T-387-01
2003 FCT 681
SNC Lavalin Inc. (Applicant)
v.
The Minister for International Co-operation and The Minister of Foreign Affairs (Respondents)
Indexed as: SNC Lavalin Inc. v. Canada (Minister for International Cooperation) (T.D.)
Trial Division, Gibson J.--Ottawa, April 8 and May 30, 2003.
Access to Information -- Decision by CIDA to disclose information re: Comprehensive Audit of River Nile Protection and Development Project -- Access to Information Act, s. 44(1) review application -- Nature of applicant's business -- CIDA objectives -- Whether applicant entitled to s. 19 disclosure exemption, whether having discharged s. 20 burden -- Basic principles established by case law -- Conclusion of Layden-Stevenson J. in H.J. Heinz Co. of Canada Ltd. v. Canada disagreed with -- S. 19 mandatory exemption does not apply to s. 44 proceedings -- Applicant failing to address restrictive wording of s. 27 -- Court unwilling to read words into s. 28(1) -- Provision for independent review of proposed disclosure mere "fairness" adjunct to Act's purpose to facilitate access to government information -- F.C.A. decision in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) not followed as issue there initially raised before F.C.A., not fully argued -- Affidavit not supporting exemption under s. 20(1), (c), (d) as using conditional language since insufficient to show harm might result from disclosure -- Applicant sophisticated corporation experienced in partnering with Government on overseas projects, knew of Government's commitment to giving public access to information in its possession.
This was an application by a third party under subsection 44(1) of the Access to Information Act for review of a decision of the Canadian International Development Agency (CIDA) to disclose records relating to the Comprehensive Audit of the River Nile Protection and Development Project. Also sought was an order that these documents were exempt from disclosure or further severing the records to be disclosed to requestor.
SNC Lavalin is an enormous engineering construction enterprise, maintaining offices across Canada and in some 30 foreign countries, including Egypt. Its services extend to system integrations and public-private partnerships. It becomes involved in what are known as BOOT (build, own, operate and transfer) projects. Phase ll of the River Nile undertaking was just such a project. The engineering construction industry, in which SNC competes, is global in nature.
CIDA, for which the Minister of International Cooperation is responsible to Parliament, assists developing countries to achieve sustainable economic and social development and provides humanitarian assistance to promote social justice, international stability and long-term economic relationships all to benefit the global community.
Section 19 prohibits disclosure of any record containing personal information with certain exceptions. Section 20 prohibits disclosure of certain third party information. Section 27 provides for notices to a third party of requests for information, and section 28 permits a third party to make representations.
The issues were: (1) whether SNC can claim an exemption under Act, section 19; and (2) whether it has discharged the section 20 burden.
The basic principles were reviewed by Layden-Stevenson J. in her recent decision in H.J. Heinz Co. of Canada Ltd. v. Canada. Exceptions to the public right of access to information contained in records under government control should be limited and specific. Access ought not to be frustrated by the courts except in the clearest of circumstances. The party resisting disclosure bears a heavy burden of persuasion. In reviewing exemptions under subsection 20(1), balance of probabilities is the relevant standard. A Trial Division review is on a de novo basis.
Held, the application should be denied.
The Court could not agree with the conclusion arrived at by Layden-Stevenson J. in H.J. Heinz, which was to the effect that the mandatory exemption in section 19 applies to section 44 proceedings.
It was urged for the Ministers that, if sections 27 and 28 were interpreted as providing a third party with an opportunity of presenting representations beyond the scope of section 20 exemptions, the result would be anomalous in that no equivalent opportunity for a third party would exist if the information request fell within the scope of another mandatory exemption such as that provided by sections 13, 19 or 24, although Parliament could have, by broadening sections 27 and 28, achieved the same result as that provided for in the case of a section 20 mandatory exemption. Applicant's arguments failed to satisfactorily address the clearly restrictive wording of section 27 and the somewhat anomalous preferred position of information providers whose information might fall within the scope of any other mandatory exemption. The Ministers made a strong case for limiting the scope of the anomalous preferred position. This issue remains to be definitively addressed.
