ACCESS TO INFORMATION
Judicial review of Canadian Human Rights Commission’s decision ordering disclosure of “CIBC Employment Equity Compliance Report” (Final Report)—In June 2000 Commission informing applicant would be subject to employment equity compliance review audit—In November 2002 Commission received written request under Access to Information Act (ATIA) for release of CIBC Interim Employment Equity Report—Commission deciding to withhold interim report on basis of ATIA, s. 20(1)(b) (confidential commercial information supplied by applicant to Commission)—In 2004 Commission informing applicant had received request for access to final report—After considering applicant’s opposition based on same grounds as challenged release of interim report, Commission informing applicant intended to disclose final report in entirety—Subsequently informing applicant decision not to release interim report based on ATIA, s. 16(1)(c) (disclosure might injure lawful investigation) and not s. 20(1)(b) as earlier stated— Commission not providing substantial reasons for decision to release final report, stating only insufficient information to justify exempting requested record from disclosure— Legislative framework (Access to Information Act, Employment Equity Act) reviewed—Standard of review of correctness applied to decision to disclose Final Report—(1) While ATIA, s. 6 requiring access request to be made in writing, primary purpose of section to ensure request sufficiently detailed so as to allow institution to readily identify record—Commission never received written request for access to Final Report—No reviewable error by accepting second oral request as sufficient to engage its jurisdiction under ATIA—While second written request desirable, failure to comply strictly with s. 6 not rendering Commission’s decision void—Accepting second oral request satisfying spirit, purpose of ATIA i.e. to provide access to information under control of government institutions—Commission not functus officio because it made final decision not to disclose Interim Report and not having received new access request in writing—Matol Botanical International Inc. v. Canada (Minister of National Health and Welfare) (1994), 84 F.T.R. 168 (F.C.T.D.) distinguished—(2) No merit to applicant’s contention Final Report within “statutory privilege” of s. 34, cannot be disclosed without written consent of applicant—S. 4(1) providing provisions of ATIA apply “notwithstanding any other Act of Parliament”— ATIA taking precedence over other statutory provisions restricting disclosure, except for those provisions in Sch. II of ATIA—As s. 34 not listed in Sch. II, Parliament not intending s. 34 to operate to prevent disclosure of record that could otherwise be disclosed under ATIA—Case law supporting broad, purposive approach to construing meaning of “control” in “under the control of a government institution” in s. 4(1)—Possession generally sufficient—Andersen Consulting v. Canada, [2001] 2 F.C. 324 (T.D) wherein held record not under control of Crown because of implied undertaking rule (prohibiting disclosure of information obtained in process of discovery in civil action), distinguished—Final Report “under the control” of Commission—(3) Commission provided applicant with meaningful opportunity to participate in proceeding—No confusion as to record subject to access request—Applicant’s argument relied on similarities between Interim, Final Reports in making submission opposing release of latter report rejected—Two reports dissimilar in substance—Applicant not suggesting how its submissions in response to request for access to Final Report would have differed had it known interim Report released on basis of s. 16(1)(c) instead of s. 20(1)(b)—(4) Commission’s compliance review audit constituting “investigation” as defined in ATIA, s. 16(4)— Compliance review audit “lawful investigation” for purposes of s. 16(1)(c) exemption—Whether s. 16(1)(c) may still be engaged when lawful investigation concluded—Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 holding investigations covered under Privacy Act, s. 22(1)(b) not limited to current investigations or to identifiable prospective investigation—As Privacy Act, s. 22(1)(b) essentially same as ATIA, s. 16(1)(c), S.C.C.’s interpretation of “investigation” adopted—First question in determination of whether information should be exempted under s. 16(1)(c): whether information in Final Report within ambit of s. 16(1)(c)—Applicant not establishing confident or reasonable belief for assertion disclosure of Final Report could be injurious to future employment equity compliance review audits—Information not within ambit of s. 16(1)(c)—(5) Final Report centred on workforce information, information concerning employment policies, practices—(i) As human resources single most important element to commercial enterprise, information commercial—(ii) Confidentiality must be established on objective standard— Indicia of confidentiality—(a) Not in public domain—Much of workforce data in Final Report already in public domain— Information about specific recruitment and hiring strategies may not be otherwise publicly accessible, but not necessarily leading to conclusion confidential—(b) Applicant’s conten-tion reasonably expected Final Report would not be disclosed, rejected—Confidential requirement in Employment Equity Act, s. 34 superseded by obligations under ATIA—Also applicant should have known all of information under control of Commission subject to disclosure requirements of ATIA— (c) Public benefit in employee participation in employment equity surveys acknowledged—But no evidence supporting applicant’s contention employees would consider confiden-tiality violated if information in Final Report released to public—Applicant not establishing public interest best served by treating Final Report as confidential, with exception of two passages—(iii) Application of considerations set out in case law to determine whether those two commercial, confidential passages supplied by applicant—Information in Final Report reflecting Compliance Review Officer’s assessment, judgment, recommendations with respect to applicant’s compliance with obligations under EEA not information supplied by applicant to Commission—But information in Final Report essentially documenting specific steps taken by applicant in bringing itself into compliance with employment equity obligations information supplied to Commission by applicant—Details of applicant’s recruitment, selection of employees, hiring process examples of information supplied by applicant—Information clearly emanating from applicant information satisfying third criterion under s. 20(1)(b)—Information in those two passages consistently treated in confidential manner—(iv) Concerning remainder of information, nothing in applicant’s undertaking information collected from workplace census would be kept confidential suggesting aggregate responses would be kept confidential—Applicant treating information about individual employees as confidential—With exception of two passages, s. 20(1)(b) exemption not applicable—(6) S. 20(1)(c) providing mandatory exemption of information that could result in injury to third party—According to case law, must adduce evidence of harm that could reasonably be expected to be caused by disclosure if relying on s. 20(1)(c)—Evidence adduced by applicant not establishing material financial loss or reasonable expectation of harm to competitive position if Final Report is disclosed—(7) ATIA, s. 19 providing mandatory exemption for records constituting “personal information”—Privacy Act, s. 3 defining “personal information” as information about identifiable individual recorded in any form—Final Report not containing any personal information exempted under s. 19—(8) Non-exempt information ordered severed and disclosed—Access to Information Act, R.S.C., 1985, c. A-1, ss. 4(1) (as am. by S.C. 1992, c. 1, s. 144(F); 2001, c. 27, s. 202), 6, 16, 19, 20, 34—Employment Equity Act, S.C. 1995, c. 44, s. 34—Privacy Act, R.S.C., 1985, c. P-21, ss. 3 “personal information”, 22(1)(b).
Canadian Imperial Bank of Commerce v. Canada (Chief Commissioner, Human Rights Commission) (T‑1941-04, 2006 FC 443, Blanchard J., order dated 24/4/06, 94 pp.)