada (Minister of Indian and Northern Affairs), Rothstein J. applied to the interpretation of the definition of “personal information” a test similar to that adopted for disclosure under the Access Act by the Court of Appeal in CMHC:
Because the purpose of the Privacy Act is to protect the privacy of “personal information,” the general rule is that information about identifiable individuals is “personal information” and only if a specific exception applies, would such information not be “personal information.”[72]
The broad, purposive approach afforded by this Court to the interpretation of both the Access Act and Privacy Act originates in part from this legislation’s particular status. Subsection 4(1) of the Access Act provides that the Act applies “notwithstanding any other act of Parliament,” lending it a quasi-constitutional status. The enactment by Parliament of Part IV of the Canadian Human Rights Act, later replaced by the Privacy Act, illustrated its recognition of the importance of the protection of individual privacy. A purposive approach to the interpretation of the Privacy Act is thus justified by the statute’s quasi-constitutional legislative roots.
This Court has held on several occasions that the Access Act and Privacy Act must be interpreted together. In the case of Bombardier v. Public Service Commission of Canada, the applicant had applied under the Privacy Act to obtain the originals of a test administered by a public service agency and taken by him, as well as the correction grid.[73] The applicant argued that a provision of the Access Act which authorized government institutions to protect the confidentiality of such tests was not applicable since he had brought an application for disclosure under the Privacy Act. Addy J. held that this argument was unacceptable for the following reasons:
Every statute must be interpreted in the light of other legislation dealing with the same or a related subject.
If in the case at bar I gave the words “le support” the construction suggested by the applicant, so as to take in the complete text of the “in basket” test and the correction grid, the intention of the legislature as stated in s. 22 of the Access to Information Act would not only be contravened but defeated and this section would become inoperative, since anyone who takes a test or examination would have an absolute right to have it fully communicated to him under the provisions of the Privacy Act.[74]
More recently, in the case of Dagg v. Canada (Minister of Finance), the Federal Court of Appeal considered whether the term “personal information” in the Privacy Act should be interpreted restrictively so as not to impair citizens’ rights under the Access Act.[75] Chief Justice Isaac held as follows:
The Access Act and the Privacy Act were enacted by Parliament as schedules to An Act to enact the Access to Information Act and the Privacy Act to amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof, (S.C. 1980-81-82-83, c. 111, Sch. I and II), and came into force at the same time. Their purposes are not obscure. The purpose of the Access Act, stated in subsection 2(1) of that Act, is to afford to the public access to information under the control of the Government of Canada in accordance with the principles expressed in the legislation and subject to the limited and specific exceptions contained therein. Section 19 of that Act, which relates to “personal information”, describes only one of many such “limited and specific exemptions” contained in the Act. Similarly, the purpose of the Privacy Act is expressly stated in section 2 thereof in plain and unambiguous language. It is two-fold: to protect the privacy of individuals with respect to “personal information” about themselves held by an institution of the Government of Canada and to provide those individuals with a right of access to that information.
It is obvious that both statutes are to be read together, since section 19 of the Access Act does incorporate by reference certain provisions of the Privacy Act. Nevertheless, there is nothing in the language of either statute which suggests, let alone compels, the conclusion that the one is subordinate to the other. They are each on the same footing. Neither is pre-eminent. There is no doubt that they are complementary and must be construed harmoniously with each other according to well-known principles of statutory interpretation in order to give effect to the stated parliamentary intention and in order to ensure the attainment of the stated parliamentary objectives.[76]
With respect to the view expressed by the Motions Judge that the Access Act should be seen as paramount and that the Privacy Act should be given a limited and restrictive scope, Isaac C.J. stated:
This approach is also contrary to the intention of Parliament as expressed by the Minister of Communications when he introduced the legislation for third reading in the House of Commons. This is what he said (Canada, House of Commons Debates, vol. XVI, 1st Sess., 32nd Parl., at p. 18853):
Combining access to information and privacy legislation in one bill has permitted the complete integration of these two complimentary types of legislation.
Parallel rights of access to information held by the government and parallel rights of review of decisions to refuse access have been created…. Thus the term “personal information’” has the same meaning in both the privacy and access to information legislation.
Also the disclosure of information under the access to information portion of the bill is determined by the principles regarding disclosure of personal information to third persons set out in the privacy portion. This approach will ensure complete consistency between the treatment of personal information under both statutes, thus avoiding the situation which has developed in some countries where competing rights to privacy and to access to government-held information have been created.[77]
2. The Exemption
The respondent and intervenors claim that requiring disclosure of the notes of CLRB members “could reasonably be expected to be injurious to the enforcement of any law in Canada” within the meaning of paragraph 22(1)(b) of the Privacy Act because it would interfere with the independence and intellectual freedom of quasi-judicial decision makers acting under the Canada Labour Code by revealing their personal decision-making processes and by causing them to alter the manner in which they arrive at decisions.
a) The burden of proof under paragraph 22(1)(b) of the Act
Paragraph 22(1)(b) of the Act provides that:
22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
…
(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; ….
The wording and structure of this exemption closely resemble that of an exemption in the Access Act regarding third party information which was considered by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture).[78] Paragraphs 20(1)(c) and (d) of the Access Act provide as follows:
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
…
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
Writing for the Court, MacGuigan J.A. held that, taking into account the principle described in section 2 of the Access Act that the statute should be interpreted in light of the principle that exceptions to the public’s right of access to government information should be “limited and specific”, paragraphs 20(1)(c) and (d) should be interpreted as requiring the party relying on the exemption to establish the existence of a “reasonable expectation of probable harm” from disclosure.[79] In the case at bar, the onus is therefore on the respondent to establish that the disclosure of the notes could reasonably be expected to be injurious to the enforcement of the Canada Labour Code.
In Kaiser v. Canada (Minister of National Revenue — M.N.R.), Rothstein J. ordered that information under the control of the Minister of National Revenue be disclosed, as the Minister had not satisfied the onus under paragraph 22(1)(b) of the Act of demonstrating that the confidentiality he sought was necessary because disclosure could reasonably be expected to be injurious to the enforcement of the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1].[80] Discussing this evidentiary burden, Rothstein J. stated:
The Court must be given an explanation of how or why the harm alleged might reasonably be expected to result from disclosure of the specific information. This is not a case where harm from disclosure is self-evident. I have been asked to infer that harm will result if disclosure is allowed. In order to make such an inference, explanations provided by the Minister must clearly demonstrate a linkage between disclosure and the harm alleged so as to justify confidentiality.[81]
The respondent in the case at bar must therefore provide the Court with an explanation of how or why the harm alleged, i.e. injury to the enforcement of the Canada Labour Code, might reasonably be expected to result from disclosure of the notes.
b) The Commissioner’s position
As a preliminary matter, I note that the Commissioner has taken the position throughout these proceedings that although the notes stand to reveal the decision-making process of the CLRB members, their disclosure would not be injurious to the enforcement of the Canada Labour Code. The following extracts from correspondence by the Commissioner to the Chairman of the CLRB are illustrative of this position:
I can think of nothing which more appropriately advances the notion of a fair hearing in accordance with principles of fundamental justice than the right to know the information upon which a decision affecting one’s rights and obligations is made. I am unable to find anything in the Privacy Act to the contrary, or which supports your view that the Act should not apply.
…
Nor, although you do not mention this specifically in your letter, can I imagine that making these notes available to the individual would hamper the Board’s proceedings. To my mind, it could enhance the persuasiveness of the Board’s decision making process and thereby encourage early settlement of the issues.[82]
and;
I can find no provision which excludes or exempts either expressly or by implication this information or the CLRB or its members from the normal operation of the Act. Nor, as I have said in earlier correspondence, can I accept that knowing the information upon which a decision affecting one’s rights and obligations is made will detract from the notion of fundamental fairness. Rather, I believe it will enhance it.[83]
The Commissioner maintained this position in his written submissions:
No evidence exists to demonstrate that a board member would be impaired in the performance of his or her duties if personal information in his or her notes were dealt with in accordance with the Privacy Act. It would not do justice to the board members competence to infer that access to their notes would undermine their ability to perform their duties in a professional manner.[84]
and;
It is submitted that the ability of Board members to act in an independent and impartial manner is for the public order and to benefit individuals, not for the comfort of the Board members. It is to promote confidence in the administration of justice. There is no evidence to suggest the access of Gilles Charlebois to his personal information will negatively affect the public order. To the contrary, the Board members remain impartial and independent, whether or not an individual has access to his/her personal information.[85]
and;
Contrary to the assertion of the respondent and the intervenors that the disclosure of Board member notes would cause injury, it is submitted that the disclosure of board members notes could promote administration of justice by encouraging Board members to respect the taking of notes which, as stated by Mr. Chodos, is “an essential part of [the] decision making process.”[86]
At the close of the hearing, counsel for the Commissioner raised the further argument that in this case, disclosure of the notes would not reveal the decision-making process of the CLRB members. The applicant had alluded to this argument in its written submissions:
In any event a review of the notes in question indicates that providing the complainant with access to them would not substantiate the injury claimed. No evidence exists to suggest an injury.[87]
and;
Further, there is no evidence that the application of the Act raises an appearance of interference with the decision-making process. It cannot be presumed that the disclosure of personal information contained in Board member’s notes would reveal the thought process of an adjudicator. The position that the personal information in notes would not, as a rule, reveal anything about the mind of the decision maker is supported by the affidavit evidence of Mr. Chodos where he states:
“These notes are handwritten during the course of the hearing and by no means do they constitute a verbatim transcript of what occurred. They are cryptic, incomplete and often illegible to anyone but me … Accordingly, these notes could be a misleading account of the proceedings and it would be virtually impossible to understand them without an explanation from me.”[88]
I must state at the outset that I disagree with the Commissioner’s contention that this application could be disposed of on the basis that the notes do not in fact reveal the decision-making process of the CLRB members. Firstly, as evidenced by the correspondence and written submissions canvassed above, the Commissioner has initiated and pursued this matter on the basis that the independence and impartiality of the members of the CLRB would, as a matter of principle, be unaffected by the disclosure of the notes. The Commissioner has argued that the disclosure of the thinking process of the members of the CLRB, far from being injurious, would reveal “the information upon which a decision affecting one’s rights and obligations is made,” could “enhance the persuasiveness of the Board’s decision-making process” and could “promote the administration of justice by encouraging Board members to respect the taking of notes … an essential part of the decision-making process.” I have great difficulty with the Commissioner’s position that on the one hand the disclosure would reveal the information upon which a decision is made but that on the other hand there is no evidence establishing that the members’ thought processes would be revealed. In making this last assertion, the applicant is in effect seeking to change the basis upon which the matter has so far proceeded as between itself and the respondent.
