Help

Supreme Court Judgments

Decision Information

Decision Content

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53

 

The Commissioner of Official Languages         Appellant/Respondent on cross-appeal

 

v.

 

Robert Lavigne                                                   Respondent/Appellant on cross-appeal

 

and

 

The Privacy Commissioner of Canada                                                           Intervener

 

Indexed as:  Lavigne v. Canada (Office of the Commissioner of Official Languages)

 

Neutral citation:  2002 SCC 53.

 

File No.:  28188.

 

2002:  January 17; 2002: June 20.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

 

on appeal from the federal court of appeal

 


Privacy – Access to personal information –  Exceptions – Right of access under Privacy Act to information collected in private in investigation conducted under Official Languages Act – Commissioner of Official Languages disclosing to complainant only part of personal information concerning him obtained during investigation – Whether exception to right of access provided for in s. 22(1)(b) of Privacy Act applies to Commissioner’s investigations that have concluded – If so, whether Commissioner has established that disclosure of personal information requested could reasonably be expected to be injurious to conduct of investigations – Whether request for disclosure made under Privacy Act can cover information other than personal information – Privacy Act, R.S.C. 1985, c. P-21 , ss. 12(1) , 22 , 47 Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), ss. 60 , 72 , 73 .

 

Official languages – Complaints and investigations – Private nature of investigations conducted by Commissioner of Official Languages – Information obtained in investigations collected in private – Complainant making request under Privacy Act for disclosure of personal information collected in files on complaints he had made to Commissioner of Official Languages – Reconciliation of Privacy Act with Commissioner’s right to keep investigations confidential and private – Privacy Act, R.S.C. 1985, c. P-21 , ss. 12(1) , 22 , 47 Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), ss. 60 , 72 , 73 .

 


The respondent, a federal public servant, filed complaints with the Commissioner of Official Languages (“COL”) alleging that his rights in respect of language of work, and employment and promotion opportunities, had been violated.  In conducting their investigation the investigators working for the Office of the Commissioner of Official Languages (“OCOL”) encountered problems because certain employees were reluctant to give information, fearing reprisals by the respondent.  The investigators gave assurances that the interviews would remain confidential within the limits prescribed by the Official Languages Act  (“OLA ”).  The investigation report concluded that the complaints were well founded and submitted recommendations to the Department concerned, which agreed to implement them.

 


While those proceedings were going on, the respondent made a request to the COL, under s. 12  of the Privacy Act  (“PA ”), for disclosure of the personal information contained in the files on the complaints he had made.  A copy of this information was sent to the respondent, except for the portions which were withheld under the exemption set out in s. 22(1) (b) PA .  That provision gives the COL the power to refuse access to information requested “the disclosure of which could reasonably be expected to be injurious to . . . the conduct of lawful investigations”.  Several other requests by the respondent were refused.  He filed a complaint with the Privacy Commissioner (“PC”) and following a process of mediation, a number of witnesses who had been questioned agreed to a copy of the personal information contained in the notes of the OCOL investigators being given to the respondent.  The PC ruled that the personal information contained in the testimony of the other people questioned, for which consent to disclosure had not been obtained, had been properly exempted from disclosure under s. 22(1) (b) PA .  The respondent then brought an application for judicial review of the COL’s decision refusing to disclose the information requested.  The dispute relates to the personal information concerning the respondent as well as non-personal information contained in the interview notes of the OCOL investigators.  In the case of the personal information, the respondent’s request relates only to the notes of the interview with his supervisor.  The Federal Court, Trial Division ordered disclosure of the personal information requested by the respondent.  The respondent was denied disclosure of the non-personal information.  The Federal Court of Appeal affirmed that decision.  The issue on the main appeal is whether, pursuant to s. 22(1) (b) PA , disclosure of the personal information requested by the respondent could reasonably be expected to be injurious to the conduct of lawful investigations by the COL.  The issue on the cross-appeal is whether the respondent is entitled to information other than personal information.

 

Held:  The main appeal and the cross-appeal should be dismissed.

 


This case concerns the application of the OLA  and the PA  in relation to each other.  The provisions at issue must therefore be reconciled and read together.  Parliament has made it plain that the PA  applies to the OCOL.  However, the PA , including the power provided in s. 22(1) (b), must be applied to the OCOL in a manner consistent with the objective of the OLA  of promoting equality of status of the two official languages of Canada and guaranteeing minority language groups the right to use the language of their choice within federal institutions  and with the unique context in which the COL’s investigations, the private and confidential nature of which is important, are conducted.  The participation of witnesses and complainants is central to the effectiveness of the Act.  If Parliament had not enacted the provisions requiring that investigations be conducted in private and be kept confidential to protect them, it might have been difficult to achieve the objectives of the OLA .  This confidentiality is not absolute, however, given the limits imposed by ss. 72 , 73  and 74  OLA  and the PA .  When a request for disclosure of information is made under the PA , the COL may refuse access to the information requested under s. 22(1) (b) PA .  That provision allows the exception to disclosure to be used once an investigation is over.  Neither the definition of the word “investigation” in s. 22(3)  nor the wording of s. 22(1) (b) should be interpreted as restricting the scope of the word “investigation” to investigations that are underway, those that are about to commence or specific investigations.  There is therefore no justification for limiting the scope of that provision.  The non-disclosure of personal information provided in s. 22(1) (b), however, is authorized only where disclosure “could reasonably be expected” to be injurious to investigations.  There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged.  The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure.  Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law.  A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process.  The COL has an obligation to be sensitive to the differences in situations, and he must exercise his discretion accordingly.

 


In this case, it cannot reasonably be concluded from the COL’s statements that disclosure of the interview notes that are the subject of the judicial review application could reasonably be expected to be injurious to the conduct of his future investigations.  The COL has not established, as required by s. 47  PA , that his discretion was properly exercised.  His decision must be based on real grounds that are connected to the specific case in issue.  The evidence filed by the COL shows instead that his decision not to disclose the personal information requested was based on the fact that the person interviewed had not consented to disclosure, and does not establish what risk of injury to his investigations the latter might cause.  Rather than showing the harmful consequences of disclosing the interview notes on future investigations, an attempt was made to prove, generally, that if investigations were not confidential this could compromise their conduct, without establishing specific circumstances from which it could reasonably be concluded that disclosure could be expected to be injurious.  Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given.  It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by the PA  and the OLA .  The COL must exercise his discretion based on the facts of each specific case.  In this case, the COL has not shown that it is reasonable to maintain confidentiality.

 

With respect to the cross-appeal, the respondent cannot obtain disclosure of information other than personal information since his request is based on s. 12(1)  PA , which provides that only personal information may be disclosed.

 

Cases Cited

 

Referred to:  Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140; Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Beaulac, [1999] 1 S.C.R. 768; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586; Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; R. v. Osolin, [1993] 4 S.C.R. 595; Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Reyes v. Secretary of State (1984), 9 Admin. L.R. 296; British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447; St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616.

 


Statutes and Regulations Cited

 

Canadian Human Rights Act, S.C. 1976-77, c. 33, Part IV [rep. 1980-81-82-83, c. 111 (Sch. IV, s. 3); repl. idem, Sch. II].

 

Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), preamble, ss. 2 , Part IX, 55, 56, 58(1), (2), 59, 60, 62, 63(3), 65(1), (2), (3), 72, 73, 74, Part X, 77(3), 78, 82.

 

Privacy Act, R.S.C. 1985, c. P-21 , ss. 2 , 3  “personal information”, (g), 4, 7, 8(1), (2) [am. c. 1 (3rd Supp.), s. 12  (Sch., item 4)], 10 [idem], 12, 12(1), 16(1)(b), 18 à 28, 22(1)(b), (3), 29(1)(a), (b), (c), (3), 34(1), (2), 35, 36, 37, 41, 47, 49, Schedule [am. c. 31 (4th Supp.), s. 101].

