2011 FCA 263, 2011 FCA 263

[2013] 2 F.C.R. 491 2011 FCA 263 A-266-10 Jacques Nault ( Appellant ) v. The Minister of Public Works and Government Services Canada ( Respondent ) Indexed as: Nault v. Canada (Public Works and Government Services) Federal Court of Appeal, Nadon, Trudel and Mainville JJ.A.—Montréal, September 6; Ottawa, September 22, 2011.

Access to Information –– Privacy — A ppeal from Federal Court decision dismissing judicial review on ground that information appellant seeking constituting “personal information” within meaning of Privacy Act (Act), s. 3 –– Appellant applying unsuccessfully for positions in federal public service – Under Access to Information Act, requesting disclosure of documents submitted by each candidate hired following recruitment competitions in which appellant himself taking part –– Appellant submitting that information sought relating to position, functions of public service employees in question; thus, caught by s. 3(

j) exception to definition of “personal information” under Act –– Head of concerned department refusing disclosure of information thereto except for candidates’ employment history within federal government institutions on basis information covered in definition of “personal information” found in Act, s. 3(b) –– Federal Court rejecting application given that definition of “personal information” in Act, s. 3(

b) expressly including information relating to education, that “employment history” must be interpreted broadly — Whether Federal Court correctly interpreting Act, s. 3 definition of “personal information” by finding that requested information not caught by s. 3(

j) exception –– Information appellant requesting of personal nature since relating to education, employment history of candidates in question; specifically contemplated by Act, s. 3(

b) definition of “personal information” –– While Act, s. 3(

b) of general application, s. 3(

j) exception applying only to “individual who is or was an officer or employee of a government institution”–– Individual’s employment history in government institution covered by exception but employment history of individual never working for government institution not covered thereby –– Consequently, employment history of individual applying unsuccessfully for government position constituting “personal information”, disclosure of which must be denied – Distinction must be made between information relating to requirements, qualifications for holding position in government institution, information relating to education, employment history of candidate filling position –– While disclosure of requirements, qualifications for holding position in government institution meeting objectives of federal access to information legislation (i.e. increasing transparency in government), past education, employment acquired prior to hiring by government institution constituting individual’s personal assets, type of information Act seeking to protect –– In interpreting Access to Information Act , Act, focus to be placed simultaneously on statutory provisions at issue, purposes of two statutes –– Therefore, requested information not caught by Act, s. 3(

j) exception since constituting information concerning educational, employment history of individuals before being hired by federal public service –– Appeal dismissed. This was an appeal from a Federal Court decision dismissing an application for judicial review on the ground that the information sought by the appellant constituted “personal information” within the meaning of

section 3 of the Privacy Act (Act). The appellant, whose candidacy for certain positions in the federal public service was unsuccessful, requested under the Access to Information Act the disclosure of the documents submitted by each of the 61 candidates hired following the recruitment competitions in which he himself had participated.

Although the requested information concerns the history of individuals prior to their being hired in the federal public service, the appellant submitted that the information relates to the position and functions of the public service employees in question since this information makes it possible to establish whether there is a correlation between the requirements advertised for the positions and the qualifications of the successful candidates. Thus, he claimed that the information is sufficiently related to the positions in question to be caught by the exception provided at paragraph (

j) of the definition of “personal information” found in

section 3 of the Act. The head of the concerned department refused to disclose to the appellant the information relating to the education and employment history of the targeted candidates, except for their employment history within federal government institutions, for the reason that the information was covered by paragraph (

b) of the definition of “personal information” found in

section 3. The exception at paragraph 3 (

j) of the Act states that personal information within the meaning of that statute does not include information about an individual who is or was an officer or employee of a government institution and that relates to the position or functions of the individual. The Federal Court rejected the application given that paragraph (

b) of the definition of “personal information” at

section 3 of the Act expressly includes information relating to education and that “employment history” must be interpreted broadly to include the list of positions previously held by an individual, his or her places of employment and the tasks performed. It also found that the requested information did not relate to an action taken by the successful candidates as part of their functions as state agents. The sole issue was whether the Federal Court correctly interpreted the definition of “personal information” found in

section 3 of the Act by finding that the requested information was not caught by the exception provided at paragraph 3(

j) thereof. Held , the appeal should be dismissed. The information requested by the appellant was of a personal nature since it related to the education and employment history of the candidates in question and is specifically contemplated by paragraph (

b) of the definition of “personal information” found in

section 3 of the Act . While paragraph (

b) is of general application, paragraph 3(

j) of the Act applies only to an “individual who is or was an officer or employee of a government institution”. Thus, a person’s employment history in a government institution is covered by the exception stated in paragraph 3(

j) of the Act but the employment history of an individual who has never worked for a government institution is not covered thereby. Consequently, the employment history of an individual who applied unsuccessfully for a position in a government institution is “personal information”, the disclosure of which must be denied.