Secondly, I note that in the normal course of the Commissioner’s investigation into Mr. Charlebois’ complaint, the Commissioner would not have been given access to the notes of the CLRB members. In this instance, one of the Commissioner’s officers was permitted to examine the notes on a without prejudice basis. In my view, it is improper for the Commissioner to now rely on the results of this review and claim that “in any event a review of the notes in question indicates that providing the complainant with access to them would not substantiate the injury claimed.”
Finally, even taking into consideration the privacy officer’s review of the notes, I come to the conclusion that the evidence establishes that the thought processes of the CLRB members would be revealed were the notes disclosed. In her memorandum to file dated November 29, 1994, Privacy Officer Joyce McLean stated that the notes of Thomas Eberlee, the CLRB panel Chairman, appeared to be a running commentary of the hearing “with occasional comments by [Mr.] Eberlee clearly identified as such in [the] margin or in brackets.” The notes of panel member Mary Rozenberg were also a running commentary of the hearing, with Ms. Rozenberg’s comments identified in different colours or on a post-it note.[89] In his affidavit dated October 17, 1995, Philip Chodos, a deputy chairperson with the PSSRB, deposed that:
2. The PSSRB is an administrative tribunal with quasi-judicial responsibilities whose primary mandate is the resolution of labour disputes in the federal Public Service. The proceedings of the PSSRB are adversarial in nature and its decisions are based on the evidence adduced by the parties in public hearings.
3. As a Deputy Chairperson of the PSSRB for the past seven years I have conducted many hearings and rendered numerous decisions in proceedings brought under the Public Service Staff Relations Act, the Parliamentary Employment and Staff Relations Act and the Canada Labour Code, Part II insofar as it applies to the federal Public Service.
4. In conducting these hearings, I make notes of the evidence adduced and the submissions made by the parties to aid me in reaching my decision and, ultimately, in drafting it.
5. These notes are handwritten during the course of the hearings and by no means do they constitute a verbatim transcript of what occurred. They are cryptic, incomplete and often illegible to anyone but me. I use many abbreviations which would be difficult for anyone else to decipher. If I am familiar with an argument being made and the jurisprudence being cited, I may not refer to them in my notes. Sometimes I also make comments in my notes regarding the credibility of certain witnesses or the relevance and cogency of certain submissions or arguments. Often these matters are resolved during the course of the hearing although this would not necessarily be apparent from a perusal of my notes. Accordingly, these notes could be a misleading account of the proceedings and it would be virtually impossible to understand them without an explanation from me.
6. Following the conclusion of a hearing, I use the notes which I made as an aide-memoire to assist me in drafting my decision; indeed, I consider them to be an essential part of my decision-making process. I also make notes in the course of preparing my decision, including outlines, analysis and draft decisions which include information with respect to the parties appearing before me. [My underlining.][90]
In so far as the comments in a Board member’s notes respecting the credibility of witnesses or the cogency of evidence presented by the parties at a hearing reflect the personal reactions of the member to the evidence and submissions of the parties, and in so far as these notes are said to be an essential part of the Board member’s decision-making process, I am satisfied on the basis of the record before me that the notes in issue do reveal some of the thought processes and the decision-making processes of the members of the CLRB.[91]
c) The nature of the CLRB and the powers and duties of its members
In order to determine whether or not disclosure of CLRB members’ notes would “interfere with their independence and intellectual freedom,” it is essential to understand the nature of the Canada Labour Relations Board and the powers and duties of its members.
The composition and operation of the CLRB is defined in Division II of Part I of the Code. The CLRB is composed of a Chairman, Vice-Chairmen, full-time members and part-time members.[92] Full-time and part-time members are appointed by the Governor in Council to hold office during good behaviour for terms not exceeding five and three years respectively, while the Chairman and Vice-Chairmen are appointed for terms not exceeding ten years.[93] Section 15 of the Code provides that the CLRB may make regulations of general application respecting, among other things:
15. …
(a) the establishment of rules of procedure for its hearings;
(b) the determination of units appropriate for collective bargaining;
(c) the certification of trade unions as bargaining agents for bargaining units;
(d) the conduct of representation votes;
…
(g) the hearing or determination of any application, complaint, question, dispute or difference that may be made or referred to the Board;
…
(k) the form in which and the period during which evidence and information may be presented to the Board in connection with any proceeding that may come before it;
…
(p) the authority of any person to act on behalf of the Board and the matters and things to be done and the action to be taken by that person; and
(q) such other matters and things as may be incidental or conducive to the proper performance of the duties of the Board under this Part.[94]
Section 16 describes the various powers of the CLRB. It provides as follows:
16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
(b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;
(d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;
(e) to examine documents forming or relating to the constitution or articles of association of
(i) a trade union or council of trade unions that is seeking certification, or
(ii) any trade union forming part of a council of trade unions that is seeking certification;
(f) to make such examination of records and such inquiries as it deems necessary;
(g) to require an employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring to the attention of any employees any matter relating to the proceeding;
(h) subject to such limitations as the Governor in Council may, in the interests of defence or security, prescribe by regulation, to enter any premises of an employer where work is being or has been done by employees and to inspect and view any work, material, machinery, appliances or articles therein and interrogate any person respecting any matter that is before the Board in the proceeding;
(i) to order, at any time before the proceeding has been finally disposed of by the Board, that
(i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and
(ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;
(j) to enter on the premises of an employer for the purpose of conducting representation votes during working hours;
(k) to authorize any person to do anything that the Board may do under paragraphs (b) to (h) or paragraph (j) and to report to the Board thereon;
(l) to adjourn or postpone the proceeding from time to time;
(m) to abridge or enlarge the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence in connection with the proceeding;
(n) to amend or permit the amendment of any document filed in connection with the proceeding;
(o) to add a party to the proceeding at any stage of the proceeding; and
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or an employee,
(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers’ organization, a trade union or a council of trade unions,
(v) a group of employees is a unit appropriate for collective bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a collective agreement, and
(viii) a collective agreement is in operation.
In addition to those powers enumerated in section 16 of the Code, the CLRB has pursuant to section 18 the power to:
18. … review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.
The decisions and orders of the CLRB are protected by a privative clause, which provides as follows:
22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall
(a) be questioned, reviewed, prohibited or restrained, or
(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.[95]
Section 22 restricts the grounds upon which a decision of the CLRB may be reviewed by a court. Indeed, section 22 excludes as grounds of review those grounds specified in paragraphs 18.1(4)(c) and (d) of the Federal Court Act, namely review for erroneous findings of fact and for errors of law. The members of the CLRB are thus the ultimate triers of fact in matters that come before them under the Code, and their determinations on questions of law falling within the jurisdiction conferred upon them by the Code are final.
It is in this statutory context that a three-member panel of the CLRB heard and determined the complaint made by Mr. Charlebois under section 97 in respect of an alleged contravention of section 37 of the Code.[96] The nature of the Canada Labour Relations Board and the powers and duties of its members in hearing and determining a complaint brought under section 97 of the Code were canvassed by the Supreme Court of Canada in its recent decision in Canadian Broadcasting Corp. v. Canada (Labour Relations Board).[97] In the CBC decision, the Alliance of Canadian Cinema, Television and Radio Artists filed a complaint with the CLRB alleging that the CBC had interfered with the activities of a trade union contrary to paragraph 94(1)(a) of the Code when it had forced a journalist to choose between his job as host of a radio program and his role as union president. The majority of the CLRB concluded that the CBC had engaged in an unfair labour practice. One of the issues to be decided on appeal to the Supreme Court was the proper standard of judicial review to be applied in challenging this conclusion.
A majority of the Court held that the CLRB’s determination of the existence of an unfair labour practice was a question of law within the Board’s jurisdiction and that the proper standard of review was one of patent unreasonableness. The Court therefore rejected the CBC’s argument that the determination by the CLRB that there had been interference by the CBC with the administration of a trade union was a “jurisdictional” question. In so holding, the Supreme Court applied a pragmatic and functional approach, examining among other things the purpose of the statute creating the tribunal, the reason for its existence and the area of expertise of its members.[98] In reasons adopted by the majority of the members of the Court, Iacobucci J. stated:
The labour relations tribunal, in its federal and provincial manifestations, is a classic example of an administrative body which is both highly specialized and highly insulated from review. Decisions of the federal Board are protected by a broad privative clause, found in s. 22 of the Code. The Canada Labour Relations Board must develop a coherent and workable structure for the application of the numerous statutory provisions which govern the labour relations of the employers and employees whose operations fall within federal jurisdiction. In order for these workers and their employers to receive rapid resolution of their disputes in a manner which can be rationalized with their other rights and duties under the Canada Labour Code, the decisions of the Board cannot routinely be overturned by the courts whenever they disagree with the Board’s treatment of an isolated issue. Thus the applicable standard of judicial review is one of patent unreasonableness so long as the Board has not committed a jurisdictional error.[99]
Iacobucci J. held that the CLRB’s determination that the actions of the CBC amounted to prima facie interference with the activities of the union was not jurisdictional in nature. His Lordship found support for this conclusion in the broad powers granted to the CLRB under the Code:
Support for the conclusion that this determination is not jurisdictional in nature is found in a functional analysis of the Canada Labour Code as a whole. The Code contains, in s. 22, a broad privative clause, which limits judicial review only to those errors which amount to a loss or excess of jurisdiction.
…
This broad privative clause is combined with wide powers in the Board to deal with questions put before it. The jurisdiction of the Board to hear and resolve all unfair labour practice complaints is founded in ss. 97(1) and 98(1). Section 99 of the Code bestows on the Board wide remedial powers to address any violation of the Code which it finds.[100]
Iacobucci J. concluded that the Board had exclusive jurisdiction to determine if the CBC had engaged in an unfair labour practice, and that this determination could be interfered with only if it was shown to be patently unreasonable.
d) Independence of the CLRB members
The respondent and intervenors submit that disclosure of the notes would interfere with the independence and intellectual freedom of quasi-judicial decision makers acting under the Canada Labour Code by revealing their personal decision-making processes and by causing them to alter the manner in which they arrive at decisions.
