Federal Appeal

Privacy Legislation

Overbroad claim of confidentiality was wrong at law

This was appeal of dismissal of application for judicial review. Appellant was lawyer and represented or advised persons in conjunction with immigration proceedings or applications. Citizenship and Immigration Canada (“CIC”) decided that appellant was not “authorized representative” as defined in s. 2 of Immigration and Refugee Protection Regulations (Can.). Result was that appellant was no longer able to provide services to his clients. Appellant made request for access to information under Privacy Act (Can.). CIC refused appellant’s request based on third-party information and solicitor-client exemptions found in ss. 26 and 27 of Act. Appellant applied for judicial review. Applications judge held that CIC correctly found that withheld information fell within ss. 26 and 27 of Act and that discretionary decision not to disclose exempt material was reasonable. Applications judge dismissed judicial review application. Appeal allowed. Contents of confidential record were problematic because it contained non-confidential information and submissions. Overbroad claim of confidentiality was wrong at law. Proceedings of Canadian courts were open and accessible to public. Fairness required that party know case to be met. CIC failed to provide evidentiary basis that was sufficient to permit appellate court or Federal Court to properly review decision to withhold access to personal information from appellant. Decisions of administrative decision-makers must be transparent and intelligible. Evidentiary record was so thin that court could not properly assess whether decisions were correct or reasonable. It could not be determined who applied exemptions to documents, what definition of exemptions was used and what consideration was given to exercise of discretion. Material did not provide court with basic information it needed to discharge its role on judicial review. Reasons did not show that decision-maker was aware of discretion to release exempted information and exercised discretion in one way or other. Decision could not be rendered on paucity of evidence. Case was remitted to different decision-maker for redetermination.

Leahy v. Canada (Minister of Citizenship and Immigration)

(Sep. 4, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-302-11) Decision at 206 A.C.W.S. (3d) 152 was reversed. 221 A.C.W.S. (3d) 1009.

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