T-2687-85
Information Commissioner (Applicant)
v.
Minister of Fisheries and Oceans (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADA (MINISTER OF FISHERIES AND OCEANS)
Trial Division, Denault J.—Ottawa, February 15
and March 22, 1988.
Access to information — Names of recipients of permits to
observe seal hunt withheld on ground exempt under Access to
Information Act, s. 19 as personal information — Privacy Act,
s. 3(l) definition of "personal information" interpreted —
Phrase "including granting of licence or permit" clarifying
meaning of "discretionary benefit of financial nature", not
additional exception to definition — Permits in question per
sonal information as not discretionary benefit of financial
nature.
Privacy — Privacy Act, s. 3(1) definition of "personal infor
mation" interpreted — "Including granting of licence or per
mit" clarifying "discretionary benefit of financial nature" not
additional exception to definition.
Fisheries — Names of recipients of permits under Seal
Protection Regulations to observe seal hunt withheld under
Access to Information Act — Privacy Act, s. 3(1) definition of
"personal information" interpreted — Permits in question not
discretionary benefits of financial nature — Constitute person
al information.
This was an application pursuant to paragraph 42(1)(a) of
the Access to Information Act for a review of the respondent's
refusal to disclose the names of the recipients of permits to
observe the seal hunt from 1975-1983. The Department of
Fisheries and Oceans took the position that the information
sought was personal and therefore exempt from disclosure
pursuant to section 19 of the Access to Information Act. The
Information Commissioner advised that such information
should be disclosed under the exception to the definition of
personal information in section 3 of the Privacy Act. That
exception provides that personal information does not include
"information relating to any discretionary benefit of a financial
nature, including the granting of a licence or permit". The
applicant submitted that the words "including the granting of a
licence or permit" in paragraph 3(1) creates an additional
exception to the definition of "personal information". The issue
was whether the words "the granting of a licence or permit"
extend the term "discretionary benefit of a financial nature", or
whether they were intended as a specific illustration of a type of
benefit intended to be encompassed by the exception.
Held, the application should be dismissed.
It is clear from the structure of the section that the phrase
"including the granting of a licence or permit" is intended to
clarify the extent of the preceding phrase "discretionary benefit
of a financial nature". This is even clearer in the French version
which uses the word "notamment" which translates as "not-
ably, especially" or "particularly". This construction does not
result in a redundancy. The words "licence or permit" are not
synonymous with discretionary financial benefit as there are
licences and permits which are not of a financial nature.
The applicant argued that the purpose behind the exclusions
in the definition of personal information was to require disclo
sure of information relating to the dispensing of government
largesse and that material relating to the grant of any licence or
permit should be publicly available. Such a broad interpreta
tion was supported neither by the purposes of the two Acts nor
by the plain meaning of the words in paragraph 3(l). The
question as to whether a permit issued under subsections 11(8)
and (9) of the Seal Protection Regulations comes within the
meaning of paragraph (1) of the definition of personal informa
tion in section 3 of the Privacy Act was to be answered in the
negative.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 2, 19, 42(1)(a).
Privacy Act, S.C. 1980-81-82-83, c. 111 (Schedule II), ss.
2, 3.
Seal Protection Regulations, C.R.C., c. 833, s. 11 (as am.
by SOR/78-167, s. 3).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Dilworth v. Commissioner of Stamps, [1899] A.C. 99
(P.C.); Phillips v. Joseph, [1932] 4 D.L.R. 261 (Ont.
C.A.); United Brotherhood of Carpenters and Joiners of
Amer. Loc. 1928 v. Citation Indust. Ltd. (1983), 46
B.C.L.R. 129 (S.C.).
AUTHORS CITED
Driedger, Elmer A., Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
M. L. Phelan and P. J. Wilson for applicant.
Barbara Mcisaac for respondent.
SOLICITORS:
Osier, Hoskin & Harcourt, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
DENAULT J.: This is an application pursuant to
paragraph 42(1)(a) of the Access to Information
Act [S.C. 1980-81-82-83, c. 111 (Schedule I)],
filed December 11, 1985. The Information Com
missioner seeks a review of the respondent's refus
al to disclose to Ainslie Willock copies of applica
tions requesting permission under the Seal
Protection Regulations, C.R.C., c. 833, as amend
ed, for access to the seal hunt from 1975-1983 in
respect of which permits were ultimately granted.
By request dated August 17, 1983, Ainslie Wil-
lock (the "complainant") made an access to infor
mation request to the Department of Fisheries and
Oceans for "copies of all applications requesting
permission under the Seal Protection Regulations
to access the seal hunt 1975-1983."