Judicial independence and the adjudicative privilege
The concept of the independence of decision makers has been addressed in a number of decisions by the Supreme Court of Canada. In Valente v. The Queen et al., the Supreme Court considered whether a provincial court hearing an appeal from a conviction under the Highway Traffic Act [R.S.O. 1970, c. 202] was an independent tribunal within the meaning of paragraph 11(d) of the Canadian Charter of Rights and Freedoms.[101] Le Dain J. stated for the Court that judicial independence involved both individual and institutional relationships:
It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.[102]
His Lordship described the “test” for judicial independence as follows:
Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.[103]
Le Dain J. held that three essential conditions for judicial independence for purposes of paragraph 11(d) of the Charter were security of tenure, financial security, and the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. With respect to the third condition, his Lordship noted the following:
Although the increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, may well be highly desirable, it cannot in my opinion be regarded as essential for purposes of s. 11(d) of the Charter. The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of s. 11(d) must, I think, be those referred to by Howland C.J.O. They may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. To the extent that the distinction between administrative independence and adjudicative independence is intended to reflect that limitation, I can see no objection to it. It may be open to objection, however, in so far as the desirable or recommended degree of administrative autonomy or independence of the courts is concerned. In my opinion, the fact that … the Executive exercised administrative control over certain discretionary benefits or advantages affecting the judges did not prevent the Provincial Court … from being reasonably perceived as possessing the essential institutional independence required for purposes of s. 11(d).[104]
In Beauregard v. Canada, the Supreme Court considered whether a legislative amendment to the Judges Act [R.S.C. 1970, c. J-1] requiring judges to contribute to their pension plan violated the principle of judicial independence.[105] Dickson C.J. summarized the essence of the principle of judicial independence as follows:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider—be it government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.[106]
Noting that the principle of judicial independence had grown to include an institutional or collective component in response to the developing social and constitutional role of the judiciary, his Lordship stated:
The rationale for this two-pronged modern understanding of judicial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it—rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute-resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.[107]
Finally, Dickson C.J. summarized the principle of judicial independence as it had evolved in Canada as follows:
In summary, Canadian constitutional history and current Canadian constitutional law establish clearly the deep roots and contemporary vitality and vibrancy of the principle of judicial independence in Canada. The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system.
I emphasize the word ‘all’ in the previous sentence because, although judicial independence is usually considered and discussed in terms of the relationship between the judiciary and the executive branch, in this appeal the relevant relationship is between the judiciary and Parliament. Nothing turns on this contextual difference. Although particular care must be taken to preserve the independence of the judiciary from the executive branch (because the executive is so often a litigant before the courts), the principle of judicial independence must also be maintained against all other potential intrusions, including any from the legislative branch.[108]
In R. v. Lippé, the Supreme Court held that the system of part-time municipal court judges permitted to practise law in Quebec did not infringe the guarantee of judicial impartiality encompassed in paragraph 11(d) of the Canadian Charter of Rights and Freedoms and section 23 of the Quebec Charter of Human Rights and Freedoms [R.S.Q., c. C-12].[109] Gonthier J., with whom a majority of the Supreme Court concurred, reaffirmed the broad scope of the concept of judicial independence as set out in the Valente and Beauregard decisions:
I have had the benefit of the reasons for judgment of the Chief Justice. I agree with his conclusions and agree substantially with the reasons upon which they rest.
However, I wish to indicate that while the precise scope of “judicial independence” need not be in issue here, I respectfully disagree with the restrictive definition which he adopts for “judicial independence” as related solely to independence from government …
The broader understanding of “judicial independence” expressed in the following terms in Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 69, is, in my view, both appropriate and important:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider—be it government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.
This was consistent with the thinking expressed previously by Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685:
As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees. (Emphasis added.)[110]
His Lordship then endorsed the following expression of the scope of judicial independence found in the Universal Declaration on the Independence of Justice, First World Conference on the Independence of Justice, Montréal, June 10, 1983, in S. Shetreet and J. Deschênes, eds., Judicial Independence: The Contemporary Debate (1985), at page 450:
Independence
2.02 Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.[111]
In MacKeigan v. Hickman, a Royal Commission enquiring into the circumstances surrounding the wrongful conviction of Donald Marshall for murder sought to compel the testimony of five members of the Nova Scotia Court of Appeal who, on a reference from the federal Minister of Justice, had overturned the conviction.[112] The Commission sought the judges’ testimony on three aspects of the reference: the reasons for the inclusion of the former Nova Scotia Attorney General on the panel hearing the reference, the composition of the record as it was before the Court of Appeal and the factors which in the opinion of the Court of Appeal constituted a miscarriage of justice. The judges argued that the Commission had no authority to compel their attendance by virtue of judicial immunity from testifying.
McLachlin J., writing the majority judgment, found that an absolute immunity applied to all three aspects, i.e. the constitution of the panel, the record before the Court of Appeal, and the factors which according to the Court of Appeal constituted a miscarriage of justice. Cory J. agreed that an absolute privilege (the adjudicative privilege) applied in relation to the third matter, which related to the adjudicative function of the judiciary. However, his Lordship held that a qualified privilege (the administrative privilege) applied to the first two matters which related to the judiciary’s administrative functions and that the judiciary’s immunity with respect to these functions had to give way in exceptional circumstances such as where the administration of justice was itself under review by a body with the constitutional authority to conduct such a review. Cory J. defined the scope of the judicial immunity guarding judges against compelled intrusions into the thought process behind their decisions as follows:
… there is for very good reason an absolute privilege accorded to the judiciary exempting them from testifying as to their mental processes in arriving at a judgment or as to how they reached a decision in any case that came before them. This has been the law since Knowles’ Trial (1692), 12 How. St. Tr. 1167, and has continued to be so with unabated force to the present time. See for example the decision of the Ontario Court of Appeal in R. v. Moran (1987), 21 O.A.C. 257, at p. 269, per Martin J.A.
A judgment and a judge’s reasons for judgment must be put on record and are subject to scrutiny on appeal by the legal community and by the public at large. It is vital to the preservation of our system of justice that a judge not be required to answer any questions as to how a decision was reached. The reasons and the decisions speak for themselves. If they are to be questioned an effective and comprehensive means of challenging them is provided by appellate procedures.
As well a large measure of judicial immunity from testifying in respect of the administration of the work of the courts is an important and necessary factor in the functioning of the judicial system. For example, it would be unthinkable that an outside agency, whether it be a ministry of government, an agency of government or a bar associate, could designate which judge was to hear a particular case or which members of an appellate court were to sit on an appeal of a case. It is important that there be immunity for judges with regard to their conversations with administrative staff, as much as with their colleagues and clerks. Nonetheless there is an important distinction to be drawn between the two types of judicial immunity. There is first the privilege of the judiciary not to be questioned as to the decisions they have made on cases. This adjudicative privilege is of fundamental importance and is absolute in nature. Secondly, there is the privilege as to the administration of the courts. This administrative privilege is not of the same fundamental importance and is qualified in nature. [My underlining.][113]
McLachlin J. noted that the Court’s decision in Beauregard had not proposed the absolute separation of the judiciary from other branches of government, but separation of its authority and function, and defined the prerequisite for judicial independence as follows:
The critical requirement for the maintenance of judicial independence is that the relations between the judiciary and other branches of government not impinge on the essential “authority and function”, to borrow Dickson C.J.’s term, of the court. What is required, as I read Beauregard v. Canada, is avoidance of incidents and relationships which could affect the independence of the judiciary in relation to the two critical judicial functions” judicial impartiality in adjudication and the judiciary’s role as arbiter and protector of the Constitution.
To summarize, judicial independence as a constitutional principle fundamental to the Canadian system of government possesses both individual and institutional elements. Actions by other branches of government which undermine the independence of the judiciary therefore attack the integrity of our Constitution. As protectors of our Constitution, the Courts will not consider such intrusions lightly.[114]
With respect to the privilege granted the judiciary to refuse to testify concerning their mental processes in arriving at a decision, her Ladyship concluded as follows:
The judge’s right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada, supra. The judge must not fear that after issuance of his or her decision, he or she may be called upon to justify it to another branch of government. The analysis in Beauregard v. Canada supports the conclusion that judicial immunity is central to the concept of judicial independence. As stated by Dickson C.J. in Beauregard v. Canada, the judiciary, if it is to play the proper constitutional role, must be completely separate in authority and function from the other arms of government. It is implicit in that separation that a judge cannot be required by the executive or legislative branches of government to explain and account for his or her judgment. To entertain the demand that a judge testify before a civil body, an emanation of the legislature or executive, on how and why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence. [Underlining added.][115]
Adopting the language of Cory J. and McLachlin J. in MacKeigan, it is clear that the notes taken by a judge in the course of a hearing are within the heartland of the adjudicative privilege as they stand to reveal the judge’s mental processes in arriving at a decision over and beyond what is revealed by the reasons given for the decision. By their nature, notes are intended to record for future use the thought process of a judge on specific points as the hearing unfolds. They are necessary because ongoing impressions are important and memories fade. For that reason, judges must be in a position to take notes free from any intrusion and in particular, free from the fear that the notes could thereafter be subject to disclosure for purposes other than that for which they were intended. A judge must have total freedom as to what is and what is not noteworthy and the certainty that no one can thereafter put in question his or her wisdom in this regard. To allow hearing notes to be used by others for purposes other than that for which they were intended would fundamentally impede the use of a tool that is essential to the judiciary, namely the ability and freedom to note matters of one’s choice as the hearing unfolds for the sole and exclusive purpose of assisting the judge in arriving at the correct decision.
The adjudicative privilege, also termed “judicial immunity” was described in MacKeigan [at page 830] as “essential to the personal independence of the judge, one of the two main aspects of judicial independence,” [at page 841] “vital to the preservation of our system of justice” and “of fundamental importance and … absolute in nature.” The characterization of the adjudicative privilege in MacKeigan flows from the very essence of the principle of judicial independence as defined by Dickson C.J. in Beauregard: the complete liberty of individual judges to decide the cases that come before them. Complete liberty to decide can only exist if the judge is entirely free from interference in fact or attempted interference by any “outsider” with the way in which the judge conducts the case and makes his or her decision. The duty of judges in deciding matters before them was described in the Universal Declaration on the Independence of Justice, the relevant portion of which was adopted by the Supreme Court in Lippé: judges individually must decide impartially, in accordance with their assessment of the facts and their understanding of the law. There must be no other “restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
Assuming for the moment that these principles apply with equal force to quasi-judicial decision makers such as members of the CLRB, the affidavit evidence of Philip Chodos establishes beyond any doubt that the prospect of the collection and retention of the members’ personal notes by the CLRB in view of their disclosure under the Privacy Act would interfere with the decision-making process of the members as it would impede the use of a tool that is essential to this process. Indeed, Mr. Chodos deposed that he considers his personal notes to be an essential part of his decision-making process and that:
If I knew that my notes could be produced for examination by others I would either make no notes or I would attempt to write down everything that occurred during the hearing. The former course of action could seriously affect the quality of my decisions. The latter would impede the possibility of expeditious hearings as well as my ability to observe the demeanour of the witnesses.[116]
Application of the principles of judicial independence to administrative tribunals
At this point, it must be noted that the constitutional and common law sources of the principle of judicial independence and of the adjudicative privilege were framed by the Supreme Court in Valente, Beauregard and MacKeigan with respect to superior courts. A question therefore arises as to the extent to which the principles of judicial independence, including the personal independence of judges and the adjudicative privilege which flows therefrom, can extend to members of an administrative tribunal. In Canadian Pacific Ltd. v. Matsqui Indian Band, the Supreme Court considered whether a Trial Judge had erred in refusing to exercise his discretion to hear a judicial review application pertaining to tax assessments by two Indian bands, where statutory appeal procedures defined in the bands’ tax assessment by-laws, allowed the assessments to be appealed to internal appeal boards.[117] In the Trial Judge’s view, the appeal procedures constituted an adequate alternative remedy with the result that it was not necessary to resort to the judicial review jurisdiction of the Court. Lamer C.J. (Cory J. concurring), held that the Trial Judge had erred by failing to consider that there existed a reasonable apprehension of bias in that members of the appeal boards were not sufficiently independent, as they lacked financial security and security of tenure and because the boards were being asked to adjudicate the interests of those people (the Band) to whom they owed their appointments. Although Sopinka, L’Heureux-Dubé, Gonthier and Iacobucci JJ. held that the allegations of bias were premature, all the judges proceeded on the basis that, in applying the test for reasonable apprehension of bias, the Valente principles were applicable to the appeal boards.[118]
With respect to the applicability of the Valente principles to administrative tribunals, Lamer C.J. stated:
I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties. However, I recognize that a strict application of these principles is not always warranted. In Valente, supra, Le Dain J. wrote, at pp. 692-93:
It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. … The essential conditions of judicial independence for purposes of s. 11(d) must bear some reasonable relationship to that variety.
