Décision

[1]         The Companies ask the Court to order the AG to produce all data available (the "datasets") from cycles one to eight of two large-scale longitudinal surveys (the "Surveys") conducted starting in 1994: the National Longitudinal Survey on Children and Youth (the "NLSCY") and the National Population Health Survey (the "NPHS")[1].  A longitudinal survey is one that tracks the same sample population over time, some 30,000 individuals in these cases.  The Surveys cover sixteen years divided into eight two-year cycles.  As might be expected, it is Statistics Canada ("StatsCan") that possesses and controls the datasets.

[2]         The AG has provided the Companies with the public use microdata files ("PMF") for the first three cycles of each Survey but insists that it does not have the right to provide the datasets, i.e., "non-public use files".  PMF contain edited information by person sampled, with the editing being done in large part to maintain the confidentiality and anonymity of the individuals participating in the survey ("anonymity").  PMF are made available to the public in general, whereas the datasets are strictly controlled by StatsCan in order to comply with its obligations respecting anonymity under the Statistics Act[2] (the "Act"). 

[3]         Unlike for the first three cycles, PMFs were not created for cycles 4-8, since StatsCan feared that anonymity could be jeopardized by doing so.  Consequently, the Companies presently have no information at all on those cycles to complement what they received for the first three.

[4]         The AG argues that the Act prohibits StatsCan from divulging the datasets, basing its argument on sections 17 and 18 of that law.  The relevant portions of those provisions read as follows:

17.(1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12 and except for the purposes of a prosecution under this Act subject to this section,

(a)  no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; and

(b)  no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization.

(2) The Chief Statistician may, by order, authorize the following information to be disclosed:

…

(d)    information available to the public under any statutory or other law;

…

18.(1)  Except for the purposes of a prosecution under this Act, any return made to Statistics Canada pursuant to this Act and any copy of the return in the possession of the respondent is privileged and shall not be used as evidence in any proceedings whatever. 

(2)  No person sworn under section 6 shall by an order of any court, tribunal or other body be required in any proceedings whatever to give oral testimony or to produce any return, document or record with respect to any information obtained in the course of administering this Act.

(3)  This section applies in respect of any information that Statistics Canada is prohibited by this Act from disclosing or that may only be disclosed pursuant to an authorization under subsection 17(2).

[5]         The Companies argue that the Act does not impede their right to receive the datasets.  In their submission, sub-paragraph 17(2)(d), read with sub-paragraphs 8(2)(c) or (d) of the Privacy Act[3], creates an exception in their favour.  Whether or not this is so constitutes the principal question the Court must decide in this motion. 

[6]         The relevant provisions of the Privacy Act read as follows:

8.(2)   Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

…

(c)     for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with the rules of court relating to the production of information;

(d)     to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada;

…

[7]         It is relevant to note that, even accepting the AG's interpretation of the Act, the Companies are not blocked from all access to the datasets.  StatsCan, after all, exists for the purpose of making data available to researchers and it has developed three possible ways for accessing its data that, in its judgment, protect anonymity.  Those three access possibilities (the "Options") are the following:

a.      Research Data Centre: a researcher is allowed access to and use of the datasets, minus the names and addresses of the sampled individuals, within one of StatsCan's research centres, subject to anonymity verification;

b.     Remote Access: a researcher sends his analysis programme to StatsCan who will run it for him and return the results to him, subject to anonymity verification;

c.      Custom Tabulation: a researcher explains the specifications he wishes to apply and StatsCan creates the appropriate programme and runs it for him and returns the results to him, subject to anonymity verification.

[8]         In each case an employee of StatsCan "vets" the information collected before the researcher is allowed to receive and use it to ensure that anonymity is not put at risk.  For the same reason, StatsCan policy prohibits divulging data cells that contain five or fewer responses on a question. 

[9]         The Companies plead that none of the Options is sufficient for their experts' needs because of the restrictions imposed by StatsCan.  They assert that any analysis that their experts would try to do would be tainted for that reason, particularly in light of the exclusion of certain small data cells, as described above.

ANALYSIS

[10]      The Court's first reaction is to query what jurisdiction it has in this matter.  According to paragraph 17(2) of the Act, the provision on which the Companies rely, the decision to authorize the disclosure of the datasets belongs exclusively to the Chief Statistician.  Even accepting for the sake of discussion (but without deciding the question) the Companies' argument that the datasets would be "information available to the public" under the Privacy Act, it is up to the Chief Statistician to authorize them to be disclosed or not. 