To read the words of subsection 28(1) as conferring on a third party a right to make representations beyond the scope of exemptions provided by section 20 would require the reading in of words into that provision. Given that the purpose of the Act is to facilitate access to government information and that the provision for independent review of proposed disclosure is nothing more than a "fairness" adjunct to that purpose, the entire context of the Act and the rather ambiguous tenor of the grammatical and ordinary sense of the words of subsections 27(1) and 28(1), it had to be concluded that applicant was not entitled to seek exemption for the records here at issue by virtue of section 19. While this issue did, indeed, come before the Federal Court of Appeal in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services), it had not been addressed before the Motions Judge and was not fully argued on appeal. For that reason, the opinion of Sexton J.A. in that case should not be regarded as one that had to be followed. This Court was satisfied that no exemption pursuant to section 19--beyond those originally proposed by respondents and somewhat extended following hearing of the application--were warranted.
In support of an exemption under paragraphs 20(1)(b), (c) and (d), an affidavit was filed in which it was attested that the information had always been considered by applicant as confidential and consistently so treated and that its disclosure might well result in material financial loss to applicant or prejudice its competitive position. It could also interfere with its contractual or other negotiations. Even so, as a sophisticated organization having extensive experience partnering with the Government of Canada with respect to overseas engineering projects, applicant would have made this information available to the Government well knowing the Government's commitment to public access to information in its possession. As to the applicability of paragraph 20(1)(b), the Court was satisfied that certain of the information was financial in nature, confidential so far as applicant was concerned and was furnished to CIDA by applicant. It was consistently treated by applicant as confidential. Yet there was nothing to support the conclusion that the information was confidential by an objective standard, taking into account its substance and the purposes for which and the conditions under which it was provided.
Turning to paragraph 20(1)(c), the affidavit dealt with prejudice and reasonable expectation of loss in conditional language. The use of such conditional language was critical, for it is insufficient to merely establish that harm might result from disclosure. The same was true in regard to paragraph 20(1)(d). Applicant's evidence had failed to discharge the burden imposed by the statute.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 3 "third party", 13 (as am. by S.C. 2000, c. 7, s. 21), 19, 20, 24, 27, 28, 44(1).
| Privacy Act, R.S.C., 1985, c. P-21, ss. 3 "personal information", 8 (as am. by S.C. 1994, c. 35, s. 39; 2000, c. 7, s. 26). |
cases judicially considered
applied:
H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2003] 4 F.C. 3 (T.D.) (as to basic principles); Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.); Bristol-Myers Squibb Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 138; 24 C.P.R. (4th) 417; 303 N.R. 63 (F.C.A.).
not followed:
H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2003] 4 F.C. (T.D.) (as to conclusion Access to Information Act, s. 19 mandatory exemption applies to s. 44 proceedings); Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 575 (F.C.A.).
referred to:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1.
authors cited
Canadian International Development Agency. Departmental Plans and Priorities 2001-2002.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
APPLICATION under Access to Information Act, subsection 44(1) for the review of a CIDA decision to disclose information concerning the Comprehensive Audit of the River Nile Protection and Development Project. Application dismissed.
appearances:
Martha A. Healey for applicant.
Christopher M. Rupar for respondents.
solicitors of record:
Ogilvy Renault, Ottawa, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons arise out of an application brought by SNC Lavalin Inc. (the applicant) pursuant to subsection 44(1) of the Access to Information Act1 (the Act). That subsection reads as follows:
44. (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.
The applicant is a "third party" referred to in subsection 44(1), as that expression is defined in section 3 of the Act.
[2]The portions of provisions of the Act that are relevant for the purposes of these reasons are set out in Schedule "A".
[3]By letter dated December 15, 2000, the applicant, as a "third party", was advised that the Access to Information Coordinator for the Canadian International Development Agency (CIDA), presumably operating under the authority of the respondent Ministers, had received a request under the Act to obtain:
Auditors' working papers, including all records used by their auditors and by CIDA in the auditing process, for the Comprehensive Audit (Feb. 99) of the River Nile Protection and Development project. I have read the audit, which found, among other things, problems with project objectives (pp 6-8). By records I mean, within all levels of management and personnel within the department, all briefing notes, correspondence, reports, official minutes of meetings, draft minutes of the same meetings by the actual recording secretaries [sic], memoranda, notations and "sticky noted [sic]," emails and all other records of discussion concerning this project (on paper and electronic).2
and proposed to disclose certain records in response to the request.