…
Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e. security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.
In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the Immigration Adjudicators in Mohammad, supra), a more strict application of the Valente principles may be warranted. In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property taxes. In my view, this is a case where a more flexible approach is clearly warranted.[119]
Lamer C.J. noted that the members of the appeal boards performed adjudicative functions not unlike those of courts, and held that despite the fact that the members of appeal boards were required to take oaths of office that they would be impartial and that the interest at stake (tax assessment) was of a lesser form than, for example, security of the person, even a flexible application of the Valente principles led to the conclusion that a reasonable and right-minded person would have a reasonable apprehension that the members of the appeal tribunals were not sufficiently independent.
In Tremblay v. Quebec (Commission des affaires sociales), the Supreme Court considered the degree to which administrative tribunals could rely on deliberative secrecy in their proceedings.[120] The respondent, a social aid recipient, challenged a decision of the Commission to refuse to reimburse the cost of certain dressings and bandages by an action in nullity, alleging that the formal consultation process employed by the Commission to reach its decision violated the rules of natural justice. The Court held that the Commission’s formal consultation process, because it provided for compulsory consultation against the will of the members actually deciding the matter, created an appearance of systemic pressure and violated the rules of natural justice. During trial of the matter, counsel for the respondent had succeeded, over the Commission’s objections, in compelling the Commission’s secretary to answer questions regarding the consultation process. The Commission argued before the Supreme Court that its objections should have been maintained, based on the principle of deliberative secrecy. Writing for the Court, Gonthier J. held as follows:
In my opinion, the objections made by the Commission should be dismissed. The questions raised by the respondent did not touch on matters of substance or the decision makers’ thinking on such matters. These questions were directed instead at the formal process established by the Commission to ensure consistency in its decisions. They were concerned first with the institutional setting in which the decision was made and how it functioned, and second with its actual or apparent influence on the intellectual freedom of the decision makers. This distinction was noted by Dugas J. during the interrogatories themselves.
In the case of administrative tribunals, the difficulty of distinguishing between facts relating to an aspect of the deliberations which can be entered in evidence and those which cannot is quite understandable. The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice. The institutionalized consultation process involving deliberation is the subject of rules of procedure designed to regulate the “concensus tables” process. Paradoxically, it is the public nature of these rules which, while highly desirable, may open the door to an action in nullity or an evocation. It may be questioned whether justice is seen to be done. Accordingly, the very special way in which the practice of administrative tribunals has developed requires the Court to become involved in areas into which, if a judicial tribunal were in question, it would probably refuse to venture:
The judge’s right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada…. To entertain the demand that a judge testify before a civil body, an emanation of the legislature or executive, on how or why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence. (Emphasis added.)
(MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31.)
Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature of judicial review to examine inter alia the decision maker’s decision-making process. Some of the grounds on which a decision may be challenged even concern the internal aspect of that process: for example, was the decision made at the dictate of a third party? Is it the result of the blind application of a previously established directive or policy? All these events accompany the deliberations or are part of them.
Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. This is indeed the conclusion at which the majority of the Court of Appeal arrived, at pp. 2074-75:
[translation] However, this confidentiality yields to application of the rules of natural justice, as observance of these rules is the bedrock of any legal system.
In exceptional cases, therefore, the confidentiality requirement may be lifted when good grounds for doing so are first submitted to the tribunal.
I would therefore dismiss this first ground of appeal. [My underlining.][121]
The principles for judicial independence outlined in the Supreme Court jurisprudence beginning with the Valente decision have been applied to administrative tribunals which function as adjudicative bodies settling disputes and determining the rights of parties.[122] While these principles and the underlying protection which they afford inherently belong to courts alone, they were nevertheless imported into the sphere of administrative decision-making through the enforcement by the courts of the rules of natural justice. In so far as the CLRB is concerned, it is common ground that courts will enforce the rules of natural justice via the judicial review mechanism established by section 22 of the Code and sections 28 and 18.1 of the Federal Court Act.
In Matsqui, a decision respecting the institutional independence of tax assessment appeal boards, the Supreme Court held that the principles for judicial independence outlined in Valente should be [at page 51] “applied in light of the functions being performed by the particular tribunal at issue.” In that particular case, a flexible approach to the application of the Valente principles was said to be warranted. However, when dealing with a direct intrusion into the thought process of a decision maker adjudicating substantive rights, a flexible approach may not be justified. In Tremblay for example, Gonthier J. clearly prefaced his reasons dismissing the Commission’s objections by the observation that [at page 964] “the questions raised by the respondent did not touch on matters of substance or the decision makers’ thinking on such matters” but [at pages 964-965] “were concerned first with the institutional setting in which the decision was made and how it functioned, and second with its actual or apparent influence on the intellectual freedom of the decision makers.” While judicial review by its very nature will sometimes require a court to closely examine the internal aspects of the decision-making process when confronted with “valid reasons for believing that the process followed did not comply with the rules of natural justice,”[123] and while to that extent administrative tribunals cannot rely on deliberative secrecy to the same extent as the courts, I am otherwise aware of no principle or authority which would authorize an intrusion into the thought process of a decision maker beyond what is revealed by the reasons.
It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice.[124] As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.
That was the opinion expressed by the Commissioner of the Commission d’accès à l’information (Quebec) in Douville c. Commission de la santé et de la sécurité du travail du Québec rejecting the applicant’s request that an arbitrator’s notes taken during his hearing before the Commission de la santé et de la sécurité du travail be disclosed to him.[125] The Quebec Commissioner’s reasons were as follows:
[translation] Moreover, it appears that when a decision maker or member of the review board hears and decides a case, he or she is exercising a quasi-judicial function. The provisions of section 23 and subsection 56(1) of the Charter of Human Rights and Freedoms must therefore be considered:
23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
Furthermore, in proceedings in family cases, sittings in first instance are held in camera unless the tribunal decides otherwise on the motion of any person and if it deems it expedient in the interests of justice.
56.1 In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word “tribunal” includes a coroner, a fire investigation commissioner, and inquiry commission, and any person or agency exercising quasi-judicial functions.
In my view, an order to disclose personal notes taken by a decision maker or member of the agency’s review board in the exercise of a quasi-judicial function would be contrary to section 23, supra. It would compromise the independence that such a person must have in exercising his or her functions.
Access cannot be had to such notes, which are taken to be used as a reference in preparing a decision to be rendered.[126]
This decision is based on the view that to order the disclosure of personal notes taken by a decision maker in the exercise of a quasi-judicial function would infringe section 23 of the Quebec Charter of Human Rights and Freedoms,[127] which guarantees the right of every individual to a fair and impartial hearing. The applicant has argued that it is inapplicable in the case at hand because section 23 has no counterpart in the federal Act. However, in my view, section 23 of the Quebec Charter merely codifies the right to a fair hearing as it has been developed by the case law. This right remains extant and applicable to federal legislation in the absence of a clear intent to exclude it. Under federal law, it has found expression in and was recognized by paragraphs 2(e) and (f) of the Canadian Bill of Rights which state:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
…
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; ….[128]
I am therefore satisfied that the respondent has met the burden placed upon it by paragraph 22(1)(b) and has established that disclosure of the notes, by revealing the mental processes and ultimately, the decision-making processes of its members, would compromise its operations. Specifically, I am satisfied that the workings of the CLRB as an adjudicative tribunal called upon to dispose of substantive rights would be impeded to the point that a reasonable expectation of probable harm to the performance of its statutory functions under the Code would result from the requested disclosure. The regulated disclosure of hearing notes under the Privacy Act would take away from the Board a tool that is, in my view, essential to the performance of its duty. In so stating, I stress that if the notes are not exempt from disclosure, any “personal information” which they may contain, including all expressions of opinions pertaining to litigants, lawyers and witnesses would by law have to be systematically collated and retained by the CLRB in an information bank for a minimum period of two years in view of their disclosure upon request to the individual concerned.[129] That prospect, in my view, raises a reasonable expectation of probable harm to the performance by the CLRB of its statutory functions under the Code and on that basis I conclude that the notes are exempt from disclosure under paragraph 22(1)(b) of the Act.
Section 119 of the Code
Further support for this conclusion can be found in section 119 of the Code which provides that:
119. No member of the Board or a conciliation board, conciliation officer, conciliation commissioner, officer or employee employed by the Board or in the public service of Canada or person appointed by the Board or the Minister under this Part shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his duties under this Part.