 

Authors Cited

 

Braën, André.  “Language Rights”.  In Michel Bastarache, ed., Language Rights in Canada.  Montréal:  Yvon Blais, 1987, 1.

 

Canada.  Legislative Committee on Bill C-72.  Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-72, Issue No. 20, June 7, 1988, pp. 20:25, 20:29.

 

Chevrette, François, et Herbert Marx.  Droit constitutionnel: notes et jurisprudence.  Montréal:  Presses de l’Université de Montréal, 1982.

 

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

 

Marshall, Mary A., and Linda C. Reif.  “The Ombudsman: Maladministration and Alternative Dispute Resolution” (1995), 34 Alta. L. Rev. 215.

 

McIsaac, Barbara, Rick Shields and Kris Klein.  The Law of Privacy in Canada.  Toronto: Carswell, 2000 (updated 2001, release 4).

 

Sheppard, Claude-Armand.  The Law of Languages in Canada.  Study No. 10 of the Royal Commission on Bilingualism and Biculturalism.  Ottawa:  Information Canada, 1971.

 

Wade, Sir William.  Administrative Law, 8th ed. by Sir William Wade and Christopher Forsyth.  New York:  Oxford University Press, 2000.

 

APPEAL and CROSS-APPEAL from a judgment of the Federal Court of Appeal (2000), 261 N.R. 19, [2000] F.C.J. No. 1412 (QL), affirming a decision of the Trial Division (1998), 157 F.T.R. 15, [1998] F.C.J. No. 1527 (QL).  Appeal and cross-appeal dismissed.


Barbara A. McIsaac, Q.C., Johane Tremblay and Gregory S. Tzemenakis, for the appellant/respondent on the cross-appeal.

 

Robert Lavigne, on his own behalf.

 

Dougald E. Brown and Steven Welchner, for the intervener.

 

English version of the judgment of the Court delivered by

 

Gonthier J.

 

I.        Introduction

 

1                                   This case involves the application of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), and the Privacy Act, R.S.C. 1985, c. P-21 ,  in relation to each other, and at issue is the right of access to personal information collected in private in an investigation conducted under the Official Languages Act .  More precisely, we must decide whether disclosure of the personal information requested by the respondent could reasonably be expected to be injurious to the conduct of lawful investigations by the Commissioner of Official Languages.

 

II.    Facts

 


2                                   The respondent, Robert Lavigne, worked in the Montreal office of the Department of National Health and Welfare (now the Department of Human Resources Development Canada (“the Department”)).  Between November 1992 and March 1993 he filed four complaints with the Commissioner of Official Languages (“the Commissioner”) alleging that his rights in respect of language of work, and employment and promotion opportunities, had been violated.  The respondent complained that he had been forced to use French.

 

3                                   In the course of their investigation, the investigators working for the Office of the Commissioner of Official Languages questioned some 25 employees of the Department, including the respondent, his immediate supervisor and some of his co‑workers, as well as managers and other employees.  The investigators encountered problems in conducting their investigation because a number of Department employees were reluctant to give information, fearing reprisals by the respondent.  In those instances, the investigators explained the role and mandate of the Commissioner as an ombudsman, and the private nature of the investigations.  They gave assurances that the interviews would remain confidential within the limits of ss. 72 , 73  and 74  of the Official Languages Act .

 

4                                   After the interviews were conducted, the investigation report concluded that the respondent’s four complaints were well founded and made five recommendations to the Department.  The Department did not question the Commissioner’s findings, and agreed to implement the recommendations.

 


5                                   After the Commissioner’s report was submitted, the respondent applied to the Federal Court, Trial Division for a remedy from the Department under Part X of the Official Languages Act .  The Federal Court, being of the opinion that an application under that Part is a proceeding de novo, based its decision on the evidence submitted in affidavit form, and not on the evidence contained in the Commissioner’s investigation files.  The affidavits included those of France Doyon, Jacqueline Dubé and Normand Chartrand.  The respondent had an opportunity to cross-examine the Department’s witnesses, including those three individuals, but did not do so.  On October 30, 1996, the Federal Court (whose decision was affirmed on appeal (1998), 228 N.R. 124) ordered the Department to pay the respondent $3,000 in damages and to write him a letter of apology:  [1997] 1 F.C. 305.

 

6                                   On July 7, 1993, while those proceedings were going on, the respondent made an initial request to the Commissioner for disclosure of the personal information contained in the files on the complaints he had made to him.  On September 10, 1993, a copy of this information was sent to the respondent, except for the portions which were withheld under the exemption set out in s. 22(1) (b) of the Privacy Act , inter alia.  Several additional requests for information were subsequently submitted to the Commissioner, but they were denied.

 

7                                   In September 1994, the respondent filed a complaint with the Privacy Commissioner, who launched an investigation in the course of which he attempted to settle the respondent’s complaints by mediation.  Through this process, a number of witnesses who had been questioned by the Commissioner’s representatives agreed to a copy of the personal information contained in the investigators’ notes being given to the respondent.  However, the testimony of 10 other individuals was not covered by the settlement agreement, either because they could not be located or because they had denied or not responded to the request.  On April 25, 1997, the Privacy Commissioner ruled that the personal information contained in the testimony of those 10 people, for which consent to disclosure had not been obtained, had been properly exempted from disclosure under s. 22(1) (b) of the Privacy Act .

 


8                                   Following the proceedings before the Privacy Commissioner, the Commissioner again refused to disclose certain personal information to the respondent.  The respondent then brought an application for judicial review of the Commissioner’s decision.  The documents originally in issue in his application to the Federal Court are the complete notes taken by the investigators in the Office of the Commissioner of Official Languages during the interviews held with the following people: the district manager of the Montreal office, Normand Chartrand; the respondent’s immediate supervisor, Jacqueline Dubé; and the regional coordinator of official languages, France Doyon.  Normand Chartrand and France Doyon subsequently agreed to disclosure by the Commissioner of the personal information concerning the respondent in the notes of their interviews.  The dispute therefore relates to the personal information contained in the notes of the interview with Ms. Dubé and the notes relating to these three individuals that do not contain any personal information about the respondent.

 

9                                   The Federal Court, Trial Division and the Federal Court of Appeal set aside the Commissioner’s decision in part and ordered disclosure of the personal information requested.  The respondent was denied disclosure of the non-personal information.  It is those decisions that are the subject of these appeals.

 

10                               In the main appeal, the appellant is seeking to have the decision of the Federal Court of Appeal ordering him to disclose the personal information he holds set aside.  In the cross-appeal, the respondent is seeking to have all of the relevant information (whether or not it is personal information) disclosed by the Commissioner.

 

III.    Relevant Statutory Provisions

 

11                               Privacy Act, R.S.C. 1985, c. P‑21 

 


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.

 

3.  . . .

 

“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

 

                                                                   . . .

 

(g)  the views or opinions of another individual about the individual,

 

                                                                   . . .

 

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.

 

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

 

                                                                   . . .

 


41.  Any individual who has been refused access to personal information requested under subsection 12(1)  may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

 

47.  In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1)  or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned.

 

49.  Where the head of a government institution refuses to disclose personal information requested under subsection 12(1)  on the basis of section 20 or 21  or paragraph 22(1) (b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.

 

Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .)

 

60. (1)  Every investigation by the Commissioner under this Act shall be conducted in private.

 

(2)  It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any federal institution, the Commissioner shall, before completing the investigation, take every reasonable measure to give to that individual or institution a full and ample opportunity to answer any adverse allegation or criticism, and to be assisted or represented by counsel for that purpose.

 

72.  Subject to this Act, the Commissioner and every person acting on  behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.

 

73.  The Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information

 

(a)  that, in the opinion of the Commissioner, is necessary to carry out an investigation under this Act; or

 

(b)  in the course of proceedings before the Federal Court under Part X or an appeal therefrom.

 


74.  The Commissioner or any person acting on behalf or under the direction of the Commissioner is not a compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of performing any duties or functions under this Act during an investigation, in any proceedings other than proceedings before the Federal Court under Part X or an appeal therefrom.