[4]The "records" proposed to be disclosed on behalf of the respondents (the records) were made available to the applicant. The applicant made representations to the head of CIDA as to why the records or parts thereof should not be disclosed, as contemplated in subsection 28(1) of the Act. The head of CIDA made a decision to disclose the records, or parts thereof, and gave notice of his or her decision to the applicant, once again as provided in subsection 28(1) of the Act.
[5]This application followed.
RELIEF REQUESTED
[6]In its notice of application, the applicant seeks the following relief:
This application is for:
| 1. An [sic] review by the Federal Court of Canada pursuant to section 44 of the Act of the decision by the Canadian International Development Agency in file A-2000-00009 to disclose parts of records requested under the Act, namely records relating to the Comprehensive Audit of the River Nile Protection and Development Project; |
| 2. An order providing that the documents are exempt from disclosure or in the alternative, an order further severing the records to be disclosed to the requestor [sic] under the Act; |
| 3. Costs including all professional disbursements and applicable GST; and |
| 4. Such further and other orders as Counsel may request and this Honourable Court may deem just or appropriate.3 |
STATUTORY SCHEME AND A CONFIDENTIALITY ORDER
[7]The provisions of the Act relied on by the applicant for exemption from disclosure or, in the alternative, further severance, are paragraphs 20(1)(b), (c) and (d) and section 19 of the Act, as set out in Schedule "A". Following the hearing of this application, the respondent Ministers agreed to further severance pursuant to section 19 of the Act, but not to a degree that renders this application moot.
[8]On motion on behalf of the applicant, a confidentiality order issued on this application. In the result, the records at issue and the affidavits filed on behalf of the applicant and the respondent Ministers are held in confidence by the Court and do not appear on the public version of the records of the parties.
THE PARTIES
[9]The applicant is described in the public version of the confidential applicant's record in the following terms:
SNC is a global engineering construction company with offices across Canada and in over 30 other countries. One of SNC's offices is located in Cairo, Egypt. SNC is currently engaged in projects in approximately 100 countries. SNC provides engineering, procurement, construction, project management and project financing services to a variety of industry sectors including chemicals and petroleum, mining and metallurgy, pharmaceuticals, agri-food, infrastructure and building, power, mass transit, environment, defence and telecommunications.
SNC offers innovative stand-alone services in areas including system integrations and public-private partnerships. Within its system integration services, SNC is able to act as a prime contractor, program manager and system integrator for large and complex projects.
In terms of public/private partnerships, SNC becomes involved in what are known as "BOOT" and "BOT" projects. A BOOT (or build, own, operate and transfer) project is one in which SNC builds, owns and operates the project for a period of time and then transfers it to another party. A BOT (or build, own and transfer) project is one that SNC will build and own but then transfer without ever having operated the project. Phase II of the RNPD [the River Nile Protection and Development project, the project to which the requested records relate] project was a BOOT project.
The engineering construction industry in which SNC competes is global in nature.4
[10]The Minister of International Cooperation is the Minister responsible to Parliament for the Canadian International Development Agency.5 In the Minister's message forming part of CIDA's Departmental Plans and Priorities 2001-2002, CIDA is described as the "lead agency in Canada's international-assistance endeavours". In the same document, under the heading "Mandate and Objectives", the following appears:
The three goals of Canadian foreign policy, as outlined in the 1995 Government Statement Canada in the World, are the promotion of prosperity, the protection of Canadian and global security, and the projection of Canadian values. Within this foreign policy context, CIDA's mandate is to support sustainable development in developing countries, in order to reduce poverty and to contribute to a more secure, equitable and prosperous world. CIDA also has a mandate to support democratic development and economic liberalization in the Countries in Transition.