In effect, this provision affords CLRB members a statutory immunity from testifying akin to that derived for the judiciary from the principles of judicial independence by the Supreme Court in MacKeigan. Such provisions are not uncommon in statutes governing labour relations and are found for instance in the Public Service Staff Relations Act and the Ontario Labour Relations Act.[130]
Counsel brought to my attention two decisions in which Ontario courts considered requests by applicants in judicial review proceedings that members of administrative bodies testify in relation to decisions they had made. In both decisions, the legislation governing the administrative bodies contained provisions similar to section 119 of the Code. In Agnew v. Ontario Assn. of Architects, an unsuccessful applicant to the Experience Requirements Committee of the Ontario Association of Architects sought, on judicial review, to subpœna the members of the Committee to testify about their decision that he did not meet the experience requirements prescribed by the regulations for the issuance of a licence to engage in the practice of architecture.[131] The Association argued that a section of the Architects Act, 1984 gave the Committee members immunity from testifying, and that in any event, no member of a statutory tribunal is a compellable witness as to his decision-making processes.[132] Campbell J., of the Ontario Divisional Court did not deal with the statutory provision, but instead chose to decide on the issue of the general compellability of tribunal members as follows:
… judges are not ordinarily compellable to testify about their decisions or the basis on which they reached them: Re Clendenning and Board of Police Com’rs for City of Belleville (1976), 15 O.R. (2d) 97, 75 D.L.R. (3d) 33, 33 C.C.C. (2d) 236 (Div. Ct.). The rule is not restricted to superior court judges. It is open, in light of the comments of Martin J.A. in R. v. Moran (1987), 36 C.C.C. (3d) 225 at p. 239, 21 O.A.C. 257 at pp. 269-70, to conclude that the rule may extend to justices of the peace as well.
In a case of a judge subpoenaed to testify about something touching on his decision, a burden of persuasion shifts to the party issuing the subpœna to demonstrate that the evidence sought does not seek to penetrate the mental process by which the judge came to his decision.
The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge. [My underlining.][133]
The applicant argued that he did not intend to delve into the members’ decision-making process. Campbell J. stated:
The applicant’s counsel says he does not propose to delve into the mental processes of the members or their decision-making process but seeks rather to explore a distinct and different area; whether they considered the material that was put before them, whether they made their decision on the basis of the material before them, whether they each made their decision as individuals or deferred to the views of someone else, whether they prejudged the matter.
I see no distinction or difference between questions directed to those matters and questions directed to the decision process. The matters sought to be asked are at the heart of the decision-making process and are directly within the mischief sought to be prevented by the rule against penetrating the mind of the decision-maker.[134]
The Agnew decision predates the decisions of the Supreme Court in Tremblay and Matsqui where it was held, respectively, that administrative tribunals could not rely on deliberative secrecy to the same extent as judicial tribunals and that a flexible application of the principles for judicial independence was warranted in the case of administrative tribunals. Subject to this caveat, the decision of the Ontario High Court remains useful. In particular, Campbell J.’s observation that the mischief of penetrating the decision process of a tribunal member is the same as the mischief of penetrating the decision process of a judge is consistent with the caveat expressed by Gonthier J. in Tremblay when he prefaced his decision by the statement that [at page 964] “The questions raised by the respondent did not touch on matters of substance or the decision-makers’ thinking on such matters.” I, like Campbell J., can see no distinction in the harm that would attach to an intrusion into the thought process of a decision maker resulting from the sole fact that one is a judge and the other is not. To the extent that substantive rights are in issue, the harm is the same.[135]
In Ellis-Don Ltd. v. Ontario Labour Relations Board, the Ontario Divisional Court considered a request by an applicant in a judicial review proceeding that members of the Ontario Labour Relations Board (OLRB) testify in relation to their decision.[136] The Court considered both a statutory provision purporting to grant Board members immunity from testifying and the effect of the Supreme Court’s decision in Tremblay. The OLRB had issued a decision holding that Ellis-Don Ltd. was bound by the terms of a provincial agreement. The company obtained a copy of a draft award which indicated that Ellis-Don Ltd. was not bound, and learned that the OLRB’s final decision had been taken following a full Board meeting. Ellis-Don Ltd. applied for judicial review of the decision on the grounds that the OLRB’s procedure had violated fundamental justice, and sought to compel the chair, vice-chair and registrar of the OLRB to provide information with respect to the OLRB’s procedures. The OLRB argued that section 111 of the Ontario Labour Relations Act provided the members with immunity from testifying.[137]
Steele J. concluded that where a denial of natural justice was alleged, section 111 of the Ontario Labour Relations Act was not meant to deny the claimant the right to investigate whether or not he had been wronged, and ordered the members of the OLRB to submit to cross-examination. The Divisional Court overturned Steele J.’s decision, finding that the facts of the case were precisely governed by section 111. The Court held that section 111 should be given a broad and purposive construction, and that the term “testimony” was not confined to oral testimony. According to the Court, to construe section 111 otherwise would:
… substantially undermine the purpose of s. 111 which is to insulate board officials from the distraction, the expenditure of time, and the potential intimidation associated with testifying about their board-related activities in other legal proceedings.[138]
The applicant argued that it had adduced valid reasons for believing that the process followed by the Board failed to comply with natural justice, and that the veil of deliberative secrecy should be raised in accordance with the decision of the Supreme Court in Tremblay. The Court held:
In our opinion, the facts of this case are precisely governed by s. 111. This provision, which was not present in Tremblay, supra, is designed to protect deliberative secrecy and guard against the chilling effect on the decision-making process which the potential of compellability to testify would engender. A legislature clearly has the jurisdiction to modify the common law requirements of natural justice. Here, it has specifically and clearly prohibited one way in which a party might seek to establish a breach of natural justice. An exception for natural justice cannot reasonably be read into the section without undermining to a substantial degree its central purpose.[139]
Finally, the Court held that if the Tremblay approach did apply in this case, the evidence of a breach of the rules of natural justice was insufficient.
The respondent and intervenors argued before me that the effect of the collection, retention and eventual disclosure of the notes pursuant to the provisions of the Privacy Act was to compel the members to “give evidence” within the meaning of section 119 of the Code. I do not share this view. Nevertheless, section 119 illustrates Parliament’s intent to shield CLRB members from intrusions into the thought processes underlying their decision. As such, it supports the conclusion that I have reached to the effect that the notes are exempt from disclosure under paragraph 22(1)(b) of the Act.
3. The meaning of “personal information”—the scope of the Privacy Act
Against the foregoing conclusion, the applicant argued that the possibility that the notes in issue could be exempt from disclosure under paragraph 22(1)(b) had to be excluded as a pure matter of statutory interpretation. Specifically, it was argued at the end of the reply[140] that since “accounts of consultations or deliberations” involving officers of a government institution are exempt from disclosure under the Access Act[141] and no such exception exists under the Privacy Act, a clear inference must be drawn to the effect that the adjudicative privilege was not intended to guard information from disclosure under the Privacy Act. In my view, the inference to be drawn from the state of the legislation is, at best, neutral.
What the exemption does show is that Parliament turned its mind to the adjudicative privilege for purposes of the Access Act and chose to respect it. The fact that the issue was ignored under the Privacy Act can be better explained by its lesser scope; it is not necessarily indicative of a legislative intent to cast aside the adjudicative privilege under that Act. Specifically, the Access Act has a significantly wider ambit than the Privacy Act. It makes accessible to any interested person[142] all records under the control of government subject only to the specified exemptions. As it is intended to give access to “government information”,[143] and as that term is undefined, it operates under the statutory presumption that all such records contain information to which access is thereby given. It follows that under the Access Act, all records under the control of government are made accessible irrespective of what they may contain.[144] That is the context in which under the Access Act, the legislator decided to exempt from disclosure accounts of consultations and deliberations of decision makers recorded in the course of an adjudicative process.
In contrast, the Privacy Act has a much narrower scope. It only gives access to “personal information”, as that term is defined and provides access only to the individual concerned. It follows that before even envisaging an exemption for accounts of consultations and deliberations of decision makers under the Privacy Act, the legislator would first have had to consider that such consultations and deliberations were capable of reflecting the type of information targeted by the Privacy Act. In my view, this is unlikely.
The term “personal information” is given a very wide meaning. Its definition encompasses “information” of a personal nature as that word is commonly understood[145] including that which relates to matters enumerated in section 3, but also extends to the “views” or “opinions”[146] held by an individual about someone else. Despite this far reaching definition, it is doubtful that anything expressed by a decision maker in the course of consultations or deliberations can be regarded as “personal information” about an individual. This is because nothing that is recorded by a decision maker in the course of deliberations is intended to inform. Furthermore, whatever the “views” or “opinions” expressed by a decision maker about someone in the course of deliberations, these cannot be said to be the “views” or “opinions” of the decision maker unless and until they find their way into the reasons which are eventually given for the decision.
The scheme of the Privacy Act supports the proposition that it is aimed at information that is intended to be used as such or that is at least capable of being used as such. Recorded consultations and deliberations are neither. The Act has two basic objectives, namely to protect the privacy of individuals, and to provide access to personal information about themselves held by government.[147] In order to achieve these objectives, the Act limits the collection of private information by government to what is necessary for its operations,[148] and where such information must be collected, it requires it to be “as accurate, up-to-date and complete as possible”.[149] To ensure this result, the individual concerned is given access to information relating to him or her and is given the right to make corrections, or alternatively to insist that notations reflecting his or her point of view be attached to such information.[150]
Accounts of consultations and deliberations do not lend themselves to notations and corrections. They do not purport to be and cannot reasonably be viewed by anyone as “accurate” “up-to-date” or “complete” as to what they may reveal. Indeed, it is very doubtful that the complainant in this matter had any privacy concerns when he initiated his request for information. In his letter to the Privacy Commissioner he made it clear that he needed the information in order to assist him in pursuing his prolonged and involved litigation before the courts pertaining to the alleged violation of his rights under the Code.[151] In this respect, the appeal process provided the complainant with an effective opportunity to correct any error of fact or opinion which might have been harboured by the Board in reaching its decision.[152]
In my view, therefore, the absence of an exemption in the Privacy Act for accounts of consultations and deliberations involving decision makers is not necessarily evocative of a desire to do away with the adjudicative privilege under that Act. It is more likely that the legislator simply did not envisage that accounts of consultations and deliberations were susceptible of containing “information”, let alone “personal information” as that term is defined under the Privacy Act.
Before leaving this issue, it is significant that while accounts of consultations and deliberations of decision makers in the exercise of a discretionary power were exempted from disclosure under the Access Act, notes of decision makers taken in the course of a hearing, such as the ones in issue, were not.[153] Yet, hearing notes are as intimately linked to the adjudicative privilege as are consultations and deliberations amongst decision makers. While this omission may be the result of an oversight, I rather think that hearing notes were not brought under the exemption because they are not, in the normal course, thought to be “under the control” of government. That is the second issue of statutory construction involved in this matter to which I now turn.