 

 

IV.  Decisions of the Lower Courts

 

A.        Federal Court, Trial Division (1998), 157 F.T.R. 15

 

12                               Dubé J. allowed the application for judicial review of the Commissioner's decision.  Section 2  of the Privacy Act  provides, inter alia, that the purpose of the Act is to extend the present laws of Canada that provide individuals with a right of access to personal information about themselves.  Consequently, in the opinion of Dubé J., disclosure is the rule and withholding is the exception.  Section 22(1) (b) of the Privacy Act  is an exception to the general rule and accordingly must be narrowly construed.  It provides a limited exemption relating solely to investigations that are underway or about to begin, and not future investigations.  Being of the view that the investigation was over, Dubé J. concluded that s. 22(1) (b) did not apply.

 

13                               In addition, Dubé J. concluded that the Commissioner had not established that the disclosure of the personal information could reasonably be expected to be injurious to the conduct of its investigations (Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140).  Promises of confidentiality are not essential because the Commissioner has the power to issue subpoenas.

 


14                               Under s. 49  of the Privacy Act , Dubé J. ordered the appellant to disclose the “personal information” requested by the respondent.  However, the Privacy Act  does not entitle the respondent to require the disclosure of information other than “personal information”.

 

B.    Federal Court of Appeal (2000), 261 N.R. 19

 

15                               Sharlow J.A., on behalf of the court, affirmed the decision of Dubé J. and dismissed the appeal.  The Federal Court of Appeal was also of the opinion that s. 22(1) (b) of the Privacy Act  does not apply to protect the information that the Commissioner collected in the course of an investigation, once the investigation has concluded (Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430; Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589; Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra).

 

16                               Sharlow J.A. also rejected the appellant's argument that Dubé J. had failed to consider whether disclosure could reasonably be expected to be injurious to the enforcement of any law of Canada, within the meaning of s. 22(1) (b) of the Privacy Act .  In the opinion of Sharlow J.A., the evidence in the record was not capable of supporting such a conclusion.  It established, at most, the possibility that witnesses may be reluctant to cooperate in an investigation unless they have an absolute assurance of secrecy.  Sharlow J.A. upheld Dubé J.’s decision ordering the appellant to disclose the “personal information” requested by the respondent.

 

17                               The Federal Court of Appeal also dismissed the cross-appeal on the ground that a request under the Privacy Act  may be made only to obtain personal information.

 


V.  Issues

 

A.  Main Appeal

 

18     1.                Did the Federal Court of Appeal err in concluding that the Commissioner may not rely on s. 22(1) (b) of the Privacy Act  to refuse to disclose personal information that was collected in the course of an investigation conducted under the Official Languages Act , when the Commissioner’s investigation has concluded?

 

2.      Did the Federal Court of Appeal err in concluding that there were no reasonable grounds for the Commissioner’s refusal?

 

B.     Cross-Appeal

 

19                               Did the Federal Court of Appeal err in concluding that the respondent was not entitled to information other than personal information?

 

VI.  Analysis

 

A.  Applicable Legislation

 

20                                 The issue in this case is the application of the Official Languages Act  and the Privacy Act  in relation to each other.  What we must first do is to ascertain the purpose and scope of the two Acts, and analyse the respective roles of the two Commissioners.  It will then be possible, having regard to those general principles, to consider the statutory provisions on which the parties rely.

 


21                                 The Official Languages Act  is a significant legislative response to the obligation imposed by the Constitution of Canada in respect of bilingualism in Canada.  The preamble to the Act refers expressly to the duties set out in the Constitution.  It cites the equality of status of English and French as to their use in the institutions of the Parliament and government of Canada and the guarantee of full and equal access in both languages to Parliament and to the laws of Canada and the courts.  In addition, the preamble states that the Constitution provides for guarantees relating to the right of any member of the public to communicate with and receive services from any institution of the Parliament or government of Canada in English and French.  The fact that the Official Languages Act  is a legislative measure taken in order to fulfil the constitutional duty in respect of bilingualism is not in doubt.

 

22                                 Section 2  of the Official Languages Act  sets out the purpose of the Act:

 

2.  The purpose of this Act is to

 

(a)  ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;

 

(b)  support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and

 

(c)  set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

 


Those objectives are extremely important, in that the promotion of both official languages is essential to Canada’s development.  As this Court said in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 744:

 

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.  It is through language that we are able to form concepts; to structure and order the world around us.  Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

 

The Official Languages Act  is more than just a statement of principles.  It imposes practical requirements on federal institutions, as Bastarache J. wrote in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 24:

 

The idea that s.  16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected.  This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time.  Section 2  of the Official Languages Act  has the same effect with regard to rights recognized under that Act.  This principle of substantive equality has meaning.  It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365.  It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.  [Emphasis added.]

 


23                                 The importance of these objectives and of the constitutional values embodied in the Official Languages Act  gives the latter a special status in the Canadian legal framework.  Its quasi-constitutional status has been recognized by the Canadian courts.  For instance, in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at p. 386 (see also Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.), at pp. 602‑3), the Federal Court of Appeal said:

 

The 1988 Official Languages Act  is not an ordinary statute.  It reflects both the Constitution of the country and the social and political compromise out of which it arose.  To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1)  and (3)  of the Canadian Charter of Rights and Freedoms , it follows the rules of interpretation of that Charter  as they have been defined by the Supreme Court of Canada.  To the extent also that it is an extension of the rights and guarantees recognized in the Charter , and by virtue of its preamble, its purpose as defined in section 2  and its taking precedence over other statutes in accordance with subsection 82(1) , it belongs to that privileged category of quasi‑constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it.”  [Emphasis added.]

 

The Federal Court was correct to recognize the special status of the Official Languages Act .  The constitutional roots of that Act, and its crucial role in relation to bilingualism, justify that interpretation.

 


24                                 The Privacy Act  is also fundamental in the Canadian legal system.  It has two major objectives.  Its aims are, first, to protect personal information held by government institutions, and second, to provide individuals with a right of access to personal information about themselves (s. 2 ).  Obviously, it is the second objective that is in issue in these appeals.  Until 1983, the core elements of the legal guarantees of the confidentiality of personal information were set out in Part IV of the Canadian Human Rights Act, S.C. 1976-77, c. 33.  Part IV of the Canadian Human Rights Act  was repealed (S.C. 1980-81-82-83, c. 111 (Sch. IV, s. 3 )) and replaced by the Privacy Act  (S.C. 1980-81-82-83, c. 111, Sch. II).  In view of the quasi-constitutional mission of that Act, the courts have recognized its special nature.  In Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609, at p. 652, Noël J. of the Federal Court, Trial Division wrote:

 

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.  [Emphasis added.]

 

25                                 The Privacy Act  is a reminder of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society.  In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 65-66, La Forest J. wrote (although he dissented, he spoke for the entire Court on this point):

 

The protection of privacy is a fundamental value in modern, democratic states; see Alan F. Westin, Privacy and Freedom (1970), at pp. 349‑50.  An expression of an individual’s unique personality or personhood, privacy is grounded on physical and moral autonomy — the freedom to engage in one’s own thoughts, actions and decisions; see R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, per La Forest J.; see also Joel Feinberg, “Autonomy, Sovereignty, and Privacy:  Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.

 

Privacy is also recognized in Canada as worthy of constitutional protection, at least in so far as it is encompassed by the right to be free from unreasonable searches and seizures under s. 8  of the Canadian Charter of Rights and Freedoms ; see Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  Certain privacy interests may also inhere in the s. 7  right to life, liberty and security of the person; see R. v. Hebert, [1990] 2 S.C.R. 151, and R. v. Broyles, [1991] 3 S.C.R. 595.

 

La Forest J. also did not hesitate in that case to recognize “the privileged, foundational position of privacy interests in our social and legal culture” (para. 69).  La Forest J. added, at para. 61, that the overarching purpose of access to information legislation is to facilitate democracy:

 


It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry. 

