Pinaymootang First Nation v. Canada (Minister of Health), 2009 Federal Court (unreported decision dated January 20, 2009)

June 2014

Summary: The Federal Court will intervene to prevent a government institution from exercising its discretion to disclose personal information in the public interest when the institution cannot demonstrate the accuracy of that personal information.

Facts: Health Canada received an Access to Information Act request for information in certain audit reports. The reports contained audit findings, including the names of three people who are identified as having acted improperly (through lax financial controls, for example). Health Canada identified the audit reports as containing personal information, but decided to exercise its discretion under s. 8(2)(m) of the Privacy Act to release the information because the public interest in disclosure outweighed the harm to the individuals’ privacy interest. The three named individuals then challenged that decision in Federal Court.

Result: The Federal Court overturned Health Canada’s decision in part, ordered Health Canada to redact the audit report to not disclose the identities of the three people.

Decision: The Federal Court was critical of Health Canada’s decision for two reasons. First, Health Canada provided two sets of reasons for the decision to disclose the identities of the three individuals that were inconsistent. Health Canada told the Privacy Commissioner (as it was required to do under s. 8(5) of the Privacy Act) that the disclosure of personal information was justified because the three individuals “have taken part in misappropriation of funds provided by Health Canada.” Health Canada told the individuals, on the other hand, that it was disclosing their identities on the basis that they were accountable as persons of authority. The Court questioned the fairness of Heath Canada’s approach.

Second, the Federal Court criticized Health Canada’s “misappropriation of funds” justification because there was no evidence that the individuals misappropriated funds. The audit report itself did not accuse them of misappropriation of funds. If Health Canada had evidence of misappropriation of funds, then it should have disclosed that information to the three individuals and given them the opportunity to rebut it. The Federal Court therefore set aside the decision to release the three names because it was based on a characterization of conduct which is not supported by the evidence.