A distinction must be made between information relating to the requirements and qualifications for holding a position in a governmentinstitution and information relating to the education and employment history of the candidate who fills the position. The requirementsand qualifications for a position are indeed determined by the government institution, and their disclosure to the public meets theobjectives of federal access to information legislation, in particular to increase transparency in government.

However, past education andemployment acquired prior to hiring by a government institution are an individual’s personal assets, which have been obtained withoutthe involvement of the government institution that subsequently hires that individual. This is the type of information the Act seeks toprotect. In interpreting the Access to Information Act and the Act, focus must be placed simultaneously on the statutory provisions at issue andthe purposes of the two statutes. Therefore, the requested information was not caught by the exception under paragraph 3(

j) of the Actsince it constituted information concerning the educational and employment history of individuals before being hired by the federalpublic service. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 4(1) (as am. by S.C. 1992, c. 1, s. 144 Sch. VII, Item 1; 2001 c. 27, s. 202), 19,41, 53(2). Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3 “personal information” (as am. by S.C. 1992, c. 1, s. 144, Sch. VII, Item 47(F)). CASES CITED applied: Canada (Information Commissioner) v.

Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R.66, 224 D.L.R. (4th) 1, 47 Admin. L.R. (3d) 1. considered: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, 319 D.L.R. (4th) 385, 1Admin. L.R. (5th) 235; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, 148 D.L.R. (4th) 385, 46Admin. L.R. (2d) 155; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441, 266 D.L.R.(4th) 675, 48 C.P.R. (4th) 161. referred to: Canada (Information Commissioner) v.

Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, 331 D.L.R. (4th)513, 18 Admin. L.R. (5th) 181; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1;Canada (Information Commissioner) v. Canada (Solicitor General), (FC), [1988] 3 F.C. 551, (1988), 31 Admin. L.R.103, 20 F.T.R. 314 (T.D.); Statham v. Canadian Broadcasting Corporation, 2010 FCA 315, [2012] 2 F.C.R. 421, 326 D.L.R. (4th) 228,409 N.R. 350.

APPEAL from a Federal Court decision (2010 FC 623, [2011] 4 F.C.R. 349, 369 F.T.R. 204) dismissing an application for judicialreview on the ground that the information sought by the appellant constituted “personal information” within the meaning of

section 3 ofthe Privacy Act. Appeal dismissed. APPEARANCES Jacques Nault on his own behalf. Caroline Laverdière for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for respondent. The following is the English version of the reasons for judgment rendered by Mainville J.A.: Overview [1] The thorny question raised in this appeal is whether the prior employment history of an employee of a government institution iscovered by the exception provided at paragraph (

j) of the definition of “personal information” found in

section 3 of the Privacy Act,R.S.C., 1985, c. P-21. [2] Mr. Nault, whose candidacy for certain positions in the federal public service was unsuccessful, is requesting, under the Access toInformation Act, R.S.C., 1985, c. A-1, the disclosure of the documents (curriculum vitae, letters, proof of education) submitted by each ofthe 61 candidates hired following the recruitment competitions in which he himself participated. [3] According to Mr.

Nault, the requested information must be disclosed to him as the disclosure of this type of information allowsCanadian citizens to satisfy themselves that the hiring criteria for the federal public service positions in question were respected, therebyholding the Canadian state to account for its actions and decisions. Although the requested information concerns the history ofindividuals prior to their being hired in the federal public service, Mr.