 

And lastly, L’Heureux-Dubé J., dissenting, but not on this point, wrote on the question of the importance of protecting privacy in R. v. Osolin, [1993] 4 S.C.R. 595, at p. 614:

 

The importance of privacy as a fundamental value in our society is underscored by the protection afforded to everyone under s. 8  of the Charter  “to be secure against unreasonable search or seizure”.  This value finds expression in such legislation as the Privacy Act, R.S.C., 1985, c. P‑21 , which restricts the purposes for which information may be used to those for which it was received.  [Emphasis in original.]

 

The Official Languages Act  and the Privacy Act  are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this Court has recognized them as having.  However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87:

 

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

The quasi-constitutional status of the Official Languages Act  and the Privacy Act  is one indicator to be considered in interpreting them, but it is not conclusive in itself.  The only effect of this Court’s use of the expression “quasi-constitutional” to describe these two Acts is to recognize their special purpose.

 


26                                 The Privacy Act  deals with “personal information”, which is defined in s. 3 of the Act.  As Jerome A.C.J. said in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.), at p. 557, s. 3  is “deliberately broad” and “is entirely consistent with the great pains that have been taken to safeguard individual identity”.  (See also Dagg, supra, at para. 69.)  Section 3  provides, inter alia:

 

3. . . .

 

“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

 

                                                                   . . .

 

(g)  the views or opinions of another individual about the individual,

 

27                                 To achieve the objectives of the Privacy Act , Parliament has created a detailed scheme for collecting, using and disclosing personal information.  First, the Act specifies the circumstances in which personal information may be collected by a government institution, and what use the institution may make of it: only personal information that relates directly to an operating program or activity of the government institution that collects it may be collected (s. 4), and it may be used for the purpose for which it was obtained or compiled by the institution or for a use consistent with that purpose, and for a purpose for which the information may be disclosed to the institution under s. 8(2) (s. 7 ).  As a rule, personal information may never be disclosed to third parties except with the consent of the individual to whom it relates (s. 8(1)) and subject to the exceptions set out in the Act (s. 8(2)).

 


28                                 The Act also governs the retention of personal information, which must be stored in personal information banks (s. 10).  The Act provides that every individual who is a Canadian citizen or permanent resident has a right to be given access to personal information about the individual held by a government institution (s. 12 ).  It is that section that Mr. Lavigne relies on in requesting access to personal information about him.

 

29                                 The Act also sets out the circumstances in which a government institution may or must refuse to disclose personal information to the individual to whom the information relates (ss. 18 to 28).  B. McIsaac, R. Shields and K. Klein describe those exceptions as follows in The Law of Privacy in Canada (loose-leaf), at p. 3‑15:

 

Sections 18 through 28 of the Privacy Act  provide for the establishment of exempt banks of personal information and establish various provisions for the exemption of personal information which has been requested.  These exempting provisions fall into two major types.  First there are exemptions which are based on the classification or type of personal information involved.  In these cases, the personal information is subject to exemption from disclosure simply because it falls into the class described in the exempting provision.  The other exemptions require that the head of the institution be satisfied that the use of the personal information in question would result in an injury or other consequence which is specified in the exempting section.  The reasonable expectation of injury test requires that there be a reasonable expectation of “probable” harm. . . .  In most cases, even if the personal information falls within a class which is exempt from disclosure simply because of the nature of the personal information in question, the head of the institution still has a discretion to release the personal information.  There are only three situations in which the head of the institution is statutorily obliged to refuse to release personal information [ss. 19, 22(2) and 26].

 

30                                 Given that one of the objectives of the Privacy Act  is to provide individuals with access to personal information about themselves, the courts have generally interpreted the exceptions to the right of access narrowly.  For instance, in Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, Richard J. of the Federal Court, Trial Division said, at paras. 34-35:

 

The general preamble as contained in s. 2  of the Privacy Act , has the same general effect as s. 2(1)  of the Access to Information Act . The Privacy Act  must also be guided by the purposive clause. . . .

 


The Privacy Act ’s purpose is to provide access to personal information maintained by government.  The rules of interpretation described above also apply in this instance.  The necessary exceptions to the access must be strictly construed.

 

31                                 Similarly, in Reyes v. Secretary of State (1984), 9 Admin. L.R. 296, at p. 299, the Federal Court, Trial Division said:

 

It must also be emphasized that since the main purpose of these “access to information” statutes is to codify the right of public access to government information, two things follow: first, such public access ought not be frustrated by the Courts except upon the clearest of grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure, in this case the government.

 

32                                 The Privacy Act  provides for the appointment of a Commissioner responsible for administering and enforcing the Act.  The Privacy Commissioner's duties include:

 

– Receiving (and investigating) complaints from individuals who allege that personal information about themselves held by a government institution has been used or disclosed otherwise than in accordance with s. 7  or 8  (s. 29(1)(a)), and receiving (and investigating) complaints from individuals who have been refused access to personal information requested under s. 12(1)  or who allege that they are not being accorded the rights to which they are entitled under s. 12(2) (s. 29(1)(b) and (c));

 

– Initiating a complaint where the Privacy Commissioner is satisfied there are reasonable grounds to investigate a matter under the Privacy Act  (s. 29(3) );

 


– Carrying out investigations of the files contained in personal information banks designated as exempt banks under s. 18, to determine whether the files should in fact be in those banks (s. 36);

 

– Carrying out investigations in respect of compliance with ss. 4  to 8  (collection, retention and protection of personal information) (s. 37).

 

33                                 The Privacy Commissioner has broad powers for the purposes of conducting investigations into complaints that are filed.  He has access to all information held by a government institution, with the exception of confidences of the Queen’s Privy Council for Canada, and no information to which he has access may be withheld from him (s. 34(2)).  He has the right to summon and enforce the appearance of witnesses before him and to compel them to give oral or written evidence on oath and to produce such documents and things as he deems requisite to the full investigation and consideration of the complaint.  In addition, he may administer oaths and receive such evidence and other information,  whether on oath or by affidavit or otherwise, as the Privacy Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law.  The Commissioner may also enter any premises occupied by any government institution on satisfying any security requirements of the institution relating to the premises, converse in private with any person therein, and carry out such inquiries within the Privacy Commissioner’s authority under the Privacy Act  as he sees fit.  Lastly, the Privacy Commissioner may examine or obtain copies of or extracts from books or other records found in the premises occupied by a government institution containing any matter relevant to the investigation (s. 34(1) ).

 


34                                 After completing his investigation, the Privacy Commissioner reports his findings to the head of the government institution in question, if he finds that a complaint is well-founded.  Where appropriate, the Privacy Commissioner may report his findings to the complainant.  In his report, he may ask the head of the government institution in question to disclose the personal information in issue or to make changes in the management or use of personal information (ss. 35, 36 and 37).

 

35                                 Like the Privacy Commissioner, the Commissioner of Official Languages plays an important role.  It is his job to take the measures that are necessary in respect of the recognition of each of the two official languages, and to secure compliance with the spirit of the Official Languages Act , in particular in the administration of the affairs of federal institutions.  It is therefore the Commissioner who has been given the mandate to ensure that the objectives of that Act are implemented.  To allow him to fulfil a social mission of such broad scope, he has been vested with broad powers by the Parliament of Canada.  For instance, he may conduct investigations into complaints that in any particular case the status of an official language was not recognized, or any provision of an Act of Parliament or regulation relating to the status or use of the two official languages, or the spirit or intent of the Official Languages Act , was not complied with:

 

56. (1)  It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society.

 

(2)  It is the duty of the Commissioner, for the purpose set out in subsection (1), to conduct and carry out investigations either on his own initiative or pursuant to any complaint made to the Commissioner and to report and make recommendations with respect thereto as provided in this Act.

