T-2300-86
Mary Bland (Applicant)
v.
National Capital Commission (Respondent)
and
Privacy Commissioner of Canada (Intervener)
and
Information Commissioner of Canada (Intervener)
INDEXED AS: BLAND V. NATIONAL CAPITAL COMMISSION
(T.D.)
Trial Division, Muldoon J.—Ottawa, May 14,
1990 and May 17, 1991.
Access to information — Application to review complaint
against NCC's refusal to allow access to certain records
requested under Access to Information Act — Meaning of
'personal information" under Privacy Act, s. 3 — Information
sought concerning properties rented from respondent, tenants'
names and rents paid — Public interest in disclosure out
weighing invasion of privacy resulting therefrom — Crown
Corporation conferring discretionary benefit of financial
nature by charging lower than market value rents — Informa
tion sought by applicant excluded from statutory definition of
"personal information".
Privacy — NCC, Crown corporation, refusing to disclose
information as to tenants' names, addresses and rents on
ground of privacy — Whether information sought "personal
information" not to be disclosed under Privacy Act, s. 3 —
Public interest in disclosure of information outweighing inva
sion of tenants' privacy within meaning of Act, s. 8(2)(m)(i) —
Non-disclosure generating suspicion, cynicism in democratic
society.
Crown — Real property — Crown properties administered
by National Capital Commission — Newspaper researcher,
working on story political party "hacks" rented premises at
less than fair market value, denied information as to tenants'
names, rents — Access to information versus privacy interests
— Where Crown corporation conferring discretionary benefit
of financial nature, information not protected from disclosure
as "personal information" — Much information of nature
sought publicly available under land registration systems, rent
control legislation — Public interest in not eroding public trust
by cover up of facts where rumours of favouritism, misman
agement of taxpayers' property.
This was an application to review a complaint against the
refusal by the National Capital Commission (NCC) to allow
access to certain records requested by the applicant pursuant to
the Access to Information Act. As a researcher for The Ottawa
Citizen, a daily newspaper, the applicant sought a list of all
properties owned and administered by the NCC as well as the
names and rental charges of the tenants of said properties. She
was given the list but not the other information on the ground
that it was protected under the Privacy Act. She then wrote to
the Information Commissioner, making the point that commer
cial transactions between a tax financed body and an individual
or a corporation could not be regarded as "personal informa
tion". The Information Commissioner would be content if the
properties and rentals, but not tenants' names, were disclosed.
Counsel agreed that there were three main issues to be
decided: I) What is "personal information" under section 3 of
the Privacy Act? 2) Are tenants' names and rents charged
personal information? 3) If yes, does the public interest in
disclosure clearly outweigh any resulting invasion of privacy? A
further issue was whether, if rents charged by the NCC were
less than fair market value, was this "information relating to
any discretionary benefit of a financial nature ... conferred on
an individual, including the name of the individual and the
exact nature of the benefit", in which case the latter would be
excepted from "personal information". As to whether tenants'
names, addresses and rental payments constitute "personal
information", the applicant and the Information Commissioner
argued that if tenants had contracted with the NCC for lower
rents than were exacted for comparable residential properties,
the NCC would have conferred a benefit upon such tenants
and, ipso facto, a discretionary benefit: this is precisely what is
prescribed by paragraph 3(1) of the Privacy Act to be excluded
from the "personal information" within the ambit of subsection
19(1) of the Access to Information Act. As justification for her
decision to refuse disclosure, the NCC chairman made
representations to the Information Commissioner that the
public interest in disclosure is less than apparent as there would
be no general benefit for the public to be provided with that
information. She added that the mere fact that public lands are
being leased certainly does not imply under the legislation that
the public has a right to know.
Held, the application should be allowed.
The NCC being a "government institution" as defined in
section 3 of the Privacy Act, its conduct should be an open book
and any information relating to rental levels and the process of
establishing them should be available to the public. This is why
Parliament promulgated the Access to Information Act, the
purpose of which was to provide a right of access to information
in records under the control of a government institution. The
independent review of the decision to refuse access to the
information sought by the applicant is provided in section 41 of
the Act. Since the NCC was entrusted with the management of
the taxpayers' money and property and in view of the fact that
rumours had circulated for years that certain tenants were the
beneficiaries of "sweetheart deals", the question of public
interest was a most important consideration. It is always in the
public interest to dispel rumours of corruption or mismanage
ment of the taxpayers' money and property.
The key statutory provision here was subparagraph
8(2)(m)(i) of the Privacy Act, which is to the effect that
personal information under the control of a government institu
tion may be disclosed where, in the opinion of the head of the
institution, the public interest in disclosure clearly outweighs
any invasion of privacy that could result from the disclosure. In
the case of Rubin v. Canada (Canada Mortgage and Housing
Corp.), Heald J.A. stated that the general rule is disclosure; the
exception is exemption and the onus of proving the entitlement
to the benefit of the exception rests upon he who claims it. His
Lordship added that the Court had the obligation of ensuring
that the discretion given to the administrative head has been
exercised within proper limits and on proper principles. One
could then ask whether the decision of the NCC chairman to
bar disclosure in regard to invasion of privacy versus public
interest was taken "within proper limits and on proper princi
ples" in deference to the "general intent and purpose of the
Act, as expressed in section 2 supra". Upon review of the
chairman's written representations, which was the only evi
dence of what was considered by the respondent in weighing the
statutory factors before deciding not to disclose the informa
tion, it was obvious that the NCC had evinced no weighing of
the factor of invasion of privacy against that of the public
interest in disclosure. The simple assertions that "the public
interest in disclosure is less than apparent" and that "there
would be no general benefit for or advantage to the public to be
provided with that information" did not constitute any weigh
ing of one statutory factor against the other. The "public
interest in disclosure" is a paramount value which is to be
suppressed only when and if it clearly does not outweigh any
invasion of privacy.