Nault submits that the information relates to the positions andfunctions of the public service employees in question since this information makes it possible to establish whether there is a correlation

between the requirements advertised for the positions and the qualifications of the successful candidates. According to Mr. Nault, the information is therefore sufficiently related to the positions in question to be caught by the exception provided at paragraph (

j) of the definition of “personal information” found in

section 3 of the Privacy Act (paragraph 3( j )). [ 4 ] Mr. Nault explains that his access request does not concern all diplomas obtained by the candidates selected for the positions or their entire employment history; rather, he is seeking information that will facilitate the correlation with the eligibility requirements advertised for the positions.

The competition notices for the positions in question required an undergraduate degree with an appropriate specialization or eligibility for a recognized professional accounting designation, experience in the field of financial administration and knowledge of accounting principles and practices and of financial administration. [ 5 ] The head of the concerned department refused to disclose to Mr. Nault the information relating to the education and employment history of the targeted candidates, except for their employment history within federal government institutions.

In the opinion of the head of the department, this information was covered by paragraph (

b) of the definition of “personal information” found in

section 3 of the Privacy Act and could therefore not be disclosed under subsection 19(1) of the Access to Information Act . [ 6 ] Mr. Nault’s subsequent complaint to the Information Commissioner was rejected. Mr. Nault’s application for judicial review under

section 41 of the Access to Information Act , was also dismissed by Justice Gauthier of the Federal Court [2010 FC 623 , [2011] 4 F.C.R. 349] on the ground that the information in question was indeed “personal information” within the meaning of

section 3 [as am. by S.C. 1992, c. 1, s. 144 , Sch. VII, Item 47(F)] of the Privacy Act . [ 7 ] The only issue in this appeal is whether the requested information is caught by the exception provided at paragraph 3 (

j) of the Privacy Act , which sets out that personal information within the meaning of that statute does not include information about an individual who is or was an officer or employee of a government institution and that relates to the position or functions of the individual. [ 8 ] For the reasons that follow, it is my view that the requested information is not caught by this exception and that it is rather “personal information” within the meaning of paragraph (

b) of the definition of “personal information” found in

section 3 of the Privacy Act . Consequently, the head of a government institution must refuse to disclose such information under subsection 19(1) of the Access to Information Act . I would therefore dismiss this appeal; however, in light of subsection 53(2) of the Access to Information Act , I would ask the parties to file additional submissions concerning costs.

Statutory context [ 9 ] As stated by the Supreme Court of Canada on several occasions, “[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance” ( Ontario (Public Safety and Security) v. Criminal Lawyers’ Association , 2010 SCC 23 , [2010] 1 S.C.R. 815, at paragraph 1 ; Canada (Information Commissioner) v.

Canada (Minister of National Defence) , 2011 SCC 25 , [2011] 2 S.C.R. 306 ( National Defence ), at paragraph 15 ). These principles arise out of subsection 2(1) of the Access to Information Act : Purpose 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. [ 10 ] The right to access any record under the control of a government institution is clearly provided for in subsection 4(1) [as am. by S.C. 1992, c. 1, s. 144 , Sch.

VII, Item 1; 2001, c. 27, s. 202 ] of the Access to Information Act , but this right must be exercised “[s]ubject to this Act ”. One of the significant exceptions to this access right concerns personal information as defined in

section 3 of the Privacy Act . Indeed,

section 19 of the Access to Information Act provides as follows: Personal information 19.

(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in

section 3 of the Privacy Act . Where disclosure authorized

(2) The head of a government institution may disclose any record requested under this Act that contains personal information if (

a) the individual to whom it relates consents to the disclosure; (

b) the information is publicly available; or (

c) the disclosure is in accordance with

section 8 of the Privacy Act . I note straightaway that subsection 19(2) of the Access to Information Act and

section 8 of the Privacy Act are not at issue in this appeal. [ 11 ]

Section 2 of the Privacy Act states that the purpose of that statute 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. For the purposes of that statute,

section 3 sets out that all information about an identifiable individual is “personal information”. This is a very broad definition that is nonetheless delimited by the various examples provided at paragraphs (

a) to (

i) of the definition. Undoubtedly, however, information relating to the education and employment history of an identifiable individual is “personal information” given that it is specifically referred to at paragraph (

b) of the definition:

Definitions 3. In this Act , …

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

a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual, (

b) information relating to the education or the medical, criminal or employment history of the individual orinformation relating to financial transactions in which the individual has been involved, (

c) any identifying number, symbol or other particular assigned to the individual, (

d) the address, fingerprints or blood type of the individual, (

e) the personal opinions or views of the individual except where they are about another individual or about a proposalfor a grant, an award or a prize to be made to another individual by a government institution or a part of a governmentinstitution specified in the regulations, (

f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private orconfidential nature, and replies to such correspondence that would reveal the contents of the original correspondence, (

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

h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to theindividual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the otherindividual where it appears with the views or opinions of the other individual, and (

i) the name of the individual where it appears with other personal information relating to the individual or where thedisclosure of the name itself would reveal information about the individual, [Emphasis added.] [12] However, paragraphs (

j) and (

m) of the definition of “personal information” found in

section 3 of the Privacy Act provide someexceptions to the definition, including personal information about an individual who is or was an officer or employee of a governmentinstitution and that relates to the position or functions of the individual:

Definitions3. … but, for the purposes of sections 7, 8 and 26 and

section 19 of the Access to Information Act, does not include (

j) information about an individual who is or was an officer or employee of a government institution that relates to theposition or functions of the individual including, (

i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (

v) the personal opinions or views of the individual given in the course of employment, (

k) information about an individual who is or was performing services under contract for a government institution thatrelates to the services performed, including the terms of the contract, the name of the individual and the opinions or views ofthe individual given in the course of the performance of those services, (

l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit,conferred on an individual, including the name of the individual and the exact nature of the benefit, and (

m) information about an individual who has been dead for more than twenty years; [Emphasis added.] [13] The principles underlying the Access to Information Act and the Privacy Act may seem contradictory at first glance, but the twostatutes must nonetheless be interpreted in relation to one another. The approach to interpreting the two statutes was set out as follows inDagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403 (Dagg), at paragraphs 1 and 45 to 57: (a)Parliament has not given access to information priority over privacy right; (

b) the two statutes have equal status; and (

c) the courts musthave regard to the purposes of both statutes in considering whether information contained in a government record constitutes “personalinformation”. [14] The Supreme Court of Canada has more recently dealt with the

interpretation of these two statutes in H.J. Heinz Co. of CanadaLtd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441 (Heinz), at paragraphs 2 and 22 to 31, where Justice Deschampsreiterated that a careful balance between the two statutes had to be struck, while emphasizing that specific attention must be given toprivacy rights given the “quasi-constitutional” character of privacy in light of the role it plays in the preservation of a free and democraticsociety.

Justice Deschamps wrote as follows at paragraph 31 of Heinz: It is apparent from the scheme and legislative histories of the Access Act and the Privacy Act that the combined purpose of the twostatutes is to strike a careful balance between privacy rights and the right of access to information. However, within this balanced

scheme, the Acts afford greater protection to personal information. By imposing stringent restrictions on the disclosure of personalinformation, Parliament clearly intended that no violation of this aspect of the right to privacy should occur. For this reason, since thelegislative scheme offers a right of review pursuant to s. 44, courts should not resort to artifices to prevent efficient protection of personalinformation. Federal Court decision [15] Relying on the Supreme Court of Canada’s decision in Canada (Information Commissioner) v.

Canada (Commissioner of theRoyal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66 (Royal Mounted Police), Justice Gauthier [2010 FC 623 ,[2011] 4 F.C.R. 349] identified correctness as the standard of review applicable to the decision of the head of a government institutionwho refuses to disclose information under

section 3 of the Privacy Act and subsection 19(1) of the Access to Information Act. [16] Relying on both Dagg and Royal Mounted Police, the Judge then determined that the information Mr. Nault was seeking was“personal information” within the meaning of paragraph (

b) of the definition of this expression at

section 3 of the Privacy Act, given thatit expressly includes information relating to education and that “employment history” had to be interpreted broadly to include the list ofpositions previously held by an individual, his or her places of employment and the tasks performed. [17] Justice Gauthier also found that the purpose of the exception at paragraph 3(

j) of the Privacy Act was to ensure that the state andits agents are held accountable. According to the Judge, the requested information did not relate to an action taken by the successfulcandidates as part of their functions as state agents. She added that the requested information does not become public information simplyby virtue of the fact that it was analysed or examined by another federal public servant in order to decide which of the candidates wouldbe hired for the positions in question. She also noted that Parliament did not use the expression “employment history” at paragraph 3(j),while using it expressly at paragraph (