 


58. (1)  Subject to this Act, the Commissioner shall investigate any complaint made to the Commissioner arising from any act or omission to the effect that, in any particular instance or case,

 

(a)  the status of an official language was not or is not being recognized,

 

(b)  any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or

 

(c)  the spirit and intent of this Act was not or is not being complied with

 

in the administration of the affairs of any federal institution.

 

(2)  A complaint may be made to the Commissioner by any person or group of persons, whether or not they speak, or represent a group speaking, the official language the status or use of which is at issue. [Emphasis added.]

 

The Commissioner may also exercise his persuasive influence to ensure that any decision that is made is implemented and that action is taken on the recommendations made in respect of an investigation.  For instance, s. 63(3)  of the Official Languages Act  provides that he may request the deputy head or other administrative head of the federal institution concerned to notify him within a specified time of the action, if any, that the institution proposes to take to give effect to those recommendations.  He may also, in his discretion and after considering any reply made by or on behalf of any federal institution concerned, transmit a copy of the report and recommendations to the Governor in Council, and the Governor in Council may take such action as the Governor in Council considers appropriate in relation to the report (s. 65(1)  and (2) ).  The Commissioner may make a report to Parliament where the Governor in Council has not taken action on it (s. 65(3) ).  He also has the authority to apply to the Court for a remedy, with the consent of the complainant (s. 78 ).

 


36                                 As well, it is the Commissioner who decides what procedure to follow in conducting investigations, subject to the following requirements: the obligation to give notice of intention to investigate (s. 59), the obligation to ensure that investigations are conducted in private (s. 60(1)) and the obligation to give the individual or federal institution in question the opportunity to answer any adverse allegation or criticism (s. 60(2)).  The investigation must also be conducted promptly, since the complainant is entitled to make an application for a court remedy six months after the complaint is made (s. 77(3)).  The Commissioner and every person acting on his behalf may not disclose any information that comes to their knowledge in the performance of their duties and functions under the Official Languages Act  (s. 72 ).

 

37                                 In many significant respects, the mandates of the Commissioner of Official Languages and the Privacy Commissioner are in the nature of an ombudsman’s role (see M. A. Marshall and L. C. Reif, “The Ombudsman: Maladministration and Alternative Dispute Resolution” (1995), 34 Alta. L. Rev. 215):

 

– They are independent of the government’s administrative institutions and hold office during good behaviour for a specified period.  They receive the same salary as a judge of the Federal Court.  This independence is reinforced by the fact that they may not, as a rule, be compelled to testify, and no civil or criminal proceedings lie against them for anything done in the performance of their duties;

 

– They examine complaints made by individuals against the government’s administrative institutions, and conduct impartial investigations;

 

– They attempt to secure appropriate redress when the individual’s complaint is based on non-judicial grounds;


– They attempt to improve the level of compliance by government institutions with the Privacy Act  and the Official Languages Act ;

 

– As a rule, they may not disclose information they receive.

 

38                                 The Privacy Commissioner and the Official Languages Commissioner follow an approach that distinguishes them from a court.  Their unique mission is to resolve tension in an informal manner: one reason that the office of ombudsman was created was to address the limitations of legal proceedings.  As W. Wade wrote (Administrative Law (8th ed. 2000), at pp. 87-88):

 

If something illegal is done, administrative law can supply a remedy, though the procedure of the courts is too formal and expensive to suit many complainants.  But justified grievances may equally well arise from action which is legal, or at any rate not clearly illegal, when a government department has acted inconsiderately or unfairly or where it has misled the complainant or delayed his case excessively or treated him badly.  Sometimes a statutory tribunal will be able to help him both cheaply and informally.  But there is a large residue of grievances which fit into none of the regular legal moulds, but are none the less real.  A humane system of government must provide some way of assuaging them, both for the sake of justice and because accumulating discontent is a serious clog on administrative efficiency in a democratic country. . . .  What every form of government needs is some regular and smooth‑running mechanism for feeding back the reactions of its disgruntled customers, after impartial assessment, and for correcting whatever may have gone wrong. . . .  It was because it filled that need that the device of the ombudsman suddenly attained immense popularity, sweeping round the democratic world and taking root in Britain and in many other countries, as well as inspiring a vast literature.

 


39                                 An ombudsman is not counsel for the complainant.  His or her duty is to examine both sides of the dispute, assess the harm that has been done and recommend ways of remedying it.  The ombudsman’s preferred methods are discussion and settlement by mutual agreement.  As Dickson J. wrote in British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447, the office of ombudsman and the grievance resolution procedure, which are neither legal nor political in a strict sense, are of Swedish origin, circa 1809.  He described their genesis (at pp. 458-59):

 

As originally conceived, the Swedish Ombudsman was to be the Parliament’s overseer of the administration, but over time the character of the institution gradually changed.  Eventually, the Ombudsman’s main function came to be the investigation of complaints of maladministration on behalf of aggrieved citizens and the recommendation of corrective action to the governmental official or department involved.

 

The institution of Ombudsman has grown since its creation.  It has been adopted in many jurisdictions around the world in response to what R. Gregory and P. Hutchesson in The Parliamentary Ombudsman (1975) refer to, at p. 15, as “one of the dilemmas of our times” namely, that “(i)n the modern state . . . democratic action is possible only through the instrumentality of bureaucratic organization; yet bureaucratic — if it is not properly controlled — is itself destructive of democracy and its values”.

 

The factors which have led to the rise of the institution of Ombudsman are well-known.  Within the last generation or two the size and complexity of government has increased immeasurably, in both qualitative and quantitative terms.  Since the emergence of the modern welfare state the intrusion of government into the lives and livelihood of individuals has increased exponentially.  Government now provides services and benefits, intervenes actively in the marketplace, and engages in proprietary functions that fifty years ago would have been unthinkable.

 

B.  The Connection Between the Official Languages Act and the Privacy Act

 


40                                 Parliament has made it plain that the Privacy Act  applies to the Office of the Commissioner of Official Languages: the latter is listed in the schedule to the Act as a government institution that is subject to the Privacy Act .  As well, s. 2  of the  Privacy Act  provides that its purpose is to extend the present laws of Canada, and this includes the Official Languages Act , although s. 82  of the Official Languages Act  provides that the provisions of Parts I to V prevail over any other Act of Parliament or regulation thereunder.  None of the sections relied on by the appellant is found in those parts: ss. 60(1) , 72 , 73  and 74  are in Part IX of the Act.  The meanings of the provisions in issue in these appeals must therefore be reconciled, and they must be read together.

 

41                                 Section 12  of the Privacy Act  creates a right of access to personal information, “[s]ubject to this Act”.  Exceptions to the right of access must therefore be prescribed by that Act.  Where a government institution refuses to give access to the information, it is required to state the specific provision of the Act on which the refusal is based (s. 16(1) (b)) and to establish that it is authorized to refuse to disclose the information (s. 47 ).  In this case, the refusal to disclose is based on s. 22(1) (b).

 

42                                 The Privacy Act  must therefore be applied to the Office of the Commissioner of Official Languages in a manner consistent with the objective of the Official Languages Act  of promoting equality of status of the two official languages of Canada and guaranteeing minority language groups the right to use the language of their choice within federal institutions.  Parliament has expressly provided that investigations by the Commissioner shall be conducted in private and that investigators shall not disclose information that comes to their knowledge in the performance of their duties and functions:

 

60. (1)  Every investigation by the Commissioner under this Act shall be conducted in private.

 

72.  Subject to this Act, the Commissioner and every person acting on  behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act.  [Emphasis added.]