The evidence and arguments indicated that the tenants'
privacy interest in the non-disclosure of their rental obligations
was so negligible that any invasion of it, resulting from disclo
sure, was clearly outweighed by the public interest. Whether or
not a tenant of a government institution, the NCC, pays rent is
not a matter of privacy for it must be presumed that every
tenant pays rent in money or in kind. If a tenant had an
arrangement whereby no legal consideration flowed to the
NCC for the use of rented premises, it would be in the public
interest to disclose that information and not to cover up the
facts, even more so when there were rumours of favouritism
and consequent mismanagement of the taxpayers' money and
property. Much information of the type sought by applicant is
available to the public under land registration systems and
provincial rent control legislation. Accordingly, the NCC and
the Privacy Commissioner had failed to demonstrate that any
real harm would befall tenants as a result of disclosure. In view
of the fact that nondisclosure would generate the corrosion of
public trust, suspicion and public cynicism in a free and
democratic society, the public interest in disclosure clearly
outweighed any invasion of privacy resulting from disclosure.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 2(1), 3, 41.
Income Tax Act, S.C. 1970-71-72, c. 63.
Land Titles Act, R.S.O. 1980, c. 230, s. 110.
Ontario Regulations, 449/88.
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II, ss.
2, 3 (l), 8 ( 1 ),(2)(m)(i), 41.
Registry Act, R.S.O. 1980, c. 445.
Residential Rent Regulation Act, 1986, S.O. 1986, c. 63,
s. 5.
CASES JUDICIALLY CONSIDERED
APPLIED:
Rubin v. Canada (Canada Mortgage and Housing
Corp.), [1989] 1 F.C. 265; (1988), 52 D.L.R. (4th)
671; 19 F.T.R. 160; 86 N.R. 186 (C.A.).
CONSIDERED:
R. v. Pollock (1983), 29 Sask. R. 70 (Q.B.).
REFERRED TO:
Swain et al. v. Dennison et al., [1967] S.C.R. 7; (1966),
59 D.L.R. (2d) 357; 58 W.W.R. 232.
COUNSEL:
Richard G. Dearden and Neil Wilson for
applicant.
Barbara A. Mclsaac, Q.C., for respondent.
Simon Noël for intervener Privacy Commis
sioner.
Michael Phalen, Pat Wilson and Paul Tetro
for intervener Information Commissioner.
SOLICITORS:
Cowling, Strathy and Henderson, Ottawa, for
applicant.
Deputy Attorney General, of Canada for
respondent.
Noël, Berthiaume, Aubry, Hull, Quebec, for
intervener Privacy Commissioner.
Osler, Hoskin and Harcourt, Ottawa, for
intervener Information Commissioner.
EDITOR'S NOTE
The Executive Editor has decided that His
Lordship's 40 page reasons for order herein
should be reported as abridged. The omitted ma
terial concerns the background of the case, the
arguments and the issue as to whether NCC
tenants' names, addresses and rental payments
were "personal information" and accordingly not
to be disclosed upon application under the
Access to Information Act. This case is of par
ticular interest for the discussion of the public
interest in disclosure which outweighed any
resulting invasion of privacy. Summaries of the
deleted portions of the reasons are provided.
The following are the reasons for order ren
dered in English by
MULDOON J.: Despite the great weight of paper
filed in this case, counsel aver that there are few
litigious issues. Counsel for the applicant enumer
ates as follows: 1) What is "personal information"
defined in section 3 of the Privacy Act, S.C.
1980-81-82-83, c. 111, Schedule II? 2) Are the
tenants' names and rental charged for their prem
ises personal information? 3) If the previous ques
tion be answered against the applicant's conten
tions, then is there that degree of public interest in
such disclosures which would clearly outweigh any
resulting invasion of privacy? The respondent's
counsel agrees, in effect, saying that the legal issue
is the meaning of "personal information" and what
is involved in it. There is yet another issue such
that, if it be established that the rent payable to
the NCC by the residential tenants is less than fair
market rent, does that reduction constitute "infor-
mation relating to any discretionary benefit of a
financial nature . . . conferred on an individual,
including the name of the individual and the exact
nature of the benefit"? If so, the identity and the
exact nature of the benefit are excepted from
"personal information" "for the purposes of sec
tions 7, 8 and 26 [of the Privacy Act] and section
19 of the Access to Information Act [S.C. 1980-
81-82-83, c. 111, Schedule I]", as provided in
paragraph 3(1) of the Privacy Act.
The National Capital Commission, a Crown cor
poration, is the landlord of residential, commer
cial, institutional and recreational properties in the
National Capital Region. For some years rumours
had circulated that certain of its tenants — said to
be political "hacks" of the party which had been
in power federally prior to 1984 — were the
beneficiaries of "sweetheart deals" in that they
were tenants of NCC properties at below market
value rentals. One of the persons who had drawn
these rumours to the attention of the media (in
particular, to the author of The Ottawa Citizen
column "The Bureaucrats") was Jean E. Pigott,
since named NCC Chairman. It was ironic that she
now was resisting the very disclosure which she
once sought.
The applicant herein, Mary Bland, was a
researcher with The Ottawa Citizen, a daily news
paper. She had written the NCC for a list of its
rental properties along with the tenants' names
and rental charges. The Commission disclosed
the properties list but declined to divulge the
other information as personal information protect
ed under section 3 of the Privacy Act. Much of
the requested information was subsequently dis
closed and at the date of the hearing of this
motion it was information concerning residential
properties that was still being sought. In cross-
examination upon her affidavit, the applicant
referred to "a conversation with Jean Pigott her
self who mentioned that look, tell Frank [Howard
— an The Ottawa Citizen columnist] I am glad he
is onto this because it is common knowledge
around Ottawa that there are quite a few Liberals
that — and Liberal hacks that have been getting
benefit of these properties ... ".
It was not reasonable to assume that notable
personages such as Pigott would have conveyed
these rumours only to the media. By making such
allegations to friends and acquaintances they
could create public turmoil in regard to the
administration of the taxpayers' lands.