4. Are the notes under the control of the CLRB?
As a preliminary matter, I note that the expression “under the control of a government institution” is used under both the Privacy Act and the Access Act for identical purposes, i.e. identifying that which is subject to the Act in both instances. As such, both statutes adopt an identical methodology for identical purposes. The expression “under the control of a government institution” must therefore be given the same meaning under both statutes. It follows that, as a practical matter, if the notes in issue are “under the control” of government for privacy purposes, they would also be “under the control” of government for access to information purposes.[154]
The applicant first contends that the mere fact that the notes were “retrieved” and “reviewed” by the CLRB is evidence of its control over them. I disagree. As indicated earlier, the notes were produced for review on a “without prejudice” basis in the hope that the Commissioner might abandon their pursuit. According to the evidence, this review took place after the respondent had obtained the consent of the members. The fact that in this context the CLRB was able to produce the notes for review does not establish its control over them, and for the Commissioner to suggest otherwise in circumstances where he himself arranged for the review to take place on a “without prejudice” basis in the hope that he might thereafter abandon the claim borders on deception. I therefore do not accept the contention that control has been established because “in any event, the notes in this case have been retrieved and reviewed”.[155]
The applicant otherwise correctly submits that the word “control” should be construed as broadly as possible so as to best attain the objects of the Act. That indeed has been the guiding line of the case law up to date. In Ottawa Football Club[156] a case under the Access Act, Strayer J. (as he then was) used the word “control” interchangeably with the word “custody”. The issue in that case was whether the fact that information had been provided to a government institution, under an express reservation of confidentiality was a barrier to access. Strayer J. stated:
The plain meaning of the language employed in the Act does not suggest that “information”, “government information”, or “record under the control” of the Government must be limited by some test as to how and on what terms the information or record came into the hands of the Government. That is the kind of qualification which the CFL is asking me to create. I can find no basis for doing so. The plain meaning of subsections 2(1) and 4(1) as quoted above is that the Act gives access, subject to many exceptions, to any record, or information in a record, which happens to be within the custody of the government regardless of the means by which that custody was obtained. That is surely the interpretation which is also most consistent with the purpose of the Act. The interpretation advanced by the CFL on the other hand, appears to be inconsistent with paragraph 20(1)(b) which it also relies on: that paragraph obviously assumes that “confidential information supplied to a government institution by a third party” is prima facie within the definition of “record” to which access would otherwise be available were it not for the possible protection of this paragraph. In other words, this exception proves the rule that confidential material supplied by a third party to the Government can form all or part of a “record under the control of a government institution”.[157]
The information in question had been supplied by the CFL to the Minister of Fitness and Amateur Sports with the view of obtaining financial or other relief to ensure its survival, a function which properly fell within the jurisdiction of the Minister concerned.
In Montana Band,[158] another access case, it was argued that financial statements provided by the Band to the Minister of Indian Affairs by virtue of a statutory requirement remained out of government control in light of the fiduciary relationship which existed between the Band and the Minister. Jerome A.C.J. held that the documents remained “under the control” of government despite the fiduciary relationship. He said:
While the Bands understandably find it repugnant that their private records could be made the subject of an access to information request, the fact remains that, because of the reporting requirements, copies of their financial statements are under government control.[159]
In so stating, Jerome A.C.J. again referred to the fact that the information in issue had been placed in the hands of government in the fulfilment of its statutory mandate.
The extent and ambit of the words “under the control” of government was again canvassed by the Court of Appeal in Canada Post.[160] The issue in that case was whether documents compiled by Public Works Canada for its use in providing property management and related services as agent of its principal, Canada Post Corporation were “under the control” of government. Létourneau J.A., responding to a strong dissent by Marceau J.A., concluded that the documents in question were under the control of Public Works Canada:
The notion of control referred to in subsection 4(1) of the Access to Information Act (the Act) is left undefined and unlimited. Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or “de jure” and “de facto” control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen’s right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government.
It is, in my view, as much the duty of courts to give subsection 4(1) of the Access to Information Act a liberal and purposive construction, without reading in limiting words not found in the Act or otherwise circumventing the intention of the legislature as “[i]t is the duty of boards and courts,” as Chief Justice Lamer of the Supreme Court of Canada reminded us in relation to the Canadian Human Rights Act , “to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.” As a general rule, “[I]n reading a statute words should not be added or deleted and the reader should not try to fill the gaps he thinks he sees.” It is not in the power of this Court to cut down the broad meaning of the word “control” as there is nothing in the Act which indicates that the word should not be given its broad meaning. On the contrary, it was Parliament’s intention to give the citizen a meaningful right of access under the Act to government information. As Lord Halsbury L.C. said in Bank of England v. Vagliano Brothers:
It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction. [Underlining in original text, footnotes omitted.][161]
Marceau J.A. had concluded that the words “under the control” meant more than mere custody or possession. His conclusion was based on an essential finding of fact, namely that the records in issue had not come into the possession of Public Works Canada in the course of the performance of any of its statutory functions. That is the context in which he stated that to equate “control” with “possession”:
… could lead to absurd results, as it would fail to catch records belonging to the Government but left in the hands of an outside custodian, but it would make subject to the Act documents falling into the hands of the institution by accident or illegally (as in the case of an illegal seizure).[162]
Bearing these observations in mind, Marceau J.A. went on to conclude:
… an institution may be said to have control over some record or information, and not only to be in possession thereof, when it can consider the information or record as its own so that it can keep it or dispose of it without regard to its nature or content and notwithstanding any objection of the individual concerned. And this, in my judgment, is realized only when the records have been compiled or created by the institution in the course of executing its official duties. [Underlining in original text.][163]
It is noteworthy that the majority decision is based on the finding that the factual basis which underlies the decision of Marceau J.A. was wrong. Indeed, after noting that Public Works Canada had possession and custody of the records, Létourneau J.A. found as a fact that the records had been collected by Public Works Canada “in the performance of its official duties”.[164] Keeping the foregoing in mind, the decision of the Court of Appeal stands for the proposition that records accumulated by a government institution are “under the control” of that institution irrespective of the nature or type of control being exercised over them, so long as they are held by the institution in the course of the performance of its statutory functions.[165]
It is apparent from the facts underlying the authorities on the meaning of the word “control”, that the information in issue in each case had come under the control and/or custody of the government institutions in the course of the fulfilment of their respective statutory functions. Information coming under the control of government in that manner is the obvious class of information which Parliament intended to make accessible when it enacted the Privacy Act and the Access to Information Act.[166]
I now turn to the record before me in so far as it pertains to the notes in issue and the control that was exercised over them. It is clear that there is no requirement either in the Canada Labour Code, or in the CLRB policy or procedure touching upon the notes. The notes are viewed by their authors as their own. The CLRB members are free to take notes as and when they see fit, and indeed may simply choose not to do so. The notes are intended for the eyes of the author only. No other person is allowed to see, read or use the notes, and there is a clear expectation on the part of the author that no other person will see the notes.[167] The members maintain responsibility for the care and safe keeping of the notes and can destroy them at any time. Finally, the notes are not part of the official records of the CLRB and are not contained in any other record keeping system over which the CLRB has administrative control.
In my view, it is apparent from the foregoing that however broadly one construes the word control, the notes in issue were not “under the control” of the CLRB within any of the meanings that can be attributed to that term. Not only are the notes outside the control or custody of the CLRB but they are also considered by the CLRB to fall outside the ambit of its functions.
Nevertheless, the record does suggest that the notes in question were kept by the members either at the office or at home, but most likely at the office.[168] A question therefore arises as to whether the mere fact that the notes may have been kept by the members on the premises of the CLRB could result in the Board having “control” over them as that word is used in paragraph 12(1)(b) of the Act.
I do not believe so. Admittedly, the fact that records are left or kept on the government institution’s premises allows for a de facto intrusion into these records by the institution. But that does not bring the records within the “control” of the institution as these words are used in paragraph 12(1)(b) of the Act. What is contemplated is control in any form so long as it is exercised in a lawful fashion.[169] It is inconceivable that the Privacy Act could compel a government institution to intrude into the records of a third party in breach of that person’s right to privacy in order to satisfy the privacy rights of others.
In its supplementary record by way of reply, the applicant further argued that even if the CLRB did not exercise control over the notes, it could nevertheless be expected to have exercised control over the notes in the ordinary course of conducting its operations. According to the applicant, that in itself is sufficient to constitute “control” over the notes.[170] In this respect the applicant points out that the word “control” is defined as “the power to direct”.[171] Paragraphs 15(a) and 15(q) of the Code are also relied upon. They provide the CLRB with the power to make regulations respecting:
15. …
(a) the establishment of rules of procedure for its hearings;
…
(q) such other matters and things as may be incidental or conducive to the proper performance of the duties of the Board under this Part.
According to the applicant, the CLRB could and should have relied on the foregoing provisions to assert control over the notes.
If the CLRB has chosen not to make regulations asserting governance or any form of control over the notes of its members, it is obviously because such a course of action was not considered to be conducive to the proper performance of its duties. I also doubt that the imposition of note-taking by the CLRB on its members or the exercise of some other form of control over them properly comes within the ambit of the CLRB’s rule making authority in so far as it relates to “procedure for its hearings”.
But be that as it may, the fact is that the CLRB does not purport to have and has not exercised any control over the notes be it de facto or de jure. This state of affairs is entirely consistent with the practice of administrative tribunals which itself is based on the practice of the judiciary. There is nothing which suggests that this practice is in any way inconsistent with the Code and in particular, no basis for the suggestion that the CLRB is somehow failing to exercise jurisdiction over the notes. I therefore come to the conclusion that the notes in issue are not “under the control” of the CLRB for purposes of paragraph 12(1)(b) of the Privacy Act.
5. Closing comments
In the written material filed by the Commissioner in this matter it is stated that the disclosure of the notes in issue could “promote the administration of justice” by encouraging decision makers to “respect the taking of notes”.[172] The Commissioner’s view is that decision makers should be compelled to take notes and government should assume control over these notes, thereby generating personal information banks available for review, correction and notation under his auspices. The potential disclosure of these notes to the individuals concerned could, according to the Commissioner, “enhance the persuasiveness of the Board’s decision-making process” and “encourage early settlement of the issues”.[173]
With respect, I believe that the Commissioner failed to appreciate the competing interest which militates against the disclosure that he is seeking in this matter, and ventured outside his area of expertise in taking the position that he did. The freedom which a decision maker must have to take notes is not intended “for the comfort of the Board members” as the Commissioner seems to think.[174] Rather it is an integral component of the duty of decision makers to decide matters before them freely and independently, as best they can without any restrictions, pressures or interferences from anyone or for any reason.
The Commissioner, without relying on any authority, simply chose to disregard the long established judicial practice which guards decision makers from intrusion into the thought process leading to their decision. He did so on the basis that, in his view, this practice was unnecessary and indeed harmful to the proper functioning of our legal system and despite the clear pronouncements of the courts which are primarily concerned with the due process of law. In professing to know how to better run the legal system, I believe that the Commissioner lost sight of the purpose and the limits which are inherent in his own legislation.