The complainant was informed by the Depart
ment of Fisheries and Oceans that her request was
being refused on grounds that the information
sought was personal information and exempt from
disclosure pursuant to section 19 of the Access to
Information Act. Section 19 provides that the head
of government institution shall refuse to disclose
any record requested under the Act which contains
personal information as defined in section 3 of the
Privacy Act [S.C. 1980-81-82-83, c. 111 (Schedule
II)]. Miss Willock complained to the Information
Commissioner about the refusal to disclose the
records to her.
The matter was investigated by the Information
Commissioner, and by letter dated September 10,
1985, the Assistant Information Commissioner
wrote to the Minister of Fisheries and Oceans that
the office of the Information Commissioner
"agreed generally with your officials that the
requested records are indeed personal information
since they include the names and other identifying
characteristics of persons who have applied for
Seal Hunt Visitors Permits." However, the Infor
mation Commissioner went on to advise that,
"details of the applications should be disclosed in
those cases where permits ultimately were granted,
since those records came under the exception of
the definition of personal information in section 3
of the Privacy Act."
It was the position of the Information Commis
sioner's office that permits which were granted
resulted in the information falling under an excep
tion to the definition personal information con
tained in section 3 of the Privacy Act. That excep
tion reads as follows:
3....
but, for the purposes of ... section 19 of the Access to
Information Act, [personal information] does not include
(1) 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.....
By letter to the Assistant Information Commis
sioner dated October 16, 1985, Pierre Asselin,
Q.C., Senior Counsel to the Department of Fisher
ies and Oceans, responded to the Assistant Com
missioner's recommendation by refusing to disclose
information relating to those permit applications
which were granted on grounds that information
relating to the granting of a licence or permit is
only subject to disclosure where such granting
constitutes a discretionary benefit of a financial
nature, and that permits to visit and observe the
seal hunt are not discretionary benefits of a finan
cial nature.
The permits in question are issued by the
Department of Fisheries and Oceans in accordance
with subsections 11(6), (7), (8) and (9) of the Seal
Protection Regulations, C.R.C., c. 833, as amend-
ed [by SOR/78-167, s. 3]. Those Regulations pro
vide as follows:
11....
(6) No person shall, unless he is the holder of a licence or a
permit, approach within half a nautical mile of any area in
which a seal hunt is being carried out.
(7) Subsection (6) does not apply to
a) commercial flights operating on scheduled flight plans;
b) a peace officer employed by or assisting the Department
of the Environment;
c) scientists, technicians and observers employed by the
Department of the Environment or are present at a seal hunt
at the request of the Department of the Environment; and
d) commercial vessels transiting waters in which a seal hunt
is being conducted.
(8) An application for a permit required pursuant to subsec
tion (6) shall be in the Minister's office on or before the 20th
day of February in respect of the year for which the permit is
requested.
(9) An application for a permit required pursuant to subsec
tion (6) shall contain;
a) the name, address, professional association and occupa
tion of every person to be covered by the permit;
b) a detailed statement of the reasons why the permit is
required;
c) the method of transportation that will be used to go to
and from the area of the seal hunt;
d) the name, number or description of the vehicle that will
be used to go to and from the area of the seal hunt;
e) the area and dates for which the permit is required; and
f) such other information as may be required to verify or
explain the information required in paragraphs (a) to (e).
A copy of a permit application, in blank, is
included in the application record and so is a copy
of a seal hunt access permit. In his memorandum
of argument, the respondent concedes that there
may be some information in the applications in
question which would not or could not identify the
individual in question. To the extent that such
information can reasonably be severed from the
rest of the document, the respondent is prepared to
release it under section 25 of the Act. Indeed,
during the course of these proceedings, all infor
mation in the applications except the names of
certain permit recipients, was released to the com
plainant. The issue in this application, therefore, is
limited to the disclosure of those names.
The parties have agreed that the matter of
whether or not disclosure should be made of the
records remaining in issue, consisting of the undis
closed names of those who were granted permits,
may be resolved by answering the following
question:
Is a permit issued pursuant to Subsections (8) and (9) of
Section 11 of the Seal Protection Regulations, C.R.C. 1978, c.
833 as amended, "information relating to any discretionary
benefit of a financial nature, including the granting of a licence
or permit, conferred on an individual" within the meaning of
paragraph (1) of the definition of personal information in
Section 3 of the Privacy Act?
Section 19 of the Access to Information Act
provides as follows:
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 sec
tion 3 of the Privacy Act.
(2) The head of a government institution may disclose any
record requested under this Act that contains personal informa
tion 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.
Section 3 of the Privacy Act defines "personal
information" as:
3....
... information about an identifiable individual that is recorded
in any form including, without restricting the generality of
the foregoing.....