Reference was made to a memo from an NCC
official acknowledging that the Commission was
essentially subsidizing tenants who were occupy
ing properties costing more to operate than was
being recovered in rent.
All of the mitigating factors in fixing rents (other
than observation of the Government's 6 and 5
anti-inflation policy) set out in the Chairman's
representations pursuant to subsection 35(2) of
the Access to Information Act were discretionary
benefits of a financial nature.
The Court could not accept the submissions of
NCC counsel that the rumours were unfounded
and widespread as a result of Mr. Howard's
columns. The evidence was that they had been
circulating for years before their publication in
"The Bureaucrats". Counsel's submission was
amazing as it implied that Mrs. Pigott was wrong
to have spread rumours of serious wrongdoing
prior to becoming NCC Chairman.
All this silliness certainly could, and did, have
an effect upon the public interest. In Canada it is
not permitted to any appointed, or even elected,
officials to assume aristocratic airs in the manage
ment of public money or property by telling the
citizen-taxpayers that the officials' stewardship is
just none of the citizens' business. There is a well
known compulsiveness on the part of government
officials to keep secret matters which are of inter
est to the public in regard to the management of
the taxpayers' money and property. Is that a
gratuitous assumption? It is an inference from the
fact that despite the powers and activities of the
Auditor General of Canada and of the committees
of Parliament, and of the responsibility of the
government-of-the-day to possess the confidence of
the House of Commons, Parliament still thought
fit to enact, and to promote its stated purpose in
promulgating the Access to Information Act:
2. (1) The purpose of this Act is to extend the present laws of
Canada to provide a right of access to information in records
under the control of a government institution in accordance
with the principles that government information should be
available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the
disclosure of government information should be reviewed
independently of government.
That definite purpose is expressed no less resolute
ly in the other official language of this statute.
Both versions are equally definite and assertive.
The NCC is a "government institution" as
defined in section 3 of the Act and designated in
Schedule I thereto. The independent review of the
decision to refuse access to the information sought
by the applicant is provided in section 41, and
exemplified in these very proceedings.
Now this matter of the rumours is emplaced in
this litigation because of their alleged impact on
the public interest, their potential for diluting
public confidence in the administration of the gov
ernment in general, and of the NCC in particular.
The destruction of public confidence never leaves a
vacuum in its place.
History, as the Court is entitled to note, notori
ously demonstrates that destroyed public confi
dence is soon replaced by that most accursed,
corrosive, dangerous and pernicious of all public
attitudes, cynicism. So, what in this situation is in
the public interest? That is abundantly clear. It is
that, whatever and whenever rumours fly, the con
duct of the NCC should be an open book, with all
the explanations it cares or needs to make about
rental levels, the process of establishing them, or
whatever.
It is always in the public interest to dispel
rumours of corruption or just plain mismanage
ment of the taxpayers' money and property. Natu
rally, if there has been negligence, somnolence or
wrongdoing in the conduct of a government insti
tution's operations it is, by virtual definition, in the
public interest to disclose it, and not to cover it up
in wraps of secrecy. In that case government offi
cials arrogate to themselves, by their refusal to
give requested information, the role of judges in
their own cause. In this free and democratic socie
ty nothing, apart from a direction from the respon
sible Minister, prevents the government institution
from giving whatever explanations it judges appro
priate, along with the requested information law
fully disclosed. The Court is not here adjudicating
on the validity of the NCC's explanations about its
rental levels. The true explanations themselves
might in many situations amply dispel the
rumours, as it appears from the confidential record
placed before this Court.
The Court, in any event does not relish, but can
hardly ignore, the NCC Chairman's personal
involvement in the generation of this litigation.
The interpretation of those paired statutes in pari
materia, the Access to Information Act and the
Privacy Act deserves a better, less personal basis of
elaboration by the Court. So, while the Court is
forced not to disregard that personal element, it
will attempt to proceed as far as possible along
regular, basic lines, just as if the Chairman had
evinced no personal connection with the rumours
alleged to bear on the determination of the public
interest versus any alleged invasion of privacy
which results from disclosure of the information.
Is the Court empowered by law to prefer the
Court's view of the public interest over that of the
NCC? The statutory provision under consideration
here is emplaced in the Privacy Act, thus:
s....
(2) Subject to any other Act of Parliament, personal infor
mation under the control of a government institution may be
disclosed
(m) for any purpose where, in the opinion of the head of the
institution,
(i) the public interest in disclosure clearly outweighs any
invasion of privacy that could result from the disclosure, or
... [Emphasis not in original text.]
What outweighs something else is clearly a
matter of opinion — and oftentimes a very subtle
adjustment of opinion — which, in the statute,
resides primarily at least in the head (or Chair
man) of the government institution, (here, the
NCC). In the Access to Information Act and in
the Privacy Act the respective sections numbered
41 both begin with the headline, "Review by the
Federal Court" and they both provide, in the same
words, for a "person" or an "individual" to "apply
to the Court for a review of the matter". This,
then, is the review of the matter which subsection
2(1) of the information legislation exacts "be
reviewed independently of government, (recours
indépendants du pouvoir exécutif)."
The meaning of this latter provision for the
matter to be reviewed independently of govern
ment in the total context of the legislation — that
is, independently of the decision made or discretion
exercised by the head of the government institu
tion, was conveyed forcefully and lucidly by Mr.
Justice Heald J.A., for the unanimous Appeal
Division of this Court in Rubin v. Canada (Canada
Mortgage and Housing Corp.), [1989] 1 F.C. 265.
At page 272 of the Rubin case, Heald J.A. is
recorded as discoursing on paragraph 21(1)(b) of
the Act, in an example which serves present pur
poses, by analogy, thus:
The Assistant Information Commissioner of Canada in his
letter to the respondent dated September 3, 1986, expressed the
very definite opinion, based on his review of the sample records
that: "disclosure of the vast majority of the minutes would be
innocuous to the interests of the Corporation."