b) of the definition in question. [18] Lastly, regarding costs, Justice Gauthier recognized the novelty of the issue raised by Mr. Nault’s application for review and theparticular circumstances of the case, concluding that each party should bear its own costs. Standard of review [19] The standard of review applicable to the decision of the head of a government institution who refuses to disclose documentscontaining personal information under

section 3 of the Privacy Act and subsection 19(1) of the Access to Information Act is correctness.The

interpretation of paragraph 3(

j) of the Privacy Act is also reviewable on the standard of correctness: Royal Mounted Police, atparagraphs 14 to 19; National Defence, at paragraph 22. [20] A Federal Court decision made as a result of a review of such issues may, in turn, be reviewed on appeal in accordance with theprinciples set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraphs 8 to 9, and 31 to 36: National Defence, atparagraph 23. [21] In this case, Justice Gauthier properly identified the applicable standard of review. The question in this appeal, therefore, iswhether she correctly interpreted the definition of “personal information” found in

section 3 of the Privacy Act. Analysis [22] There is little doubt that the information asked for by Mr. Nault (curriculum vitae, letters, proof of education) is of a personalnature. Indeed, the information relates to the education and employment history of the candidates in question and is specificallycontemplated by paragraph (

b) of the definition of “personal information” found in

section 3 of the Privacy Act. As pointed out byJustice Gonthier at paragraph 25 of Royal Mounted Police, “[t]he ordinary meaning of ‘employment history’ includes not only the list ofpositions previously held, places of employment, tasks performed and so on, but also, for example, any personal evaluations anemployee might have received during his career.

Such a broad definition is also consistent with the meaning generally given to thatexpression in the workplace.” [23] In Royal Mounted Police, Justice Gonthier concluded at paragraph 39 that the list of the RCMP members’ historical postings,their status and dates; the list of ranks, and the dates they achieved those ranks; and their years of service were all elements that relate tothe general characteristics associated with the position or functions of an RCMP member that are caught by the exception set out inparagraph 3(

j) of the Privacy Act. This information is relevant to understanding the functions members of the RCMP perform withoutrevealing anything about their competence or divulging any personal opinion they might have given outside the course of employment.Justice Gonthier however noted the following at paragraph 34 of Royal Mounted Police:

Section 3(

j) applies only to an “individual who is or was an officer or employee of a government institution”, and only for the purposes ofss. 7, 8 and 26 and s. 19 of the Access Act. In contrast, s. 3(

b) is of general application. Parliament has therefore chosen to give lessprotection to the privacy of federal employees when the information requested relates to their position or functions. It follows that if afederal institution has in its possession the employment history of an individual who has never worked for the federal government, thatinformation remains confidential, whereas federal employees will see the information relating to their position and functions released.Section 3(

b) therefore has a wider scope, as it applies to every “identifiable individual”, and not just individuals who are or were officersor employees of a government institution. [24] Consequently, a person’s employment history in a government institution is covered by the exception set out at paragraph 3(

j) ofthe Privacy Act. However, the employment history of an individual who has never worked for a government institution is not covered bythis exception.

Therefore, the employment history of an individual who applied unsuccessfully for a position in a government institutionis “personal information” the disclosure of which must be denied. [25] As I noted above, the thorny question raised in this appeal, and which Justice Gonthier did not answer in Royal Mounted Police,is whether the employment history of an employee of a federal government institution prior to his or her being hired by that governmentinstitution is covered by the exception set out at paragraph 3(j). In other words, as expressed by Justice Gonthier at paragraph 38 of Royal

Mounted Police, is this information sufficiently related to the position or functions held by an employee of a government institution tomake it possible to conclude that the exception applies? [26] In my opinion, one must distinguish, as Justice Gauthier did, between information relating to the requirements and qualificationsfor holding a position in a government institution and information relating to the education and employment history of the candidate whofills the position. [27] The requirements and qualifications for a position are indeed determined by the government institution, and their disclosure tothe public meets the objectives of federal access to information legislation, namely, to increase transparency in government, contribute toan informed public and enhance an open and democratic society.