[11]      Given that, the most that this Court can do would be to render an order compelling the production of the datasets, thus allowing the Companies to invoke sub-paragraph 8(2)(c) of the Privacy Act in any request to the Chief Statistician[4].  To do that, we would need to determine the relevance of the datasets to these files and the right of the Companies under "normal" circumstances to receive copies of them. 

[12]      We have no problem on either point.  The AG has previously communicated the PMFs of each Survey to the other parties in the context of the parties' mutual undertaking in these files to exchange all relevant documents in their possession.  Thus, the relevance of the datasets, which are in a sense the continuation and completion of the PMFs, is established.  The Companies' right to receive them follows logically.

[13]      We will therefore order the AG to take all steps required to produce all datasets from cycles one to eight of the NLSCY and the NPH, and to produce such datasets, subject to any legal restriction governing such production.  Given the terms of the Act and the fact that it is really the Companies who wish to have the datasets disclosed, it would make sense for them, as well as the AG, to apply to the Chief Statistician for the necessary authorization via the exceptions of sub-paragraphs 8(2)(c) and (d) of the Privacy Act.  Nothing prohibits both parties from acting in parallel, even if the language of sub-paragraph 8(2)(d) could imply that the AG alone should make such a request under that provision. 

[14]      In the event that the Chief Statistician does not see his way clear to grant the authorization, the Companies will either have to live with the Options or challenge his decision according to law.  The AG asserted that the sole jurisdiction for such a challenge lies with the Federal Court based on section 18 of the Federal Courts Act[5], the relevant portion of which reads as follows:

  18. (1)   Subject to section 28, the Federal Court has exclusive original jurisdiction

(a)  to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b)  to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

  (2)   …

  (3)   The remedies provided for in subsection (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

[15]      In light of the definition of federal board, commission or other tribunal provided in section 2 of the same law, it is difficult not to conclude that any challenge of the Chief Statistician's decision must proceed before the Federal Court.

[16]      A word on the Options.  The Companies made much of the fact that the Assistant Deputy Minister from StatsCan admitted in her testimony that the policy on not divulging the contents of small data cells could affect the integrity of analysis from a statistical viewpoint.  That said, it is important to note that she answered this question "in the abstract", without specific reference to the questions in the Surveys that are relevant to these actions.  This greatly weakens the usefulness and pertinence of that admission, since we do not know the likelihood that small data cells would exist for the information required by the Companies' experts.

[17]      At the hearing, the AG asserted that there were no more than a handful of very general questions in either Survey that could have any relevance to these files, and this was not contested.  This was not denied by the Companies.

[18]      The chance that, in a survey of some 30,000 people, fewer than five persons would answer such general questions in the same way is negligible.  In other words, the existence of small data cells on points of interest to the parties appears to be a practical impossibility.  This leads to the conclusion that the Options do offer perfectly adequate means to analyze the datasets for the needs of the Companies' experts.

[19]      In support of that conclusion, the Court notes that none of the Companies allege any complaint relating to small data cells from any of their experts concerning the PMFs they have analyzed to date[6] or to any other aspect of the information available from StatsCan.  More conclusively, the Companies make no allegation that the Options are inadequate for their experts' needs.

[20]      In light of all that, the Court cannot avoid sensing that the problem, if one exists at all, is strictly theoretical and does not impact their experts' work in any real way.  This does not mean that the Companies should not have the right to attempt to convince the Chief Statistician to authorize full disclosure of the datasets, but it does underscore that the tools currently at their experts' disposal appear to be perfectly adequate for the job at hand.

[21]      Further to that, in her testimony the Assistant Deputy Minister stated that StatsCan has done a preliminary review of potential requests for access to the datasets by the experts of the Companies and has given conditional approval to them, subject to being apprised of specific details.  The Court feels comfortable in assuming that final approval for professionals of the stature of the Companies' experts will pose no problem. 

[22]      As such, the Court strongly urges the Companies to take advantage of one or more of the Options as soon as possible.  This will allow their experts to finalize their opinions within a reasonable delay, since they are already behind schedule.  If the experts feel that they need access to more, the Companies can make the request and possible challenge in parallel.  The Court will remain open to a request to amend any expert report that should be modified in light of new information obtained pursuant to increased access to the datasets.

BASED ON THESE REASONS, THE COURT:

[23]      GRANTS in part the Companies' Motion to Compel the Defendant in Warranty to Make Production of Necessary Survey Data;

[24]      ORDERS the Attorney General of Canada to take all steps required to produce all datasets from cycles one to eight of the National Longitudinal Survey of Children and Youth and the National Population Health Survey, and to produce such datasets, subject to any legal restriction governing such production;

[25]      Costs to follow suit.