Here, the Information Commissioner herself, in
her scrupulously painstaking 29 -page Report on
Results of Investigation (exhibit B to applicant's
affidavit sworn October 21, 1986 — public
application record, vol. I, tab 2) devoted the last
17 pages to the matter of public interest. Here are
two passages from pages 26-27:
To sum up, this is not an instance in which an applicant is
merely fishing for information of tenuous relevance based on
totally unsubstantiated allegations. There is clear prima facie
evidence, eventually confirmed by public statements from the
NCC itself, that some — perhaps most — NCC rents are or
were below market value.
The public interest in this case is based on the public's right to
have its concerns about the NCC leasing arrangements laid to
rest — not in chasing a moving target.
The facts revealed by this investigation, in my opinion, give rise
to a legitimate, overriding public interest in determining wheth
er subsidized rents have been established and subsidized rental
properties allocation [sic] in an open and equitable manner by
the NCC. That public interest arises whether or not the rents
below market value constitute a "discretionary benefit of a
financial nature."
So wrote the Information Commissioner in this
matter, and here is what Mr. Justice Heald J.A.
continued (at page 272) to write in the Rubin case:
This considered opinion from a senior and responsible public
official should not be ignored. Furthermore, the broad exemp
tion claimed in this case by the respondent does violence to the
purposes of the Act as expressed in section 2 of the Act. [above
recited]
The passages of the Rubin decision which are
applicable in the case at bar continue on pages
273-274 as follows:
In my view, section 49 clothes the Court with jurisdiction to
determine whether the head of the institution is authorized to
refuse disclosure. The discretion given to the institutional head
is not unfettered. It must be exercised in accordance with
recognized legal principles. It must also be used in a manner
which is in accord with the conferring statute. (Lord Reid in
Padfield v. Minister of Agriculture, Fisheries and Food,
[1968] A.C. 997 (H.L.) at pages 1030, 1034). The applicable
legal principles are well stated by Wilson J. in the Oakwood
case when she said that an administrative decision-maker
"must be seen not only to have restricted its gaze to factors
within its statutory mandate but must also be seen to have
turned its mind to all the factors relevant to the proper fulfil
ment of its statutory decision-making function." In the Pad-
field case, supra, Lord Reid said, at page 1030:
Parliament must have conferred the discretion with the
intention that it should be used to promote the policy and
objects of the Act; the policy and objects of the Act must be
determined by construing the Act as a whole and construc
tion is always a matter of law for the court ... if the
Minister, by reason of his having misconstrued the Act, or
for any other reason, so uses his discretion as to thwart or
run counter to the policy and objects of the Act, then our law
would be very defective if persons aggrieved were not entitled
to the protection of the court.
Accordingly, it is incumbent upon the institutional head (or
his delegate) to have regard to the policy and object of the
Access to Information Act when exercising the discretion con
ferred by Parliament pursuant to the provisions of subsection
21(1). When it is remembered that subsection 4(1) of the Act
confers upon every Canadian citizen and permanent resident of
Canada a general right to access and that the exemptions to
that general rule must be limited and specific, I think it clear
that Parliament intended the exemptions to be interpreted
strictly.
The issue then is whether, in the circumstances of this case,
the delegate of the respondent did exercise properly the discre
tion conferred upon her, in promotion of the policy and objects
of this Act.
The passage beginning on page 276 of the Rubin
case is of great import here. It runs:
In approving of the course of action of the respondent's
delegate herein, the Motions Judge followed the decision ... in
the CRTC case, supra. Specifically, he relied on the statement
... at page 420, supra, which I repeat hereunder for
convenience:
Once it is determined that a record falls within the class of
records referred to in subsection 21(1) the applicant's right
to disclosure becomes subject to the head of the government
institution's discretion to disclose it.
With every deference, I am unable to agree with that view of
the matter. Such a conclusion fails to have regard to the objects
and purposes of the Act. The general intent and purpose of the
Act, as expressed in section 2 supra, includes a clear intention
by Parliament to provide a means whereby decisions respecting
public access to public documents will be reviewed "independ-
ently of government." (Subsection 2(1), supra.) Then in section
48, it is provided:
48. In any proceedings before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a government institution is authorized to
refuse to disclose a record requested under this Act or a part
thereof shall be on the government institution concerned.
This section places the onus of proving an exemption squarely
upon the government institution which claims that exemption.
The general rule is disclosure, the exception is exemption and
the onus of proving the entitlement to the benefit of the
exception rests upon those who claim it. Section 46 must also
be considered. It reads as follows:
46. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, in the
course of any proceedings before the Court arising from an
application under section 41, 42 or 44, examine any record to
which this Act applies that is under the control of a govern
ment institution, and no such record may be withheld from
the Court on any grounds.
In my view Parliament enacted section 46 so that the Court
would have the information and material necessary to the
fulfilment of its mandate to ensure that the discretion given to
the administrative head has been exercised within proper limits
and on proper principles. Judicial deference to the exercise of
discretion by an administrative tribunal must, necessarily, be
confined to the proper limits of the tribunal's power of decision.
The determination of those proper limits is a task for the Court.
What then did the NCC, by its chairman, con
sider when it concluded that the invasion of its
tenants' privacy clearly outweighed the public in
terest in disclosure of the rental charge exacted for
each tenant's right to peaceful exclusive possession
of his or her rented premises during the term of
the lease? Was the decision to bar disclosure in
regard to invasion of privacy versus public interest
taken " within proper limits and on proper princi-
pies" in deference to the "general intent and pur
pose of the Act, as expressed in section 2 supra"?
L. J. Prevost's affidavit has been mentioned.
Here is its paragraph 11, which runs:
I1 . The Chairman of the NCC wrote to the Information
Commissioner and made representations under subsection
35(2) of the Act on June 9, 1986. A copy of said representa
tions is attached hereto and marked as Exhibit "D" to this my
affidavit. [Public application record, vol. IV, tab 17, page
1028.]