In support of its mission, CIDA seeks to attain the following twofold objective:
| · to facilitate the efforts of the peoples of developing countries and Countries in Transition to achieve sustainable economic and social development in accordance with their needs and environments, by co-operating with them in development activities; and |
| · to provide humanitarian assistance thereby contributing to Canada's political and economic interests abroad in promoting social justice, international stability and long-term economic relationships, for the benefit of the global community. [Footnotes omitted.] |
[11]The foregoing would appear to highlight CIDA's role in Canadian foreign policy and thus, its relationship with the Minister of Foreign Affairs, the other of the respondent Ministers.
THE ISSUES
[12]In the public version of the respondent Ministers' confidential application record, the issues are described more broadly than in the equivalent record filed on behalf of the applicant. The issues as described on behalf of the respondent Ministers are in the following terms: first, whether the applicant can claim an exemption pursuant to section 19 of the Act; and secondly, whether the applicant has met the burden placed on it in respect of the exemption claimed pursuant to section 20 of the Act. I would add a third issue as a subset of the respondent Ministers' first issue. That third issue is: if the applicant can claim an exemption pursuant to section 19 of the Act, has it met the burden placed on it in respect of that claimed exemption?
ANALYSIS
| (a) Basic Principles |
[13]In H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General),6 Justice Layden-Stevenson wrote at paragraph 9:
I begin with a review of basic principles. Subsection 2(1) of the Act contains its purpose, which is to provide the public with a right of access to information in records under the control of the government. Exceptions to that right of access should be limited and specific: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) . . .; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 . . . . Public access ought not be frustrated by the courts except in the clearest of circumstances. It is a heavy burden of persuasion that rests upon the party resisting disclosure: Maislin Industries Limited v. Minister of Industry, Trade and Commerce, [1984] 1 F.C. 939 (T.D.) . . .; Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) . . .; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.). The standard of proof to be applied in reviewing exemptions under subsection 20(1) of the Act is that of a balance of probabilities: Northern Cruiser Co. v. Canada, [1995] F.C.J. No. 1168, (1995), 99 F.T.R. 320 n. (F.C.A.).
I adopt the foregoing summary as my own. I would add only one other principle: a review by this Court on an application such as this of a decision to release records to a requester is a review de novo.7
| (b) The right of the applicant to claim an exemption under section 19 of the Act |
[14]In her reasons in H.J. Heinz Co., supra, Justice Layden-Stevenson examines this issue at some length. She notes [at paragraph 22]: "the position of the Minister has been less than consistent" on this issue. That this is true was, I am satisfied, implicitly acknowledged before me by counsel for the respondent Ministers. That being said, counsel presented a reasoned and thoughtful argument on the issue before me, such that counsel for the applicant requested leave to file written reply submissions on the issue. I granted leave, received written reply submissions and have taken them into account.
[15]Justice Layden-Stevenson concludes in H.J. Heinz Co. that the mandatory exemption in section 19 of the Act applies in section 44 proceedings, where relevant to the proposed disclosure. For ease of reference, and to avoid again referring to the range of decisions on this issue from this Court at both the trial and appeal level, paragraphs 22 to 27 of Justice Layden-Stevenson's reasons are set out in full in Schedule "B" to these reasons.
[16]With great respect, for the reasons that follow, I reach a different conclusion than did Justice Layden-Stevenson.
[17]In Bristol-Myers Squibb Co. v. Canada (Attorney General),8 Justice Evans, for the Court, wrote at paragraphs 12 and 13:
The starting point for statutory interpretation in Canada is the following familiar extract from Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87:
| Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. |
This holistic approach to the interpretation of legislation, including, as here, subordinate legislation, requires a court to attribute the meaning that provides the best fit with both the text and the context of the provision in question. Neither can be ignored, although the clearer the "ordinary meaning" of the text, the more compelling the contextual considerations must be in order to warrant a different reading of it, especially when that involves adding words to those used by the legislator.
While the foregoing was not cited before me, the same quotation from Driedger [Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983] was relied on by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re)9 which in turn was relied on on the same issue by Justice Layden-Stevenson in H.J. Heinz Co., supra, at paragraph 27 and H.J. Heinz was before me. I am satisfied that the position enunciated by Justice Evans is beyond dispute.