 


These provisions illustrate Parliament’s desire to facilitate access to the Commissioner and to recognize the very delicate nature of the use of an official language at work by a minority group.  The private and confidential nature of investigations is an important aspect of the implementation of the Official Languages Act .  Without protections of this nature, complainants might be reluctant to file complaints with the Commissioner, for example because they are afraid that their opportunities for advancement would be reduced, or their workplace relationships would suffer.  As well, these provisions encourage witnesses to participate in the Commissioner’s investigations.  They are less likely to be afraid that their participation might have a negative impact on the employer-employee relationship or their relations with other employees, and to refuse to cooperate for fear of getting in trouble or damaging their careers.  The affidavit of Mr. Langelier, Assistant Director General of the Investigations Branch, explains the importance of preserving a measure of confidentiality in the Commissioner’s investigations, for the following reasons, among others:

 

[translation] – the investigators gave assurances to the people interviewed that the information gathered would be kept confidential in order to secure the cooperation of those people . . . .

 

– . . . members of the public, and in particular public servants, will hesitate to file complaints ... if they are warned that their identities and any information that they disclose to the OCOL investigators is likely to be disclosed otherwise than where required in order to comply with the principles of natural justice or, as an exception, in an application for a remedy under Part X of the [Official Languages Act ];

 

– members of the public, and in particular public servants, will be more reluctant to cooperate with OCOL investigators, and in order to give effect to the obligation imposed on the COL to investigate complaints, investigators will have to resort to their powers in relation to investigations, including summoning witnesses to attend and compelling them to testify and produce documents;

 

– the OCOL’s investigatory process will become much more formal and rigid, and this will compromise the COL’s ombudsman role;

 

– the fact that the COL is required to disclose information could interfere with his role as mediator and facilitator and thereby jeopardize the power of persuasion and the credibility that an ombudsman must have in order to discharge his functions.

 


43                                 In Beaulac, supra, at para. 20, Bastarache J. explained the importance of providing conditions in which language rights may be exercised:

 

The objective of protecting official language minorities, as set out in s. 2  of the Official Languages Act , is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community.  Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided.  This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees . . . .  [Emphasis added.]

 

Marshall and Reif, supra, at p. 219, explain the importance of confidentiality for an ombudsman:

 

The confidentiality of the ombudsman’s proceedings helps to ensure his independence as well as to facilitate cooperation throughout the investigation.  The ombudsman’s investigation must be held in private and his reports and investigation may not be made the subject of an inquiry or review, apart from a review ordered by the Legislative Assembly, its committees or another body which the Legislative Assembly authorizes. [Emphasis added.]

 

44                                 In addition to enacting specific provisions to ensure that investigations are held in private, Parliament gave the Commissioner the power to report the belief that a complainant or witness has been threatened, intimidated or made the object of discrimination, and the grounds therefor, to the President of the Treasury Board (s. 62(2)(a)).  The Minister of Justice at the time, Ray Hnatyshyn, discussed that provision in addressing the legislative committee (Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-72, Issue No. 20, June 7, 1988, at pp. 20:25 and 20:29) as follows:

 


It is appropriate, after we have talked about the ombudsman character of the office, that in this case the commissioner has the opportunity to examine the kind of harassment, intimidation, discrimination or obstruction that might take place with respect to any individual and have an opportunity to examine these matters and bring them to the attention of the President of the Treasury Board.  I think this is an opportunity to make sure all Canadians and all people who are involved and employed and against whom a complaint could be laid under this bill can do so freely without fear of discrimination.  I think it is important for all Canadians to feel they have the right to use this bill and use the office of the commissioner without fear of retribution or recrimination for taking a complaint forward. 

                                                                   . . .

 

But if you have raised a complaint in the first place, you are on record, and maybe you are being discriminated against.

 

Certainly the commissioner’s function is to protect you; not to make life any more difficult for you but make sure you are not going to suffer negative consequences.  If you prevent him from doing that, or have a veto, then it may be counterproductive in the legislation to the interests of all your fellow employees.  It would certainly allow the same discrimination to take place with other people if they feel they cannot beat the system.  [Emphasis added.]

 


The Privacy Act  must be applied to the Office of the Commissioner of Official Languages in such a way as to recognize the unique context in which the Commissioner’s investigations are conducted.  In ss. 60 , 62  and 72 , Parliament clearly recognized the delicate situation involved in the use of an official language at work by a minority group, by requiring that investigations be conducted in private and be kept confidential, to protect complainants and witnesses from any prejudice that might result from their involvement in the complaints and the investigation process, and by giving the Commissioner the power to report the belief that a complainant or witness has been threatened, intimidated or made the object of discrimination, and the grounds therefor, to the President of the Treasury Board.  If Parliament had not enacted those provisions, it might have been difficult to achieve the objectives of the Official Languages Act .  The participation of witnesses and complainants is central to the effectiveness of the Act.  Because the purpose of the investigation is to determine the truth and understand the individuals’ experience of the situation, the investigators must be circumspect in collecting information and assessing the information obtained.

 

45                                 Both the respondent and the Privacy Commissioner, who is an intervener in this case, argue that it is not necessary that interviews be confidential in order to secure the participation of witnesses, because the Commissioner of Official Languages has broad powers that include the power to summon and enforce the attendance of witnesses (s. 62  of the Official Languages Act ).  That argument cannot succeed, because using the procedure for compelling attendance compromises the ombudsman role of the Commissioner.  It is the responsibility of the Commissioner to investigate complaints that are submitted to him impartially, and to resolve them using flexible mechanisms that are based on discussion and persuasion.  The Commissioner must protect witnesses and assist victims in exercising their rights.  Requiring the Commissioner to have regular recourse to the procedure for enforcing the attendance of individuals before him is inconsistent with the role of an ombudsman.  In addition, enforcing the attendance of witnesses would needlessly complicate the investigations, and would be injurious to them.  A person who is compelled to testify may be recalcitrant and less inclined to cooperate.  The way in which the Official Languages Act  is interpreted must not be injurious to activities undertaken by the Commissioner that are intended to resolve conflicts in an informal manner.

 


46                                 The appellant contends that the access to information mechanism set out in ss. 73  and 74  of the Official Languages Act  is a complete scheme, and that those provisions enabled the respondent to obtain disclosure of the information he needed in order to submit his complaint and secure redress.  In the appellant’s submission, Parliament intended that the information collected by the Commissioner would remain private, unless, and only in the event that, it could be disclosed under the Official Languages Act .  The effect of that interpretation is to exempt the Official Languages Act  from the application of the Privacy Act .  It defeats the complainant’s right to obtain access to personal information about him under the Privacy Act .  It would be contrary to the clear intention of Parliament, which was that the Office of the Commissioner of Official Languages was to be subject to the Privacy Act , to accept that interpretation, and it must be rejected.  The two Acts must be interpreted and applied harmoniously.

 

47                                 At the time in question, the policy of the Office of the Commissioner of Official Languages was to explain to witnesses that ss. 60  and 72  of the Official Languages Act  provided that investigations were conducted in private, and that ss. 73 and 74 of the Act provided for limited circumstances in which testimony could be disclosed.  As Mr. Langelier said in his affidavit:

 

[translation] The credibility of the Commissioner, in my view, requires that the information disclosed to the Commissioner and his representatives in the course of investigations is kept strictly confidential, subject to the following exceptions:

 

A)  situations in which the Commissioner must disclose information which, in his opinion, is necessary for the conduct of his investigations.  These include compliance with the principles of natural justice, where it is essential that the person or institution that is the subject of a recommendation know the identity of the complainant and what the complainant has said;

 

B)  situations in which the Commissioner is involved in an application for a court remedy under Part X of the OLA .  In those cases, the Commissioner may disclose or authorize the disclosure of information.  [Emphasis added.]

 

The Commissioner’s policy was therefore to assure witnesses that the information they disclosed to investigators would be kept confidential, within the limits of ss. 72 , 73  and 74 .  In this case, the promise of confidentiality was also made subject to those sections; as the appellant’s factum states:


The investigators explained the role and mandate of the Commissioner as an Ombudsman and gave their assurances that the interviews would be kept confidential in light of sections 60(1) , 72 , 73  and 74  of the Official Languages Act .  The investigators explained that pursuant to these sections, the investigations are conducted “in private”.  [Emphasis added.]

 

The promise of confidentiality made to the witnesses in the course of the investigation concerning Mr. Lavigne’s complaint was therefore not absolute.