He refers to the chairman's written representa
tions, above noted, in which she recited some 19
mitigating factors involved in fixing rental
charges.
L. J. Prevost was cross-examined on his affida
vit. Here is his testimony on the matter of public
interest and invasion of privacy, about which he
was questioned, since they figure visibly in those
written representations, exhibit D to his affidavit:
Q. Okay. Now with respect to paragraph 8(m) of the Priva
cy Act of what we will call the public interest override of
privacy, what discussions were held with the Chairman
with respect to whether or not that particular section of
the Privacy Act would apply?
A. That subject, as I recall, only came up at a meeting
between our Chairman and Mrs. Hansen of the Informa
tion Commissioner's office. Right along the discussions
we had not raised the public interest. That was raised at
one of the last meetings, I do not recall which one, after
having argued the definition of personal information as
opposed to public interest. That was strictly based on the
financial — discretionary financial benefit to the tenants.
That was the argument.
Q. So that would be sometime in 1986 if you say it is one of
the last meetings with the Commissioner?
A. Late '85 or '86. I believe late '85.
Q. Late '85. Okay, and you — are you aware, sir of the
criteria that the Chairman used in exercising her discre
tion under or deciding as to whether paragraph 8(m) of
the Privacy Act applied or did not apply?
A. I am aware of a decision. I am aware of her discussions
with our senior counsel. I was at one of the meetings, but
not all of them. The response, of course, I was aware of.
Q. Which was no, the public interest does not —
A. Which was no to the public interest
Q. — outweigh the invasion of privacy. But do you know any
of the reasons or facts that form the foundation for her
opinion that the public interest in disclosure did not
clearly outweigh an invasion of privacy of the tenants?
A. No minutes were kept except maybe a few notes here and
there of the several meetings, but at one particular meet
ing, I do recall that if it was in the public interest, then
possibly there should be a tenant singled out which would
be subject to the RCMP investigation and not a general
condemnation of all tenants because of the possibility of
favours being done to tenants.
Q. Why would there be an RCMP investigation?
A. Well if there was suspicion that there was that type of
thing, then that was the view that that is the way it would
be dealt with.
Q. What type of thing?
A. Sweetheart deal, so-called, as special benefits to certain
tenants, that type of thing which was the question raised
by Howard.
Raised by Howard, indeed! The question was, as is
now plainly acknowledged and proved, originally
planted by, (among others), the Chairman, herself!
However, since no minutes were kept, then the
Chairman's written representations (exhibit D) are
the only evidence of what was considered in the
respondent's weighing of the statutory factors in
the NCC's decision not to disclose the information
which the applicant seeks. That is, those represen
tations furnish the only evidence before this Court
about whether the decision was made "within
proper limits and on proper principles" having due
regard to the "general intent and purpose of the
Act, as expressed in section 2 supra".
The representations signed by the NCC Chair
man on June 9, 1986, take up 8 1 / 2 pages, legal size.
On page 3 thereof (page 1038 of vol. IV), the first
reference to subparagraph 8(2)(m)(i) arises with
the note of a meeting between, as it seems, the
Information Commissioner's counsel and the NCC
counsel, on December 3, 1985. The short passage
records:
The Commissioner then invoked the notion of public interest
pursuant to subparagraph 8(2)(m)(i) of the Privacy Act for the
disclosure of the information. [That subparagraph is then
recited in full.]
The matter is next mentioned at page 4 (page
1039 of vol. IV), thus:
On April 25, 1986 the Chairman of the NCC replied to the
Commissioner and reiterated the need for another appraisal.
She also confirmed that the NCC was at odds on the principle
of disclosure of personal information in the public interest.
The Chairman's written representations return
to the matter of the public interest on page 7
where subparagraph 8(2)(m)(i) is again recited.
The question inherent in that provision is men
tioned at greater length on page 8 (or, page 1043
of vol. IV) in these passages, which are continued
in reference to subparagraph 8(2)(m)(i), and the
public interest, on to page 9 (1044):
The head of this institution has therefore the discretion to
disclose personal information; in exercising this discretion she
must balance the public interest in disclosure against the threat
to an individual's privacy. As stated in Part III of the Interim
Policy Guide: Access to Information Act and Privacy Act of the
Treasury Board.
"Information shall be disclosed under this provision only
when it is apparent that there is a clear public interest in
disclosure but no other release category under subsection
8(2) is applicable."
The public interest in disclosure is less than apparent in this
situation as there would be no general benefit for or advantage
to the public to be provided with that information. Further
more, since some of the conditions forming an integral part of a
lease would not be disclosed in this process, it would be
misleading to the public and unfair to the tenants.
A high standard both in terms of weight and nature of the
public interest is requested [sic] to demonstrate that the inva
sion of privacy is clearly outweighed by the public interest. The
mere fact that public lands are being leased certainly does not
imply under the legislation that the public has a right to know.
The head of this institution has determined in accordance
with subparagraph 8(2)(m)(i) of the Privacy Act that there is
no public interest in this case, or if any, would not be persuasive
or of such significance to outweigh any invasion of privacy.
The head of this institution, has determined that no public
benefit would be gained through the disclosure of the requested
information pertaining to residential tenants. Therefore no
information will be released pursuant to subparagraph
8(2)(m)(i) of the Privacy Act.
RECOMMENDATION
Moreover, the Privacy Commissioner should be requested to
intervene in this matter in an attempt to delineate the scope
and the parameters of subparagraph 8(2)(m)(i) of the Privacy
Act as it would be of benefit to this investigation.
Dated at Ottawa, Ontario this 9th day of June 1986.
[signed] Jean Pigott
Chairman
[Emphasis not in original text.]
The emphasized sentence in the Chairman's text
conveys an assertion which is plainly antagonistic
to "the general intent and purpose of the Act",
which is the basic criterion enunciated by the
Federal Court of Appeal, speaking by and through
Mr. Justice Heald J.A. in the Rubin case, above
cited. That simple, direct assertion emphasized in
the chairman's written representations, without
any explanation (and there is none), just cannot be
made to accord with the "right of access to infor
mation in records under the control of a govern
ment institution in accordance with the principles
that government information should be available
to the public [and] that necessary exceptions
should be limited and specific", promulgated in
subsection 2(1) of the Access to Information Act.