For these reasons, the application is dismissed with costs.
[1] R.S.C., 1985, c. P-21 (hereinafter the Privacy Act or the Act).
[2] R.S.C., 1985, c. L-2 (hereinafter the Code). S. 97 [as am. by S.C. 1991, c. 39, s. 2] states:
97. (1) Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that
(a) an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has contravened or failed to comply with subsection 24(4) or 34(6) or section 37, 50, 69, 94 or 95; or
(b) any person has failed to comply with section 96.
[3] S. 37 of the Code states:
37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.
[4] Gilles Charlebois (1993), 91 di 14 (C.L.R.B.), at p. 25 (hereinafter CLRB reasons). Mr. Charlebois applied to the Federal Court of Appeal for judicial review (by originating notice dated March 3, 1993) pursuant to s. 28 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)]. The application for judicial review was dismissed by the Court of Appeal on April 26, 1994: Charlebois v. Amalgamated Transit Union, Local 279 et al. (1994), 169 N.R. 144 (F.C.A.). The Court of Appeal stated, at p. 145 that:
The grounds upon which this court may undertake a review of the Board’s decision of February 3, 1993, are limited by s. 22(1) of the Code.
…
It is not suggested that there was in the Board’s handling of the complaint a denial of natural justice or that the Board acted, or failed to act, by reason of fraud. Neither is it contended that the Board lacked jurisdiction to hear and determine the applicant’s complaint.
The only question, therefore, is whether the Board committed an error in exercising its jurisdiction, such as entitles this Court to intervene. Put another way, was the Board’s interpretation of s. 37 patently unreasonable in the sense that it is “clearly irrational”?…. We are urged to set aside the decision on the ground, essentially, that the Board misinterpreted s. 37 of the Code, by concluding that the Union’s decision-making process under its constitution for determining whether a grievance should be sent to arbitration, did not run afoul of any of the provisions of that section.
In our view, no basis has been shown why this court should interfere with the Board’s decision. [Footnotes omitted.]
In addition to applying for judicial review of the Board’s decision, Mr. Charlebois sought reconsideration of his complaint by the Board. The matter was reconsidered by the original panel, and by letter dated May 27, 1994, the Board concluded that:
In the final analysis, there is nothing in the review submissions which have been placed before the panel that would cause it to alter its original decision. This review application is therefore dismissed.
Mr. Charlebois applied for leave to appeal the decision of the Court of Appeal to the Supreme Court of Canada. This application was dismissed on January 12, 1995 [[1995] 1 S.C.R. vi]. Mr. Charlebois’ efforts to seek the judicial review of the Board’s reconsideration came to an end on April 21, 1995, when the Court of Appeal dismissed his application for an order extending the time limit to seek judicial review.
[5] Applicant’s record, at p. 11.
[6] Applicant’s record, at p. 13.
[7] Applicant’s record, at pp. 15-19. In his letter of complaint, Mr. Charlebois notified the Privacy Commissioner that he required the information urgently, stating:
If possible, I need this information A.S.A.P. (as soon as possible) due to my limitation for submission at the Federal Board of Appeal. All great effort from your part will be greatly appreciated.
[8] Exhibit D to the affidavit of Joyce McLean; applicant’s record, at p. 20.
[9] S. 33 provides as follows:
33. (1) Every investigation of a complaint under this Act by the Privacy Commissioner shall be conducted in private.
(2) In the course of an investigation of a complaint under this Act by the Privacy Commissioner, the person who made the complaint and the head of the government institution concerned shall be given an opportunity to make representations to the Commissioner, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.
[10] Applicant’s record, at pp. 24-25.
[11] Applicant’s record, at pp. 28-29.
[12] Idem, at p. 29.
[13] The purpose of the review, according to a memorandum to file written by Ms. McLean and dated November 18, 1994, was to ascertain whether in fact the notes of the Board members contain personal information: see applicant’s record, at p. 30. The memorandum to file states:
It was decided that I would review the notes of the Board members to ascertain whether in fact they contain personal information. (Martine Nantel is to arrange this with the CLRB and let me know).
If the notes contain personal information, we would attempt to negotiate the CLRB allowing Mr. Charlebois to view the notes (but take no copies), under condition that this would not prejudice any future positions with respect to Board members’ notes. In that event, the complaint itself would be RESOLVED.
[14] Applicant’s record, at p. 8.
[15] 35. (1) If, on investigating a complaint under this Act in respect of personal information, the Privacy Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has control of the personal information with a report containing
(a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within a time specified therein, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
[16] Applicant’s record, at p. 36.
[17] 42. The Privacy Commissioner may
(a) apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose personal information requested under subsection 12(1) in respect of which an investigation has been carried out by the Privacy Commissioner, if the Commissioner has the consent of the individual who requested access to the information;
(b) appear before the Court on behalf of any individual who has applied for a review under section 41; or
(c) with leave of the Court, appear as a party to any review applied for under section 41.
[18] Applicant’s record, at p. 8.
[19] R.S.C., 1985, c. P-35 (hereinafter PSSRA).
[20] Affidavit of Philip Chodos, dated October 17, 1995, at para. 8.
[21] See R. 1610 of the Federal Court Rules [C.R.C., c. 663, as enacted by SOR/92-43, s. 19] which authorizes a judge to deal with the inadequacy of the record in the context of judicial review applications.
[22] These documents include:
— Mr. Charlebois’ initial complaint to the CLRB dated February 10, 1993;
— the Board’s decision dated February 3, 1993, the complainant’s application for judicial review pursuant to s. 28 of the Federal Court Act filed March 4, 1993;
— the complainant’s application for reconsideration by the CLRB dated February 15, 1994;
— the Federal Court of Appeal judgment dismissing the complainant’s application for judicial review dated April 26, 1994;
— the CLRB’s reconsideration decision dated May 27, 1994;
— the judgment of the Supreme Court of Canada refusing leave to appeal the Federal Court of Appeal’s decision dated January 12, 1995; and
— the Federal Court of Appeal’s judgment dated April 21, 1995 refusing an extension of time to allow the complainant to file an application for judicial review of the CLRB’s reconsideration decision.
[23] S. 3 provides in part as follows:
3. …
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
…
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
…
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
…
(g) the views or opinions of another individual about the individual,
…
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, ….
[24] Respondent’s memorandum of argument, at paras. 32-36.
[25] CHRT memorandum of points to be argued, at paras. 9-10.
[26] This argument is also put forward by the CITT which characterizes the members’ notes as “comments and reflections of members about the evidence and arguments presented at a hearing to assist them in their deliberative process”: see CITT memorandum of argument, at para. 7.
[27] Applicant’s record, at p. 56, para. 36.
[28] [1989] 2 F.C. 480(T.D.) (hereinafter Ottawa Football Club).
[29] [1989] 1 F.C. 143(T.D.) (hereinafter Montana Band).
[30] [1995] 2 F.C. 110(C.A.) (hereinafter Canada Post).
[31] Applicant’s supplementary application record, at paras. 7-9, 16 and 31.
[32] PSSRB’s memorandum of law, at para. 5.
[33] Respondent’s memorandum of argument, at para. 7; PSSRB’s memorandum of law, at paras. 18-19.
[34] PSSRB’s memorandum of law, at paras. 24-25.
[35] PSSRB’s memorandum of law, at paras. 40-43.
[36] 22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
…
(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation; or …
[37] Applicant’s memorandum of argument, at paras. 46-54.
[38] Applicant’s supplementary application record, at paras. 48-54.
[39] Respondent’s memorandum of argument, at paras. 46-47.
[40] Respondent’s supplementary memorandum of argument, at para. 57.
[41] Memorandum of law of the PSSRB, at para. 39.
[42] Memorandum of law of the PSSRB, at paras. 29-35.
[43] As applied to the judiciary this principle has been termed judicial independence and its corollary, the adjudicative privilege: see MacKeigan v. Hickman, infra, note 112, at pp. 840-841.
[44] R.S.C., 1985, c. A-1 (hereinafter the Access Act). As will be seen, the Privacy Act and the Access Act have a common origin and complement one another as they create two parallel rights of access. It is therefore useful to have in mind the scheme and purpose of both statutes when dealing with fundamental issues of construction arising under either one of these statutes.
[45] Access Act, s. 3.
[46] Ibid.
[47] Access Act, s. 7.
[48] Access Act, s. 10.
[49] Access Act, s. 54.
[50] Access Act, s. 30.
[51] Access Act, s. 37.
[52] Access Act, ss. 41, 42.
[53] Access Act, s. 72.
[54] S.C. 1976-77, c. 33.
[55] See Privacy Act, s. 3.
[56] These provisions have collectively become known as the Code of Fair Information Practices; see applicant’s supplementary application record, at para. 3.
[57] SOR/83-508 (hereinafter the Regulations).
[58] Privacy Act, s. 18.
[59] Privacy Act, s. 53.
[60] Privacy Act, s. 29 [as am. by S.C. 1992, c. 21, s. 37].
[61] Privacy Act, s. 35.
[62] Privacy Act, s. 41.
[63] Privacy Act, s. 42.
[64] This was described by the applicant as the Commissioner’s “auditing power” to ensure government compliance with the fair information practices of the code; see applicant’s supplementary record, at para. 5.
[65] Canada Post, supra, note 30, at p. 128, Létourneau J.A.
[66] [1989] 1 F.C. 265(C.A.) (hereinafter CMHC).
[67] Idem, at p. 274.
[68] Idem, at p. 276.
[69] [1995] 3 F.C. 199(C.A.) (hereinafter Dagg).
[70] Idem, at pp. 219-220.
[71] [1988] 3 F.C. 551(T.D.), at p. 557.
[72] [1994] 3 F.C. 527(T.D.), at p. 539.
[73] (1990), 41 F.T.R. 39 (F.C.T.D.), at pp. 45-46 (hereinafter Bombardier). The applicant argued that the correction grid was a document which represented “le support” for the personal information of which he was seeking disclosure.
[74] Idem, at p. 45.
[75] Dagg, supra, note 69.
[76] Idem, at p. 217.
[77] Idem, at p. 218.
[78] [1989] 1 F.C. 47(C.A.) (hereinafter Canada Packers).
[79] Idem, at p. 60.
[80] [1995] F.C.J. No. 926 (T.D.) (QL) (hereinafter Kaiser).
[81] Idem, at pp. 3-4.
[82] Letter from Privacy Commissioner to Chairman of the CLRB, dated July 12, 1994: see applicant’s record, at p. 28.
[83] Letter from Privacy Commissioner to Chairman of the CLRB, dated February 1, 1995: see applicant’s record, at p. 36.
[84] Memorandum of argument of the applicant, at para. 48.
