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Federal Access to Information and Privacy Legislation Annotated 2019
By: Professor Michel W. Drapeau, (Colonel Ret'd), OMM, CD, LL.L, LL.B, Marc-Aurèle Racicot, B.Sc., LL.B., LL.M.
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A key publication by two of the country's leading access and privacy lawyers

This practical reference is comprehensive in scope, containing everything you need to interpret and apply federal access to information and privacy legislation. In addition to expert analysis, it also contains a compendium of key materials. Table of Contents

Highlights include:

Chapter 1 Annotated Access to Information Act — Statutory Prohibitions Against Disclosure: Section 24 – In this case, Defence Construction Canada asserted for the first time a new mandatory exemption from disclosure found in s. 30 of the Defence Production Act, an exemption that applies due to s. 24 and Schedule II of the Access to Information Act. The Federal Court held that it was too late for Defence Construction Canada to assert the mandatory exemption. On appeal, the majority stated that “[i]n these particular circumstances, the Federal Court was bound to allow Defence Construction Canada an opportunity to adduce evidence supporting its late assertion of the mandatory exemption...[w]ith that evidence before it, the Federal Court could have considered the mandatory exemption and the jurisprudential issue and the fact-based issue associated with it.” The case was sent back to the Federal Court for rehearing: UUCANU Manufacturing Corp. v. Defence Construction Canada, 2017 FCA 133.

Chapter 1, Annotated Access to Information Act — Section 20: Third Party Information – In this application, Air Transat was seeking a judicial review of a decision rendered by Transport Canada (TC) on April 18, 2016 that authorized the disclosure of an inspection report regarding Air Transat, prepared by TC in 2003. Air Transat was also seeking to set aside a report prepared by the Commissioner on February 25, 2016, which recommended that TC disclose the inspection report regarding Air Transat. The information access requester had filed a complaint with the Information Commissioner on July 19, 2005. The Court concluded, “In light of the confidential nature of the pilot project, the exchange of confidential information between Air Transat and TC for the purposes of the pilot project, the fact that each airline must nonetheless develop its own air safety system, and the fact that the expertise of the people involved and the methodology adopted (information available in the Report) were used by Air Transat to create an effective and optimal air safety system for itself, I consider that the information constitutes trade secrets and cannot be disclosed under paragraph 20(1)(a) of the AIA”: Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 10.

Chapter 6, Annotated Privacy Act — Section 2: Purpose of the Act – During the Independent Assessment Process (IAP) at the request of the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat and the Truth and Reconciliation Commission, the supervising judge ordered the destruction of the records following a 15-year retention period. The Attorney General of Canada argued that the IAP documents were “under the control of a government institution” within the meaning of the Access to Information Act, the Privacy Act, and the Library and Archives of Canada Act, and that the supervising judge had no jurisdiction to order their destruction. The Supreme Court wrote that the application of the Privacy Act to the IAP documents clearly runs counter to the principles of confidentiality and voluntariness upon which the IAP was founded. Further, retention in the National Archives, whose purposes include the accessibility and diffusion of knowledge, is inconsistent with the absolute level of confidentiality that the parties intended for these documents: Canada (Attorney General) v. Fontaine, 2017 SCC 47

Chapter 9, Annotated PIPEDA — Section 7: Collection Without Knowledge or Consent – In this appeal, the Supreme Court was called upon to consider the balance between the privacy rights of individuals and the public interest in law enforcement as it applies to text message conversations stored on personal devices. The majority of the Court held that “Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. […] Only if a claimant’s subjective expectation of privacy was objectively reasonable will the claimant have standing to argue that the search was unreasonable.”: R. v. Marakah, 2017 SCC 59.

About the Author

Professor Michel W. Drapeau, O.M.M., C.D., LL.L., LL.B., retired from the Canadian Forces (Army) in 1993 after accumulating 34 years of service in the Regular and Reserve components. He then went on to obtain a common law degree, as well as a civil law degree, from the University of Ottawa and to co-author several legal texts, including Protection of Privacy in the Canadian Private and Health Sectors, Canadian Military Law Annotated, and Military Justice in Action: Annotated National Defence Legislation. He is an adjunct Professor at the Faculty of Law, University of Ottawa. He also serves as Vice-President, Board of Governors, Saint-Paul University. He has been elected to the governing Council of the Ontario Bar Association.

Me Marc-Aurèle Racicot, B.Sc., LL.B. (Université de Montréal), LL.M. (University of Alberta), is a member of the Quebec Bar. He articled at the Federal Court of Appeal and occupied different positions at the Office of the Information Commissioner of Canada. Me Racicot has also contributed to some major training programs in the field of access and privacy in Canada. Me Racicot is involved on a daily basis with a variety of cases dealing with administrative law, including the interpretation and application of access and privacy legislation. In 2014, after seven years in private practice, Me Racicot joined the Chambre de las sécurité financière as senior counsel. He is co-author of Federal Access to Information Act and Privacy Legislation Annotated, Protection of Privacy in the Canadian Private and Health Sectors, and Fundamentals of Privacy and Freedom of Information in Canada.