 

48                                 After the respondent filed his complaint, the Commissioner of Official Languages altered the policy concerning the instructions to be given to witnesses.  His new policy required that investigators inform witnesses that the Office of the Commissioner of Official Languages is subject to the Privacy Act .  Investigators still inform witnesses that investigations are conducted in private, as provided in s. 60(1)  of the Official Languages Act , and that the information that comes to the investigators’ knowledge, including the testimony they give, will not be disclosed unless disclosure is necessary for the investigation or in the course of proceedings under Part X, or in cases where disclosure is required for reasons of procedural fairness under s. 60(2)  of the Official Languages Act .  In addition, investigators inform witnesses that the Office of the Commissioner of Official Languages is subject to the Privacy Act  and that the information collected may be exempt from the disclosure requirement where an exception to disclosure applies.

 

C.    The Exception to the Right of Access to Personal Information under Section 22(1) (b)

 

49                                The purpose of s. 55  of the Official Languages Act  is to limit the powers of the Commissioner to those powers provided by the Act or another Act of Parliament:

 


55.  The Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Act or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council.

 

Section 22(1) (b) of the Privacy Act  gives the Commissioner of Official Languages the power to refuse access to information that is requested if disclosure could reasonably be expected to be injurious to the conduct of his investigations.  It is primarily on this provision that the Commissioner bases his refusal to grant access to the information.

 

50                                It is this decision by the Commissioner that is the subject of the application for judicial review.  Any analysis of that decision necessarily rests on a determination of the meaning of the expression “lawful investigations”.  The following question arises in this respect: are future investigations covered by s. 22(1) (b)?

 

51                                In the case before us, the appellant is not arguing that the disclosure of information would be injurious to investigations that are underway, because all of the investigations had been concluded at the time when the respondent requested the personal information in question from him.  However, he submits that disclosure of the personal information could reasonably be expected to be injurious to his future investigations.  The appellant contests the argument made by the respondent and the intervener, which is that s. 22(1) (b) applies only to investigations that are underway and cannot be relied on to protect future investigations or the investigative process in general.  In his submission, this is a needlessly narrow interpretation of that provision, and it is injurious to the implementation of the Act and the attainment of its objectives.

 

52                                First, it must be noted that the word “investigation” is defined in s. 22(3)  of the Privacy Act :


 

22.  . . .

 

(3)  For the purposes of paragraph (1)(b), “investigation” means an investigation that

 

(a)  pertains to the administration or enforcement of an Act of Parliament;

 

(b)  is authorized by or pursuant to an Act of Parliament; or

 

(c)  is within a class of investigations specified in the regulations.

 

That definition does not suggest that the word is limited to a specific investigation, or an investigation that is circumscribed in time.  Indeed, Parliament has not limited the scope of that expression by any qualifier whatever.  None of the paragraphs of s. 22(3)  limits the word “investigation” to investigations that are underway, or excludes future investigations or the investigative process in general from its protection.  It therefore seems, prima facie, that the word retains its broad meaning and may refer equally to investigations that are underway, are about to commence, or will take place.  We shall now consider whether Parliament restricted the scope of that definition for the purpose of the application of the exception to disclosure set out in s. 22(1) (b).

 


53                                Parliament made it plain that s. 22(1) (b) retains its broad and general meaning by providing a non-exhaustive list of examples.  It uses the word “notamment”, in the French version, to make it plain that the examples given are listed only for clarification, and do not operate to restrict the general scope of the introductory phrase.  The English version of the provision is also plain.  Parliament introduces the list of examples with the expression “without restricting the generality of the foregoing”.  This Court has had occasion in the past to examine the interpretation of the expression “without restricting the generality of the foregoing” in similar circumstances: in Dagg, supra, at para. 68, La Forest J. analyzed s. 3  of the Privacy Act , the wording of which resembles the wording of s. 22(1)(b) of that Act:

 

In its opening paragraph, the provision states that “personal information” means “information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing”.  On a plain reading, this definition is undeniably expansive. Notably, it expressly states that the list of specific examples that follows the general definition is not intended to limit the scope of the former.  As this Court has recently held, this phraseology indicates that the general opening words are intended to be the primary source of interpretation.  The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition; see Schwartz v. Canada, [1996] 1 S.C.R. 254, at pp. 289‑91.

 

Although s. 22(1) (b)(i) relates specifically to a particular investigation, it in no way alters the generality of the introductory sentence.  In fact, s. 22(1) (b)(ii), which authorizes refusal to disclose information that would reveal the identity of a confidential source of information, contemplates the protection of future investigations as well as existing investigations.  A reliable confidential source may be useful beyond the confines of one specific investigation.

 

54                                 In short, there is nothing in s. 22(1) (b) that should be interpreted as restricting the scope of the word “investigation” to investigations that are underway or are about to commence, or limiting the general meaning of that word to specific investigations.  There is therefore no justification for limiting the scope of that section.

 


55                                Exceptions to the disclosure of personal information have generally been narrowly construed by the courts.  Nonetheless, as McDonald J.A. of the Federal Court of Appeal said, “[i]f the meaning [of the wording of a provision] is plain, it is not for this Court, or any other court, to alter it” (Rubin, supra, at para. 24; see also St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616, at p. 626).  The argument made by the intervener and the respondent, that it is never possible to invoke the exemption from disclosure once the investigation is over, is an interpretation that is not supported by the wording of the provision.  The disclosure of personal information may be as damaging to future investigations as to investigations that are underway.

 

56                                The appellant relies on another portion of s. 22(1) (b).  He contends that disclosure of the personal information requested by the respondent could reasonably be expected to be injurious to the enforcement of a law of Canada or a province, and more specifically of the Official Languages Act :

 

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 . . . .

 

22. (1)  Le responsable d’une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1)  :

 

                                                                   . . .

 

b)  soit dont la divulgation risquerait vraisemblablement de nuire aux  activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d’enquêtes licites, notamment . . . . [Emphasis added.]

 


The respondent and the intervener submit that the Commissioner of Official Languages does not have the power to enforce the Official Languages Act  and that, consequently, this argument must be rejected.  They contend that the power to enforce that Act is set out in Part X of the Act, entitled “Court Remedy”, and that only the Federal Court has that power.  In their submission, the English expression “enforcement of any law” expressly refers to activities to compel compliance.

 

57                                The question is whether “the enforcement of any law of Canada” refers only to activities the purpose of which is to compel certain individuals or institutions to comply with the provisions of a law of Canada, or whether mediation and making non-coercive recommendations, as provided by the Official Languages Act , also constitute “the enforcement of any law of Canada”.  I do not believe that it is necessary for this Court to construe that expression in order to dispose of this matter.  The appeal essentially addresses the question of how the Privacy Act , which provides for access to personal information by the person concerned, may be reconciled with the right of the Commissioner of Official Languages to keep investigations confidential and private.  The question of confidentiality arises in this case only in relation to investigations. 

 


58                                The non-disclosure of personal information provided in s. 22(1) (b) is authorized only where disclosure “could reasonably be expected” to be injurious to investigations.  As Richard J. said in Canada (Information Commissioner) v. Canada (Immigration and Refugee Board), supra, at para. 43, “[t]he reasonable expectation of probable harm implies a confident belief”.  There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged.  The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure.  Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law.  A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process.  The Commissioner of Official Languages has an obligation to be sensitive to the differences in situations, and he must exercise his discretion accordingly.  The power provided in s. 22(1) (b) must be exercised in a manner that respects the nature and objectives of the Official Languages Act .  The Commissioner must have regard to, inter alia, the private and confidential nature of investigations, as provided by Parliament.  As I have explained, the sections providing for the confidentiality and secrecy of investigations are essential to the implementation of the Official Languages Act Section 22(1) (b) must be applied in a way that is consistent with both Acts.