However, past education and employment acquired prior to hiring by agovernment institution are an individual’s personal assets which have been obtained without the involvement of the governmentinstitution that subsequently hires that individual. This is the type of information that the Privacy Act seeks to protect. [28] In this respect, the list of examples provided at subparagraphs (

i) to (

v) of paragraph 3(

j) of the Privacy Act, albeit not necessarilyexhaustive (Royal Mounted Police, at paragraph 29), nonetheless properly illustrates that the information contemplated by the exceptionmust relate to a position with a government institution rather than to activities at an educational institution or with another employer. [29] The following are thus notably contemplated by the exception: the fact of being or having been an officer or employee of agovernment institution; the title, business address and business telephone number in a government institution; the classification, salaryrange and responsibilities of the position held in a government institution; the names of the individual on a document prepared by theindividual in the course of employment with a government institution; and the personal opinions or views of the individual given in thecourse of employment with a government institution.

In contrast, information related to an individual’s activities outside his employmentwith a government institution are not covered by the exception, whether these activities were pursued before, during or after theconcerned individual was employed by a government institution. [30] As Justice Gonthier further pointed out at paragraph 35 of Royal Mounted Police: Further, only information relating to the position or functions of the concerned federal employee or falling within one of the examplesgiven is excluded from the definition of “personal information”.

A considerable amount of information that qualifies as “employmenthistory” remains inaccessible, such as the evaluations and performance reviews of a federal employee, and notes taken during aninterview.

Indeed, those evaluations are not information about an officer or employee of a government institution that relates to theposition or functions of the individual, but are linked instead to the competence of the employee to fulfil his task. [31] Information concerning achievements at an educational institution or positions held prior to hiring by a government institution donot relate to a position or functions with a government institution, but rather concern a position or functions with another employer oractivities at an educational institution. [32] According to Mr.

Nault, the requested information must nonetheless be disclosed to him so that the Canadian public can satisfyitself that the hiring criteria for the federal public service positions in question were respected. This argument is specious. One could aseasily argue that the Canadian public must be able to satisfy itself that the incumbents of positions in the federal public service arecompetent. The courts have, however, decided that the evaluations of the employees of a government institution are “personalinformation” which are not contemplated by the exception set out at paragraph 3(

j) of the Privacy Act: Dagg, at paragraph 94; RoyalMounted Police, at paragraph 35; Canada (Information Commissioner) v. Canada (Solicitor General), (FC), [1988] 3F.C. 551 (T.D.). [33] In interpreting the Access to Information Act and the Privacy Act, one must focus on the statutory provisions at issue while at thesame time considering simultaneously the purposes of the two statutes.

In doing so, I conclude that information relating to the incumbentof a position in a government institution and concerning his education and employment history prior to being hired by a governmentinstitution is information that Parliament seeks to protect under the Privacy Act. Costs [34] Justice Gauthier recognized the novelty of the issue raised by the application for review filed by Mr. Nault and the particularcircumstances of this application, concluding that each party had to bear its own costs.

However, subsection 53(2) of the Access toInformation Act provides that in cases where the Court is of the opinion that an application for review has raised an important newprinciple, costs must be awarded to the applicant even if the applicant has not been successful in the result: 53. … [Costs]

(2) Where the Court is of the opinion that an application for review under

section 41 or 42 has raised an important new principlein relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful inthe result. [35] As pointed out by this Court in Statham v.

Canadian Broadcasting Corporation, 2010 FCA 315, [2012] 2 F.C.R. 421, atparagraph 71, subsection 53(2) of the Access to Information Act is a reflection of Parliament’s intent that important issues concerning thisstatute be brought before the courts, and that a litigant who raises such issues is not to be deprived of an award of costs solely because heor she was unsuccessful.

The provision ensures that litigants who raise important new questions in the context of applications for reviewunder the statute are not penalized. [36] The provisions of subsection 53(2) do not appear to have been raised before Justice Gauthier, nor were they raised before thisCourt. Although the mandatory nature of subsection 53(2) seems clear, I would nonetheless request that the parties file submissions oncosts within 15 days of the judgment. Conclusions

[ 37 ] For the foregoing reasons, I would dismiss the appeal, and I would request that the parties file written submissions with the Court on costs within 15 days of the judgment dismissing the appeal. Nadon J.A.: I agree. Trudel J.A.: I agree.