It is clear that a blunt, bare assertion of the
opposite is not a specific, limited exception no
matter how simplistic its expression. Indeed, that
mere traversal of the statutory principle is no
exception at all.
The NCC, speaking and acting by and through
its Chairman, evinces no weighing of the factor of
invasion of privacy against that of the public inter
est in disclosure, which weighing exercise is man
dated by subparagraph 8(2)(m)(î) of the Privacy
Act. The "public interest in disclosure" is a statu
tory Polaris, and it is not to be cursorily denigrated
by the simple assertions that it is "less than appar
ent in this situation" and that "there would be no
general benefit for or advantage to the public to be
provided with that information". Such assertions
do not constitute any weighing of one statutory
factor against the other. In any event, under sec
tion 2 of the information legislation, "the public
interest in disclosure" exists as a paramount value
which is to be suppressed only when and if it
clearly does not outweigh any invasion of privacy.
That requires that "any invasion of privacy" must
be a weighty matter, indeed, for if not, it will
inevitably be clearly outweighed by "the public
interest in disclosure".
So often in the jurisprudence one sees govern
ment institutions refusing to disclose information
because its subjects are individuals. Canada is not
a nation quantified in terms of automatons, spirits
or legal fictions, but in terms of people. In logic,
then, of all the information in records under the
control of a government institution, the over-
whelmingly greater part simply must be about
people. That factor does not make their privacy
paramount, for if that were the case, "the public
interest in disclosure" would be stillborn.
So, it is clear that one must, at least notionally,
quantify what might be called "the privacy inter
est" in order that "the public interest in disclo
sure" and it may be weighed against each other.
This is an intellectual exercise par excellence,
which subparagraph 8(2)(m)(i) exacts firstly of
the heads of government institutions, and secondly
by this Court, in order "that [their] decisions on
the disclosure of government information should
be reviewed independently of government."
Counsel for the Privacy Commissioner cited the
case of R. v. Pollock (1983), 29 Sask. R. 70 (Q.B.)
which propounds a test for forming an "opinion"
under a statute, whereby it can be seen that
according to such test (at pages 73-74) the head of
the NCC must be found to have formed no valid
opinion on the competing factors described in sub-
paragraph 8(2)(m)(i). Inter alia, the Pollock case
holds:
... the opinion must have been arrived at upon proper consider
ation, based on sufficient observation. It must have been an
objective opinion, capable of justification by appropriate
reasons.
For its circumstances, that test is closely akin to
the Rubin test applied in the present circum
stances. The effort by the Chairman of the NCC
demonstrably fails the test. The mere assertion of
the result falls far short of justification by appro
priate reasons. How such an opinion, pursuant to a
statutory provision, may be dealt with on appeal is
also illustrated in Swain et al. v. Dennison et al.,
[1967] S.C.R. 7, at pages 12-13.
How did the chairman of the NCC form her
alleged opinion? How did she weigh the counter-
vailing privacy interest? She hardly did so at all.
She did report in her written representations of
June 9, 1986, at page 8, or page 1043 of vol. IV,
that:
They [those tenants who made numerous phone calls to the
NCC] seemed very reluctant to disclose the information
requested as they expected that that information would remain
confidential. They also have expressed strong feelings that the
public has no right to know.
Now, the consent of the individual to whom the
information relates is the discrete subject of sub
section 8(1) of the Privacy Act, which forbids
disclosure by the institution without such consent,
"except in accordance with this section". Then
comes the next portion of "this section" in the
form of subsection 8(2) which accords many and
various permissions for the disclosure of informa
tion, listed in paragraphs from (a) to (m). Sub-
paragraph 8(2)(m)(i) permits disclosure for any
purpose, where in the opinion of the head of the
institution, the public interest clearly outweighs
any invasion of privacy which could result from
such disclosure.
The operation of subparagraph 8(2)(m)(i)
accords no weight at all to the consent or refusal
thereof, or the opinion, of the tenant, the individu
al to whom the information relates. It is obvious
why. Unless tenants were infused with some rare
desire to be "open books", they might all decline to
consent to disclosure, even if not treated with
favouritism, and once again the paramount public
interest in disclosure would be thwarted. The head
of the NCC, in reporting some of the tenants'
feelings, evinces no objective consideration of their
privacy interests, nor the weight to be accorded
any "invasion" thereof resulting with the require
ments of the statutory provision which she pur
ported to invoke, subparagraph 8(2)(m)(i). The
proof resides in the written representations which
she signed on June 9, 1986, exhibit C to L. J.
Prevost's affidavit (vol. IV, tab 17).
In performing this review "independently of
government", that is, independently of the head of
the government institution involved here, the
Court concludes, upon consideration of the evi
dence and reflection on the arguments of counsel
including their references to matters already in the
public domain, that the tenants' privacy interest in
the non-disclosure of their rental payment obliga
tions is negligible. It is so negligible that any
invasion of it, resulting from disclosure, is clearly
outweighed by the public interest.
How so? In the first place it is just not a matter
of privacy as to whether or not a tenant of a
government institution, the NCC, pays rent. It
must be presumed that every tenant pays rent in
money or in kind. If a tenant had an arrangement
whereby no legal consideration flowed to the NCC
for according to the tenant peaceful, exclusive
possession of the premises for rent, then it surely
would be in the public interest to disclose that
information, and not to cover up the facts. So,
presumably every tenant pays rent in some form,
in consideration for the right to occupy the rented
government-owned property. Leasing by a tenant
from a private landlord, generates a certain priva
cy interest, save perhaps in terms of the Income
Tax Act. One presumes that the tenant pays rent.
So, there can be no expectation of a privacy inter
est in the fact that the NCC's residential tenants
are presumed to pay rent. It is clearly in the public
interest to know that, or at least to presume it.
