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SCC Affirms Importance of Privacy in Heinz Case


July 28, 2006


Michelle Kisluk

The Supreme Court of Canada released its decision in H.J. Heinz Co. of Canada v. Canada (A.G.) on the issue of access to records and privacy. The Canadian Food Inspection Agency (CFIA) received a request for access to records under the Access to Information Act (Access Act) which related to a third party, Heinz. Finding that some of the records might contain confidential business or scientific information of Heinz as described in Section 20(1) of the Access Act, the CFIA notified Heinz in accordance with the Act to give Heinz the opportunity to make representations as to why the information should not be disclosed. Following Heinz’s representations, the CFIA determined that the information should be disclosed and Heinz commenced a review pursuant to Section 44 of the Access Act. Heinz argued that not only should the records not be disclosed because they fell under Section 20(1) of the Act, but also based on Section 19, which states that a government institution "shall refuse to disclose any record requested under this Act that contains personal information."

McCarthy Tétrault Notes:

Affirming the decisions of the trial judge and the Federal Court of Appeal, the court held that on a Section 44 review regarding disclosure of third-party confidential business or scientific information, the third party may raise the Section 19 exemption under the Access Act. The court dismissed the Attorney General’s argument that only Section 20(1) could be raised in such a review, as it was the basis for the right of review given in Section 44. The court examined the relationship between the Access Act and the Privacy Act and found that Section 44 must be interpreted with regard to the purpose of the Privacy Act. The court noted that the Privacy Commissioner and Information Commissioner have no power to issue binding orders in this context and prevent the disclosure of personal information. Rather, their powers apply after a wrongful disclosure has occurred and a complaint is made by the individual to whom the information pertains. Finding further that nothing in the Access Act prevents the third party from raising Section 19 in this context, the court held that "section 44 is the sole mechanism under either the Access Act or the Privacy Act by which a third party can draw the court’s attention to an intended disclosure of personal information in violation of Section 19 of the Access Act, and by which it can seek an effective remedy on behalf of others whose privacy would be affected by the disclosure of documents for which the third party is responsible."


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