FOI Legal Decisions

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FOI Legal Decisions

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Federal access to information court cases where I have been a lay litigant party are highlighted below:

  • Rubin v. Minister of Public Works 1985 (T-450-85)

(this case was discontinued after Public Works released thousands of pages on UFFI insulation found in federal office buildings which they originally claimed were all cabinet confidences)

  • Rubin v. Minister of Employment and Immigration 1985 (T-194-85) F.C.J. No. 78; and Rubin v. Minister of Health and Welfare 1985 (T-936-85)

(these cases attempted to argue that fees should be waived for software access procedure manuals and electronic data record indexes)

  • Rubin v. Canada (Solicitor General) 1986 CarswellNat 789

(the court denied records of the investigative techniques used by the RCMP in examining forest fires set in British Columbia. But records on the party to which the RCMP sought confidential arrangements with in exchanges (it was NATO) was ordered released)

  • Rubin v. Canada (Ministers of Finance, Regional Economic Expansion and Transport) 1987 (T-992-86) CarswellNat 329; 9 F.T.R. 317; 1 F.T.R. 157

(these cases were an attempt to argue that preparation fees where the physical time taken to block out claimed exemption on pages was chargeable was a form of constructive refusal of access and against the disclosure spirit of the Access to Information Act)

  • Rubin v. CMHC 1987 (Trial-1019-86) CarswellNat 1114; 8 F.T.D. 230; Rubin v. Canada (CMHC) 1989 (Appeal-108-97) 1 FC p. 265 C. A. ; 52 D.L. R. (4th) 671; 21 C.P.R. (3d)

(this precedent-setting appeal stated that federal agencies did not have absolute discretionary authority to impose exemptions without review and severances, including in the case of Central Mortgage and Housing Corporation Board of Directors’ meeting minutes)

  • Ken Rubin v. NCC (T-217-86, T-2641-87, T-839-88)

(the purpose of these 1986-1988 motions were to get the National Capital Commission to speed up their response times and to not hide their decision making Commission meeting minutes)

  • Rubin v. Canada (Attorney General) 1990 (T-2581-90) CarswellNat 665; F.C. 642; 37 F.T.R. 152

(this was an attempt to apply the section 15 equality provision of the Canadian Charter of Rights and Freedoms so that when it came to court cost awards, lay litigants would be treated the same as solicitors and be eligible for costs as well as disbursements)

  • Canada Packers Inc. v. The Minister of Agriculture, Information Commissioner of Canada, Jim Romahn, and Ken Rubin (Trial) 1988 F.C. 483; Canada Packers Inc. v. The Minister of Agriculture, Information Commissioner of Canada, Jim Romahn, and Ken Rubin 1989 (Appeals-1345-87, 540-88) 1 F. C. 47 (C.A.) 265 [the Canada Packer case was one of several joined together– the others initiated by Burns Meat Ltd., Gainers Inc., F. W. Fearman Co., Intercontinental Packers Ltd., IBP Inc., Oscar Mayer Foods Corp., Piller Sausages Ltd., J. M. Schneider Inc., and Toronto Abattoir Ltd.]

(these appeals were brought by large Canadian meat packer firms who did not want government meat inspection reports released on their meat packers’ plants to the applicants – the meat packers lost but they and the government eventually changed the reporting and inspection system to the detriment of the public – the judgements did restrict claims that could be made for commercial confidentiality)

  • The Information Commissioner of Canada, Mary Calamai, Ken Rubin v. the Prime Minister of Canada and PCO, 1993 (T-1390-92) CarswellNat 185; 1 F. C. 10257

(this case, involving several parties, succeeded at getting most of the Meech Lake constitutional polling data released from the Privy Council Office; it set higher evidentiary review standards for agencies before they could or should claim exemptions)

  • Rubin v. Canada (Privy Council Clerk) 1993 (Trial-1390-92;T-1391-92;Trial-2651-90; T-1587-91, T-2651-90) CarswellNat 420; 48 C.P.R. (3d) 348; F.C. No. 391; 63 F.T.R. 14 Admin. L.R. (2d) 246; Rubin v. Canada (Privy Council Clerk) 1994 (Appeal-A-245-93) CarswellNat 853; 2 F.C. 707; 54 C.P.R. (3d) 511; 117 N.R. 43; 25 Admin. l. R. (2d) 241; 113 D.L.R. (4th) 275; and Rubin v. Canada (Clerk of the Privy Council), 1996: 1 (Supreme Court) S.C.R. 6

