Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527

June 2014

Summary: Financial information about individuals provided by the Peguis Indian Band to the federal government was “personal information” about those individuals and could not be disclosed.

Facts: The Peguis Indian Band (the “Band”) provided a significant amount of financial information to the federal government as part of its funding arrangement with the federal government. A member of that Band brought an application under the Access to Information Act to require the Department of Indian and Northern Affairs (“Department”) produce certain financial information about the Band. The Department released some information when requested, and released more information after the case made its way to the Federal Court. The Department still refused to release, for privacy reasons: (1) the names of two persons listed under the accounts receivable portion of the Band’s financial statements; (2) the names of people listed under the loans receivable portion of the Band’s financial statements; (3) the names of people listed under the accounts payable portion of the Band’s financial statements; (4) the job descriptions associated with certain salaries of the Band (the salary amounts were released, but not the job descriptions); and (5) the names of two people whose loans have been guaranteed by the Band.

Result: The Court decided that those items were “personal information” and therefore did not have to be disclosed.

Decision: The Court began by concluding that, prima facie, the five pieces of information set out above are “personal information” – in particular, in paragraph (b) of the definition, which includes “information relating to financial transactions in which the individual has been involved.” The issue was whether the information fell within the exemption in paragraph (l) of the definition because it was “information relating to a discretionary benefit of a financial nature.” Paragraph (l) of that definition does not state explicitly that the benefit has to be granted by a government institution; therefore, the individual making the request submitted that all discretionary benefits – no matter who granted them – are excluded from the definition of “personal information.” The Court rejected this argument, instead concluding that the discretionary benefits referred to in paragraph (l) are those conferred by a government institution. The Court reasoned that this interpretation was more consistent with Parliament’s intention and the absence of any public interest in denying the right to privacy to information about discretionary benefits between private parties.

The Court went on to conclude that, in any event, the information did not pertain to discretionary benefits. The transactions were all normal business transactions and therefore were not “discretionary” benefits. Some of the transactions could have been discretionary (for example, the loans receivable consisted of payroll advances, and the decision to make a payroll advance is discretionary); however, there was no direct evidence that these particular transactions were discretionary.

The individual making the request went on to argue that this personal information could be disclosed under s. 8(2)(k) of the Privacy Act – which permits disclosure to, among other things, “any association of aboriginal people… for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada.” Since the individual was a member of the Band (and aboriginal himself), he argued that this exception applied to him. The Court disagreed. The Court reasoned that the phrase “researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada” contemplated formal claims or disputes brought by aboriginal peoples in their capacity as aboriginal peoples. Not all disputes between individuals of aboriginal descent triggered s. 8(2)(k) of the Privacy Act.