Thereafter, paragraphs (a) through (i) give some
specific examples of personal information. The
definition then goes on to provide:
3....
but, for the purposes of sections 7, 8 and 26 and section 19 of
the Access to Information Act, does not include
(1) 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
The sole issue to be determined in this review is
whether, on a plain reading of paragraph (1) of
section 3 of the Privacy Act the words, "the grant
ing of a licence or permit", are meant to extend
the term "discretionary benefit of a financial
nature" or whether they were intended by Parlia-
ment as a specific illustration of a type of benefit
intended to be encompassed by the exception.
According to the applicant, the names of those
who are granted permits pursuant to subsections
(8) and (9) of section 11 of the Seal Protection
Regulations, are not, for purposes of section 19 of
the Access to Information Act, "personal informa
tion", by virtue of paragraph 3(1) of the Privacy
Act, which excludes from the definition of "per-
sonal information", inter alla, information relating
to the granting of a licence or permit. The appli
cant submits that the addition of the words
"including the granting of a licence or permit" in
paragraph 3(1) creates an additional exception to
the definition of "personal information".
The argument continues:
Thus information relating to the granting of a licence or
permit is also to be disclosed pursuant to that paragraph, in
addition to information relating to discretionary benefits of a
financial nature. Where the name of the recipient of a licence
or permit is requested, therefore, it need not be shown that the
granting of the licence or permit confers a "financial benefit of
a discretionary nature" in order for the information to be
disclosed.
(Applicant's Memorandum of Argument, para. 12)
In support of this proposition the applicant cites
several decisions in which the word "including"
has been interpreted to enlarge the meaning of
words or phrases used in the body of a statute.
(See, for example, Dilworth v. Commissioner of
Stamps, [1899] A.C. 99 (P.C.), at pages 105-106;
Phillips v. Joseph, [1932] 4 D.L.R. 261 (Ont.
C.A.), at page 265; United Brotherhood of Car
penters and Joiners of Amer. Loc. 1928 v. Citation
Indust. Ltd. (1983), 46 B.C.L.R. 129 (S.C.), at
pages 133-134 and Driedger, Elmer A., Construc
tion of Statutes (2nd ed. Toronto: Butterworths,
1983), at pages 18-20, 115). The applicant con
tends that if the words "including the granting of a
licence or permit" were intended only to enlarge
the phrase "discretionary benefit of a financial
nature" they would be redundant.
I do not agree. It is clear from the structure of
the section that the phrase following "including" is
intended to extend the phrase which appears
immediately before it, namely "discretionary ben
efit of a financial nature." This is even clearer in
the French version which uses the word "notam-
ment" which translates as "notably", "especially"
or "particularly". (Larousse, Dictionnaire
moderne (Canada, 1984)). This construction does
not result in a redundancy. The words "licence or
permit" are not synonymous with discretionary
financial benefit. There are licences and permits
which are not of a financial nature, and it is not
immediately obvious that the granting of any
licence will, in itself, result in a financial benefit to
the holder. The use of the phrase to clarify the
extent of the exemption is understandable.
The applicant urges me to recognize and bal
ance the purposes of the Access to Information
Act and the Privacy Act when construing this
section. I believe that to be an entirely appropriate
approach to this problem, but it leads me to a
different conclusion from that of the applicant.
The purpose sections of the two statutes are as
follows:
Access to Information Act
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.
Privacy 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
such information.
The definition of personal information in section
3 of the Privacy Act, as indicated above, is divided
into two parts. The first sets out what is to be
included in personal information, the second sets
out the exclusions. The applicant argues that the
purpose behind the exclusion provisions is to
require disclosure of information relating to the
dispensing of government privileges or largesse.
She concludes that material relating to the grant
of any licence or permit should be publicly
available.
I do not find such a broad interpretation to be in
keeping with the purposes of the two Acts. It is
easy to imagine cases where information regarding
the issuance of a licence would be profoundly
personal and private and of little use or interest to
the public. Should applications for marriage
licences be disclosed? Or, within the federal juris
diction, should the government be forced to release
applications for private pilots' licences, or permits
to camp or hold demonstrations on federal Crown
land? Many of these would involve information
which falls under the first part of section 3. I
would be most reluctant, therefore, to interpret
paragraph 3(1) to exclude from personal informa
tion information relating to the grant of any
licence or permit.
In the final analysis, however, such consider
ations are really unnecessary. The plain meaning,
in either language, of the words of paragraph 3(1)
of the Privacy Act simply does not support the
interpretation for which the applicant contends.
Information relating to the grant of a licence or
permit will only fall under paragraph 3(I) if the
licence or permit constitutes a discretionary ben
efit of a financial nature. The licences in question
here are not of that nature.
The preliminary question must therefore be
answered in the negative, and the application is
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.