(this was an unsuccessful legal battle that went all the way to the Supreme Court of Canada over whether an access applicant could see and cross-check the exchanges the Information Commissioner of Canada had with agencies; in effect, the courts added a new field of exemption – originally, what was being primarily sought at the Trial Court level was the exact per diem renumeration of a governor-in-council appointee and information as to how the appointee received a higher reimbursement than his predecessor as Chairperson at the Canada Council – the Trial Judge said that such non-disclosure was “surprising” but that his hands were tied by the Access to Information Act wording)

  • Chambers Ottawa (1992) v. National Capital Commission 1995 (Appeal-64-95; A-68-95) F.C.J. No. 1655, 1656 (abandoned); and Perez Bramalea Ltd. v. National Capital Commission 1995 F. C. J. No. 63 (Ken Rubin party intervenor)

(these appeals were to prevent more data from being released to the applicant on a controversial building lease that the developer (Perez Bramalea Ltd.) had with the National Capital Commission for developing and renting space to the NCC for its new headquarter building, called the Chambers building in downtown Ottawa – the developer (Perez) was largely successful in maintaining such commercial secrecy)

  • Rubin v. Minister of Transport 1995 (Trial-2187-93; T-891-93) CarswellNat 815; 39 Admin. L.R. (2nd) 301 F.C.J. No. 1731; and Rubin v. Canada (The Minister of Transport) 1998 (Appeal-70-96) CarswellNat 2190; 154 D.L.R. (4th) 414; 2 F. C. 430

(this appeal, successful after several years, resulted in the release of a secretive Transport Canada report on the airline safety deficiencies record of a then charter airline company, Nationair. The Federal Court of Appeal agreed that once law enforcement investigations were completed the report data became releasable – this part of the decision was unfortunately later overturned in a Supreme Court case; however, the appeal court statements on the necessity of air safety regulation and inspection and on the spirit of disclosure under section 2 of the Access to Information Act remain)

  • Rubin v. Canada (Foreign Affairs and International Trade) 2001 (Trial-2304-98) CarswellNat 2513; FCT 440; 100 A.C.W.S. (3rd) 946

(this was a test case trying to get much greater transparency on the environmental terms and arrangements the Canadian government had entered into with the Chinese government to provide Candu technology in the construction in China of two nuclear reactors, a project to which Canada loaned China $1.5 billion dollars)

  • Rubin v. Canada (Minister of Health) (Trial-2408-98) 2001 CarswellNat 1856 F.C.J. no. 1298; 14 C.P.R. (4th); and Rubin v. Canada (Minister of Health) 2003 (Appeal-575-01) Carswell 780; FCA 37; 23 C.P.R. (4th) 312

(a hard-fought case that presented legal grounds as to why the public interest health and safety override provision in the commercial confidentiality exemption needed to be invoked to release the clinical and drug data from a Health Canada review of the safety of calcium channel blocker drugs – data that several large multi-national drug companies had objected to being released. However, the Federal Court of Appeal upheld Health Canada’s contention that commercial confidentiality was more important and costs were awarded against the applicant and $1500 was collected in this public interest test case)

The Federal Court Registry has the factums and motions that form part of the above cases. Stories connected to some of the above federal court cases are found on the DVD Digging for Data Over The Years. Note that there were other federal court cases where, as the original applicant, I was a party to Federal Court actions. As well, I have been an active appellant in Ontario and in other provinces where Information Commissioners have issued binding orders.

Significant Provincial Decisions

Recent significant April, 2017 Ontario Information Commissioner Orders (Rubin versus Ontario Ministry of Finance and Financial Service Commission of Ontario) prevented the Ontario government from exempting lobbying records under policy advice and cabinet confidences exemptions (orders PO-3719 and PO-3720).

Ontario Information Commissioner Order MO-3628 June 27, 2018 (Ken Rubin versus City of Ottawa, Rideau Transit Group) granted access in the public interest to light rail transport non-conformance reports

A January 29, 2021 Nova Scotia Information Commissioner ruling (review report 21-02 found on the Commissioner’s website) agreed with my complaint against the Nova Scotia College of Arts and Design College about their abandoning responding to a FOI request during the pandemic and asked that the college live up to their FOI obligations.

Significant Charter of Human Rights and Freedom Case for Freedom of Expression and Freedom of Information

Ken Rubin won an unprecedented court action for freedom of information and freedom of expression after a party tried to add Ken Rubin to a commercial court action simply for filing FOI requests. The September 20, 2019 Ontario Superior Court court ruling dismissed with costs adding Rubin as unjust and agreed that freedom of expression is intimately linked to access to information. The spectre of civil liability for simply filing freedom of information requests would have had serious implications for section 2(b) freedom of expression guarantee.

Article: A layperson’s experiences with legal interventions