 

D.         Application of the Law to the Facts of the Case

 

59                                The only interview notes that Mr. Lavigne is attempting to obtain in this application are the notes in respect of Jacqueline Dubé: during the course of the proceedings, Normand Chartrand and France Doyon agreed to allow the Commissioner of Official Languages to give the respondent access to the personal information about him.  The issue that remains to be determined is whether it can reasonably be concluded from the Commissioner’s statements that disclosure of the notes of the interview with Jacqueline Dubé could reasonably be expected to be injurious to the conduct of the Commissioner’s future investigations.

 


60                                As I have said, s. 22(1) (b) is not an absolute exemption clause.  The decision of the Commissioner of Official Languages to refuse disclosure under s. 22(1) (b) must be based on concrete reasons that meet the requirements imposed by that paragraph.  Parliament has provided that there must be a reasonable expectation of injury in order to refuse to disclose information under that provision.  In addition, s. 47  of the Privacy Act  provides that the burden of establishing that the discretion was properly exercised is on the government institution.  If the government institution is unable to show that its refusal was based on reasonable grounds, the Federal Court may then vary that decision and authorize access to the personal information (s. 49).  The appellant relied primarily on Mr. Langelier’s affidavit to establish the reasonable expectation of injury.

 

61                                I do not believe that Mr. Langelier’s statements provide a reasonable basis for concluding that disclosure of the notes of the interview with Ms. Dubé could reasonably be expected to be injurious to future investigations.  Mr. Langelier contends that disclosure would have an injurious effect on future investigations, without proving this to be so in the circumstances of this case.  The Commissioner’s decision must be based on real grounds that are connected to the specific case in issue.  The evidence filed by the appellant shows that the Commissioner’s decision not to disclose the personal information requested was based on the fact that Ms. Dubé had not consented to disclosure, and does not establish what risk of injury to the Commissioner’s investigations the latter might cause.  If Ms. Dubé had given permission, the Commissioner would have disclosed the information.  The appellant’s factum states:

 

Jacqueline Dubé did not give permission to disclose to the Respondent the personal information concerning him that was recorded in the course of the interview she gave the OCOL [Office of the Commissioner of Official Languages] [and so] [t]he OCOL did not disclose any of this personal information.  [Emphasis added.]

 

 


The appellant does not rely on any specific fact to establish the likelihood of injury. The fact that there is no detailed evidence makes the analysis almost theoretical.  Rather than showing the harmful consequences of disclosing the notes of the interview with Ms. Dubé on future investigations, Mr. Langelier tried to prove, generally, that if investigations were not confidential this could compromise their conduct, without establishing specific circumstances from which it could reasonably be concluded that disclosure could be expected to be injurious.  There are cases in which disclosure of the personal information requested could reasonably be expected to be injurious to the conduct of investigations, and consequently the information could be kept private.  There must nevertheless be evidence from which this can reasonably be concluded.  Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given.  It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by the Privacy Act  and the Official Languages Act .  The Commissioner must exercise his discretion based on the facts of each specific case.  In the case of Ms. Dubé, the record as a whole does not provide a reasonable basis for concluding that disclosure of the notes of her interview could reasonably be expected to be injurious to the Commissioner’s investigations.

 

62                                The evidence presented by the intervener is no more persuasive.  The intervener submits that it is not necessary for the Commissioner’s investigations to be confidential by referring to the affidavit of Gerald Neary, the Director of Investigations in the Office of the Privacy Commissioner of Canada, said:

 

OCOL argues that providing promises of confidentiality to witnesses in the context of its investigations is both a necessary and consistent part of its alleged role as an ombudsman.  However, the nature of the role of the Commissioner of Official Languages is similar to the role of the Privacy Commissioner of Canada.  As an Ombudsman, the Privacy Commissioner has found that blanket promises of confidentiality are not necessary in order to preserve the role of ombudsman, or in order to ensure effective investigations.  [Emphasis added.]

 

 


The Director of Investigations in the Office of the Privacy Commissioner is not necessarily the person most suited to determining the best way for investigations to be conducted by the Commissioner of Official Languages.  Mr. Neary’s affidavit does not establish that he has any expertise in the specific field of official languages.  Mr. Langelier, unlike Mr. Neary, has lengthy experience in that field.  For a number of years, he worked as the Director of the Complaints and Audits Branch and as a complaints officer in the Office of the Commissioner of Official Languages.  When his affidavit was filed, he had over 20 years’ experience.

 

63                                Although the role of the Commissioner of Official Languages is similar to that of the Privacy Commissioner, the two Acts that they are responsible for enforcing, and the situations in which those Acts apply, are different in a number of respects.  Language is a means of expression proper to an individual.  It is the vehicle by which a cultural group transmits its distinct culture and traditions, and it is an essential tool for expressing and communicating ideas.  It is not surprising that the history of Canada is marked by a number of conflicts over language, considering the presence of two dominant languages in this country.  As A. Braën explained, language is a cultural benchmark that may be the source of conflicts (“Language Rights”, in M. Bastarache, ed., Language Rights in Canada (1987), 1, at pp. 15‑16:

 

Language is an essential means of cultural expression and its vitality, according to the Commission [Royal Commission on Bilingualism and Biculturalism], is a necessary although insufficient condition for the survival of a culture as a whole.  However, in a bilingual or multilingual society language will be a constant focus of tensions to the extent [that] it expresses the community interests of cultural or language groups. [Emphasis added.]

 

On the history of bilingualism in Canada, see: C.-A. Sheppard, The Law of Languages in Canada (1971), Study No. 10 of the Royal Commission on Bilingualism and Biculturalism, at pp. 1-96, and F. Chevrette and H. Marx, Droit constitutionnel: notes et jurisprudence (1982), at pp. 1583‑88.

 


64                                In the particular context of employment, the use of an official language by a minority group is a very delicate situation.  It may be difficult for an employee to make a complaint for the purpose of having his or her language rights recognized.  The employee is in a situation of twofold weakness: he belongs to a minority group, and his relationship with the employer is one of subordination.  Instead of tackling these difficulties by asserting his rights, an employee may prefer to conform to the language of the majority.  The objective of the Official Languages Act  is precisely to make that kind of behaviour unnecessary, by enhancing the vitality of both official languages.  To facilitate the exercise of language rights, Parliament has expressly provided that investigations will be private and confidential, and has given the Commissioner of Official Languages a mandate to ensure that the Act is enforced.  This is the delicate context in which the Commissioner carries out his functions.

 

65                                Parliament has made the Office of the Commissioner of Official Languages subject to the Privacy Act , and only when a government institution is able to justify the exercise of its discretion to refuse disclosure may it do so.  In the case before us, the appellant has not succeeded in showing that it is reasonable to maintain confidentiality.  For these reasons, I would dismiss the main appeal.

 

66        In the cross‑appeal, the respondent is seeking disclosure of information other than personal information that is held by the Commissioner in connection with the official languages complaint he made.  Mr. Lavigne’s request to the Office of the Commissioner of Official Languages is based on s. 12(1)  of the Privacy Act .  Section 12 of that Act provides that only personal information may be requested.  I agree with Sharlow J.A. of the Federal Court of Appeal that a person who makes a request under the Privacy Act  is not entitled to information other than personal information.  For those reasons, I would dismiss the cross‑appeal.


 

VII.     Conclusion

 

67                                The main appeal and the cross‑appeal are dismissed, without costs.

 

Appeal and cross-appeal dismissed.

 

Solicitors for the appellant/respondent on the cross-appeal:  McCarthy Tétrault, Ottawa; The Office of the Commissioner of Official Languages, Ottawa.

 

Solicitors for the intervener the Privacy Commissioner of Canada:  Nelligan O’Brien Payne, Ottawa.

 

 

Lexum

For 20 years now, the Lexum site has been the main public source for Supreme Court decisions.


>

Decisia

 

Efficient access to your decisions

Decisia is an online service for courts, boards and tribunals aiming to provide easy and professional access to their decisions from their own website.

Learn More