Now, what privacy interest is served by keeping
the amount of the rent under wraps? Millions of
Canadian home owners — mortgagors or their
successors in title — enjoy no privacy whatever in
regard to the amount, rate of interest thereon and
frequency of the instalments whereby they repay
the loans for which they have pledged their resi
dential premises as security under a mortgage or
hypothèque. It is all in the public domain, as is the
price paid for the real property upon purchase,
whether under the Torrens system, the cadastre
system or even, in many instances, under the old
"deeds" system. Even leases over a certain mini
mum term may be registered in the Torrens
system as must an estate in fee simple. The Court
may, and does, notice that the modern land titles
system, whereby the province issues and guaran
tees an indefeasible Torrens title to the fee simple,
mines and minerals, surface or leasehold, which is
completely open to the public with any and all
mortgages, encumbrances, liens, easements and
any cloud on the title assumed or imposed, is not
regarded as a curse by the people where it is in
force. Millions of Canadians outside the National
Capital Region, who yet have a public interest in
the NCC's stewardship, seem to evince a much
lower threshold of privacy interest, at least for
private real property possessions securing indebt
edness, than is evinced by some of the NCC's
tenants and officials. Indeed that which is open to
public scrutiny is not only encumbered title to real
property, but clear title, too. No one appears to be
in agony, or even discomfort over such an institu
tionalized "invasion" of privacy, for no privacy
exists in such instances. This, in face of the fact
that, quite apart from clear titles, the mortgaged
homes or leaseholds are also utterly private prop
erty securing quite private indebtedness. So, the
NCC's tenants are also indebted through renting,
in effect, publicly owned real property under lease
arrangements, about which there are rumours of
favouritism and consequent mismanagement (or
worse), of the taxpayers' money and property.
In Ontario, Quebec and Manitoba inter alia
there are rent control laws. They vary in the ease
with which a member of the public can have access
to information of the kind sought here. Counsel
did not invite the Court to survey all of the ten
ants' rights, or all landlord and tenant legislation
in Canada, even although the whole country is the
natural constituency of the NCC.
The applicant's counsel mentioned the law of
Ontario only. He averred (transcript, vol. I, pages
48-49) that pursuant to section 110 of the Land
Titles Act [R.S.O. 1980, c. 230] and subsection
21(7) of the Registry Act [R.S.O. 1980, c. 445]
leases can be registered and thereby become avail
able for public inspection, yielding the very kind of
information which is here in issue. Moreover the
Ontario Residential Rent Regulation Act, 1986
[S.O. 1986, c. 63], through regulations made pur
suant to it, last amended in the repeal and
re-enactment of section 5 thereof by Ont. Reg.
449/88 provides for release of "information
respecting the rent for a single specific rental unit
... by telephone, by mail or in person" and of all
other information upon application "in Form 7R".
Then again, the respondent's witness, Gaetan Roy,
an accredited appraiser of the Appraisal Institute
of Canada, under cross-examination on his affida
vit sworn July 6, 1988 (public record, vol. III, tabs
13 and 14, pages 937-938), swore that he dis
covered the rental rates paid for private (non-
NCC) comparable properties simply from the
multiple listing service, of which he was, and
maybe still is, a member.
Furthermore, all counsel agree that under the
NCC's constitutive statute, any lease of five years'
duration must be approved by Order-in-Council
and that tips the sought-after information right
into the public domain, despite the NCC Chair-
man's proclivity for keeping all NCC residential
rents and tenants' identities protected. But there is
more to consider in this regard. The Information
Commissioner's extremely well balanced and
cogently composed Report on results of investiga
tion, dated September 11, 1986, is persuasive in
presentation of fact and conclusions. At that
report's pages 21-22 are these passages:
Whether it [the privacy interest] is demonstratively greater
may depend on various factors. One is the degree to which the
information in question is regarded as private by the commu
nity generally and by the persons concerned — whether it is
treated as sensitive and highly private (like an invisible disabili
ty) or as a matter of general knowledge (like approximate
weight and height).
Section 3 of the Privacy Act explicitly expresses the common
view that there is a privacy interest requiring some measure of
control over one's name, address and financial information —
the very matters covered by the complainant's access request.
However, the situation with regard to the amount of rent paid
is ambiguous. Rent typically figures prominently in the finan
cial affairs of tenants — a matter specified in section 3 of the
Privacy Act among elements of "personal information" not
ordinarily subject to disclosure. But the amount of rent charged
for a particular property is commonly advertised by landlords
seeking to attract tenants. The amount is also routinely dis
closed by the landlord without the tenant's consent in a variety
of other circumstances, in connection, for example, with almost
any real estate transaction and through co-operation among
creditors. At the time of this access request, indeed, it was
NCC policy to routinely disclose the amount of rent paid to
creditors who asked, as well as whether and to what degree a
particular tenant was in arrears.
Further, the privacy interest in the amount of rent one pays is
similar in character to the privacy interest in the property value
of one's home which, again, is routinely available in tax assess
ment rolls, real estate transactions and expropriations.
The expectation of privacy is a related concern. The records in
this case involve property owned by a government institution.
This might lessen expectations of privacy, in light of the
generally acknowledged principle of government accountability
to Parliament for its activities, particularly since the passage of
the Access to Information Act. But, following passage of the
Privacy Act, the expectation of privacy might be higher.
Any harm that may be done to the individuals concerned by
invasion of their privacy is also a consideration. It is not
necessary to show that specific harm will — or even may — be
done, but an invasion of privacy will obviously be more serious
if it results in harm to the one whose privacy has been invaded.
Such harm could be stigma, disgrace, harassment, loss of
money, employment or friends, or adverse publicity. It is not
easy to predict what the effects of any invasion of privacy of
information will be, so it becomes necessary to weigh not only
the potential harm itself but also the likelihood that the harm
will occur. [Applicant's affidavit of October 21, 1986,
exhibit 12 in public application record, vol. I, pages 0059-60.1
The emphasized sentence in the above quoted
passage is confirmed by an internal NCC memo to
"property branch staff" dated September 10,
1981, a copy of which is exhibit T to Bruce M.