[85] Supplementary application record of the applicant, at para. 33.
[86] Supplementary application record of the applicant, at para. 53.
[87] Memorandum of argument of the applicant, at para. 54.
[88] Supplementary application record of the applicant, at para. 46.
[89] Exhibit G to the affidavit of Joyce McLean, applicant’s record, at p. 31.
[90] Affidavit of Philip Chodos, dated October 17, 1995.
[91] The applicant argued that the evidence provided by Mr. Chodos in his affidavit was personal and could not be viewed as being of general applicability. I agree with the submission of counsel for the PSSRB that the evidence of Mr. Chodos should be read as an account of the typical contents of the notes taken by the members of boards such as the PSSRB and CLRB.
[92] Canada Labour Code, supra, note 2, s. 9.
[93] Idem, s. 10.
[94] Idem, s. 15.
[95] Canada Labour Code, s. 22. S. 18.1(4) of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5] reads as follows:
18.1 ….
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
[96] The duty and power of the CLRB in receiving a complaint under s. 97 are stated in s. 98 of the Code which reads in part as follows:
98. (1) Subject to subsection (3), on receipt of a complaint made under section 97, the Board may assist the parties to the complaint to settle the complaint and shall, where it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint.
S. 99 [as am. by S.C. 1991, c. 39. s. 3] of the Code grants the CLRB broad powers to remedy contraventions of the Code in respect to complaints under ss. 24(4), 34(6) [as am. idem, s. 1], 37, 50, 69, 94, 95 or 96.
[97] [1995] 1 S.C.R. 157 (hereinafter CBC).
[98] CBC, supra, note 97, at p. 179, applying the test prescribed by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.
[99] Idem, at pp. 179-180.
[100] Idem, at pp. 183-184.
[101] Valente v. The Queen et al., [1985] 2 S.C.R. 673 (hereinafter Valente).
[102] Idem, at p. 687.
[103] Idem, at p. 689.
[104] Idem, at pp. 711-712.
[105] Beauregard v. Canada, [1986] 2 S.C.R. 56 (hereinafter Beauregard).
[106] Idem, at p 69.
[107] Idem, at p. 70.
[108] Idem, at p. 73.
[109] R. v. Lippé, [1991] 2 S.C.R. 114 (hereinafter Lippé).
[110] Idem, at pp. 152-153.
[111] Idem, at p. 153.
[112] MacKeigan v. Hickman, [1989] 2 S.C.R. 796 (hereinafter MacKeigan).
[113] Idem, at pp. 840-841.
[114] Idem, at pp. 827-828.
[115] Idem, at pp. 830-831.
[116] Affidavit of Philip Chodos, dated October 17, 1995, at para. 7.
[117] Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (hereinafter Matsqui).
[118] Idem, at p. 67.
[119] Idem, at pp. 49 and 51.
[120] Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952 (hereinafter Tremblay).
[121] Idem, at pp. 964-966.
[122] This result is not surprising. The requirement that the courts be completely separate in authority and function from all other participants in the justice system was held in Beauregard [at p. 73] to flow from the role of the courts as “resolver of disputes, interpreter of the law and defender of the Constitution.” The CLRB shares at least two of these roles; s. 22 of the Code makes the CLRB the ultimate resolver of disputes and interpreter of the law in the area of industrial relations in Canada over which the Code grants it jurisdiction.
[123] Tremblay, supra, note 120, at p. 966.
[124] The basis for this duty in this case is statutory, and is defined by s. 22 of the Canada Labour Code and ss. 28 and 18.1 of the Federal Court Act. The supervisory au-thority of superior courts over administrative tribunals in the case of an alleged want or excess of jurisdiction has been held to have its source in the Constitution: Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220.
[125] Douville c. Commission de la santé et de la sécurité du travail du Québec, [1993] C.A.I. 266 (hereinafter Douville).
[126] Idem, at p. 268.
[127] Charter of Human Rights and Freedoms, R.S.Q., c. C-12. S. 23 provides in part that:
23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
[128] Canadian Bill of Rights, R.S.C., 1985, App. III.
[129] See the directions of the Privacy Commissioner to the Chairman of the CLRB upon concluding that the notes were not exempt from disclosure: applicant’s record, at p. 36. See also s. 6 of the Act and s. 4 of the Regulations.
[130] S. 108 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 [as am. by S.C. 1992, c. 54, s. 77] provides that:
108. No member of the Board or of an arbitration board, a conciliation board or a designation review panel established under section 78.1 or 78.4, no arbitrator, conciliation commissioner, adjudicator, conciliator or officer or employee of or person appointed by the Board and no fact finder appointed under section 54.1 shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of duties under this Act.
S. 111 of the Ontario Labour Relations Act, R.S.O. 1990, c. L. 2 provides that:
111. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
[131] Agnew v. Ontario Assn. of Architects (1987), 64 O.R. (2d) 8 (Div. Ct.) (hereinafter Agnew).
[132] The relevant provision of the Architects Act, 1984, S.O. 1984, c. 12, provides in part:
43. (1) Every person engaged in the administration of this Act, including any person making an examination or review under section 32 or an investigation under section 38, shall preserve secrecy with respect to all matters that come to his knowledge in the course of his duties, employment, inquiry or investigation and shall not communicate any such matters to any other person except,
(a) as may be required in connection with the administration of,
(i) this Act and the regulations and by-laws, or
(ii) the Professional Engineers Act, 1984 and the regulations and by-laws under that Act, or any proceedings under
(iii) this Act or the regulations, or
(iv) the Professional Engineers Act, 1984 or the regulations under that Act;
(b) to his counsel; or
(c) with the consent of the person to whom the information relates.
(2) No person to whom subsection (1) applies shall be required to give testimony or to produce any book, record, document or thing in any action or proceeding with regard to information obtained by him in the course of his duties, employment, inquiry or investigation except in a proceeding under this Act or the regulations or by-laws or a proceeding under the Professional Engineers Act, 1984 or the regulations or by-laws under that Act.
[133] Agnew, supra, note 131, at p. 14.
[134] Idem, at pp. 16-17.
[135] This would seem to be consistent with the decision of the Supreme Court in Beauregard, where Dickson C.J. held that the requirement for judicial independence flows, in part, from the role of the courts as resolver of disputes and interpreter of the law. This role is shared by administrative tribunals and exercised in their given areas of jurisdiction.
[136] Ellis-Don Ltd. v. Ontario Labour Relations Board (1994), 16 O.R. (3d) 698 (Div. Ct.) (hereinafter Ellis-Don).
[137] S. 111 read as follows:
111. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
[138] Ellis-Don, supra, note 136, at p. 709.
[139] Idem, at p. 714.
[140] This argument was not advanced in the applicant’s memorandum of argument.
[141] S. 21(1)(b) of the Access to Information Act read in conjunction with s. 21(2)(a).
[142] Canadian citizens and permanent residents, s. 4(1).
[143] S. 2(1).
[144] As such, the Act would be more accurately labelled as the “Access to Records Act”.
[145] Information; 3. Knowledge acquired in any manner; facts; data …: Webster’s New World Dictionary of the American Language, 2nd college ed. (New York: Simon and Schuster, 1985).
It is noteworthy that, under the Act, the term “personal information” is primarily defined as meaning “information about an identifiable individual” [underlining added].
[146] Opinion; 1. a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one’s own mind; judgment 2. an evaluation, impression or estimation, [etc.] 3. the formal judgment of an expert (…) 4. Law, the formal statement by a judge, court referee, etc. of the law bearing on a case: Webster’s New World Dictionary of the American Language, 2nd college ed. (New York: Simon and Schuster, 1985).
[147] S. 2 of the Privacy Act.
[148] S. 4 of the Privacy Act.
[149] S. 6(2) of the Privacy Act.
[150] S. 12 of the Privacy Act.
[151] See complainant’s letter of April 6, 1993 to the Privacy Commissioner, applicant’s record, at p. 19, where he states: “I need this information A.S.A.P. (as soon as possible) due to my limitation for submission at the Federal Board (sic) of Appeal.” While the Access Act lends itself to being used as an aid to litigation because of its wide ambit, recourse to the Privacy Act should, in principle, be motivated primarily by concerns relating to privacy and the Commissioner should bear this in mind in assessing the propriety of the claims which are submitted to him.
[152] “A judgment and a judge’s reasons for judgment must be put on record and are subject to scrutiny on appeal by the legal community and by the public at large…. The reasons and the decisions speak for themselves. If they are to be questioned an effective and comprehensive means of challenging them is provided by appellate procedures”: per Cory J. in MacKeigan, supra, note 112, at p. 841.
[153] There is a difference in kind between “consultations” and “deliberations” “involving” decision makers, and notes taken by a decision maker in the course of a hearing. Bearing in mind that the exemptions are to be strictly construed, it is doubtful that notes per se are exempt.
[154] As such, the present application has ramifications pertaining to disclosure which reach beyond the Privacy Act.
[155] Applicant’s memorandum of argument, at para. 36.
[156] Supra, note 28.
[157] Idem, at pp. 485-486.
[158] Supra, note 29.
[159] Idem, at p. 151.
[160] Supra, note 30.
[161] Idem, at pp. 127-129. Pratte J.A. concurred.
[162] Canada Post, supra, at p. 122. The first proposition is questionable as it seems clear to me that control over records by a government institution can exist irrespective of where custody lies. The more interesting issue is raised by the second proposition.
[163] Canada Post, supra, at p. 123.
[164] Canada Post, supra, at p. 130.
[165] Canada Post, supra, at p. 128.
[166] The question as to whether information coming into custody of a government institution otherwise than in the course of its statutory function would be accessible remains undecided. So far, only Marceau J.A. has opined on this point and he has expressed strong views in support of the proposition that such information should not be accessible under the Access Act. See Canada Post, supra, at pp. 120-128.
[167] The only reason why the notes were seen by another person in this instance is the “without prejudice” review that was made at the instigation of the Commissioner. See applicant’s motion record, at pp. 29 and 30.
[168] Memorandum to file by Joyce McLean dated November 29, 1994: applicant’s record, at p. 31.
[169] Strayer J. could not have had in mind anything other than lawful custody when he stated that the Access to Information Act extended to any record in the custody of government “regardless of the means by which … custody was obtained”. Ottawa Football Club, supra, note 28 at p. 485.
[170] Applicant’s supplementary application record, at para. 31.
[171] The Dictionary of Canadian Law, (1991) is quoted as the source of this definition.
[172] Applicant’s supplementary application record, at para. 53.
[173] Letter from the Privacy Commissioner to the Chairman of the CLRB, dated June 12, 1994: applicant’s record, at p. 29.
[174] Applicant’s supplementary application record, at para. 33.