Anderson's affidavit sworn February 18, 1988,
filed in public application vol. II, tab 9, page 0472.
According to Mr. Anderson's exhibit U, the
NCC's free and easy access policy was somewhat
restrained by NCC's chief of financial services on
March 11, 1986, long after the applicant began
her quest for the kind of information formerly
given out.
In response to telephone enquiries by prospective
tenants, the NCC provides the information about
the amount of rent payable for a property. This
was admitted during the cross-examination of L. J.
Prevost, exhibited in public application record, vol.
IV, tab 18, page 1156. Moreover, exhibit 11 on his
cross-examination demonstrates that, almost uni
versally in the region, newspaper advertisements
for residential premises disclose the amount of rent
to be paid by a tenant, (public application record,
vol. VI, pages 1613-1642).
The respondent and the Privacy Commissioner
could demonstrate no real harm to tenants, and
the NCC's witness testified on cross-examination
that he had heard of none, in the already existing
free and easy access policy. It is acknowledged
that privacy is nevertheless privacy, whether its
invasion results in harm or not. However, the
disclosure of how much residential rent a person
pays to a government institution, pales into com
parative insignificance when one thinks of a really
serious invasion of privacy such as disclosure of a
criminal record, or of marital infidelity or medical
condition for examples of matters which, along
with income tax returns, most folks would not wish
to disclose, or to have disclosed about themselves.
It must also be acknowledged that those tenants,
if any, who really did benefit from the corrupt
"sweetheart deals" previously alleged to Mr.
Howard and to the applicant by Mrs. Pigott,
among others, if any such deals there be, would
possibly suffer embarrassment. Perversely, too,
they might enjoy respect and admiration for their
"astuteness", "influence" or "importance" in the
materialistic, hedonistic elements in the society of
Canada today. The Court concludes, upon all of
the evidence, argumentation and deliberation
engaged herein, that the privacy interest of the
NCC's residential tenants in their being identified
with the amount they pay for the NCC property
they occupy is a slight, leaky vessel.
The applicant and the Information Commission
er diverge in their argumentation as to whether the
tenants ought to be named in relation to the
identity of the NCC lands which they occupy. The
Information Commissioner is content to have only
the properties and their respective rents disclosed.
The applicant seeks all the information. Given how
much other real property holdings and holders are
so fully in the public domain all across Canada, it
seems unreasonable to shield the personal identi
ties of this small band of NCC tenants. Upon all
the foregoing, the Court concludes — as the head
of the NCC ought to have concluded — that "any
invasion of privacy" [of her institution's tenants]
which "could result from the disclosure" would be
of negligible weight or importance, both subjec
tively, and especially objectively, viewed and
assessed.
For centuries past, no doubt, it would have been
said by informed folk, as well as by the Courts,
that the sum of money or other consideration paid
by any identified tenant, as rent, to a private
landlord was nobody's business but the parties'
own. With the advent of rent control measures
established by the provinces, even that domain of
private contracting has yielded to the legislator's
notions of the public interest. The NCC, however,
is no private landlord. It is entrusted with the good
administration of the public's money and property.
That fact alone discloses a strong public interest in
knowing precisely how the public money and prop
erty, entrusted to the NCC, a government institu
tion, are administered. What further strengthens
the public interest, to the point of irresistibility, is
the spreading of rumours by persons of substance
to the effect that unjustifiable, if not corrupt,
favours are being bestowed by the NCC on its
tenants — the spreading of rumours even unto the
point of urging a newspaper columnist to verify
them. This, if anything, imparts such a massive
weight to the public interest in disclosure, that any
invasion of the tenants' meagre privacy interest is
of negligible consequence.
The public interest in disclosure has already
been extensively described and reviewed herein, in
terms of non-disclosure generating the corrosion of
public trust, and generating suspicion and public
cynicism in a free and democratic society which is
gravely, if not mortally, wounded by public cyni
cism. It is abundantly clear in such circumstances
that the public interest in disclosure clearly, vastly
outweighs any invasion of privacy which could
result from such disclosure.
His Lordship then dealt with the issue as to
whether the tenants' names, addresses and
rental payments constituted "personal informa
tion". Applicant's argument was that if certain
NCC tenants were paying less rent than was
exacted for comparable residential properties, the
NCC was conferring upon them a discretionary
benefit of a financial nature. In that case, the
information would not be "personal information"
under paragraph 3(I) of the Privacy Act.
The Information Commissioner had engaged a
real estate appraiser to give an opinion as to the
fair market rent of some 30 NCC properties. His
report indicated that 26 of these were worth more
than the rent charged. On average, the market
value was 65% higher than the rent charged by
the NCC. An appraiser engaged by the NCC
reported that 15 out of 26 properties were rented
at less than fair market value. The Information
Commissioner had made out a prima facie case
that a benefit of a financial nature had been
conferred by charging lower than market value
rents so that the information sought by applicant
was excluded from the statutory definition of
"personal information". It was open to the NCC to
publish some valid explanation for that situation.
Upon a proper interpretation of paragraph 3(I)
of the Privacy Act, it was unnecessary to have
obtained evidence of a quantifiable benefit. Just
by entering into a government contract (a lease
from the NCC) the tenants had conferred upon
them a discretionary benefit of a financial nature.
The contractual relationship need not be other
than ordinary and honourable. In other words, a
contractual relationship between an individual and
a government institution is enough to bring infor
mation relating thereto into the contemplation of
paragraph 3(I) of the Privacy Act.
Accordingly, the NCC was ordered by the Court
to disclose to the applicant the names and
addresses of its residential tenants as well as the
exact amount of rent that each was charged. The
applicant was awarded costs on a solicitor-and-
client basis while the Information Commissioner
had judgment for party-and-party costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.