[18]Subsection 27(1) of the Act, as set out in Schedule "A" to these reasons, requires the head of a government institution, subject to subsection (2) of that section, to provide written notice to a third party such as the applicant where a requester seeks access to a record or records that is or are, in the reasonable belief of the head of the government institution, within the scope of the mandatory exemptions described in subsection 20(1) of the Act. The exception provided in subsection 27(2) is not applicable on the facts of this matter. Of particular significance is the fact that the Act reflects no equivalent obligation on the head of a government institution where a record is requested that might be considered by the head of the institution to be the subject of any other mandatory exemption provided in the Act. For example, where access is sought in relation to information obtained in confidence (section 13 [as am. by S.C. 2000, c. 7, s. 21] of the Act), personal information (section 19 of the Act), or statutorily restricted information (section 24 of the Act), no equivalent obligation to notify a third party and to provide an opportunity to make representations (section 28 of the Act), is provided.
[19]Thus, unless the opportunity to make representations provided by section 28 of the Act is restricted to representations as to the grounds for exemption set out in section 20 of the Act, for example, by representations related to privacy considerations under section 19 of the Act, a third party to whom notice is given as required by section 27 of the Act would be provided with an opportunity to make representations as to exemptions beyond the scope of section 20 in circumstances where no equivalent opportunity to make representations would be extended to a third party in relation to a record that might fall within a mandatory exemption such as is provided by sections 13, 19 or 24.
[20]Counsel for the respondent Ministers urged before me that, if sections 27 and 28 of the Act were interpreted to provide a third party with an opportunity to make representations beyond the scope of section 20 exemptions, an anomalous result would flow because no equivalent opportunity to make representations would exist in favour of a third party affected by a request for information falling within the scope of another mandatory exemption such as that provided by sections 13, 19 or 24 of the Act, when it was clearly open to Parliament, by a relatively simple broadening of sections 27 and 28, to achieve a parallel result to that provided in respect of a mandatory exemption under section 20.
[21]Counsel for the applicant provided, in written supplementary submissions, compelling argument as to why sections 27 and 28 should not be read as restricting the right of a third party to make representations to issues arising under section 20. That being said, the applicant's argument fails to address, at least to my satisfaction, the issue of the clearly restrictive terminology of section 27 and the somewhat, at least in my view, anomalous preferred position of information providers whose information might fall within the scope of section 20 compared to those whose information might fall within the scope of any other mandatory exemption. I am satisfied that a strong case can be made, and was made before me on behalf of the respondent Ministers, to limit the scope of the anomalous preferred position.
[22]Apart from the result in some of the cases cited by Justice Layden-Stevenson in the paragraphs from her reasons in H.J. Heinz Co., supra, that are set out in Schedule "B" to these reasons, and Justice Layden-Stevenson equally cites cases that are supportive of a narrow interpretation of the right provided by subsection 28(1) to a third party to make representations, I am satisfied that the issue has not yet been definitively addressed.
[23]As noted in the quotation above from Bristol-Myers Squibb Co., supra, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. To read the words of subsection 28(1) of the Act to confer on a third party a right to make representations beyond the scope of exemptions provided by section 20 of the Act would, in my view, require the "reading in" of words into that subsection. The words to be read in would follow the words "representations to the head of the institution as to why the record or the part thereof should not be disclosed" and would be the following: "by reason of any mandatory (or perhaps mandatory or discretionary) exempting provision of this Act." Without the addition of those words, a more extensive lack of parallelism would, in my view, be created between circumstances where an exemption is envisaged under section 20, and where an exemption is envisaged under any other mandatory exemption provision of the Act, than is required by a contextual plain-language reading of subsections 27(1) and 28(1).
[24]Given that the purpose of the Act as clearly enunciated by Parliament is to facilitate access to government information, and that, in my view, the provision of independent review of proposed disclosure, is only a "fairness" adjunct to that purpose, and given the entire context of the Act, and the somewhat ambiguous tenor of the grammatical and ordinary sense of the words of subsections 27(1) and 28(1), I find myself compelled to conclude that the applicant was not entitled in representations made pursuant to subsection 28(1), to seek exemption for the records at issue, or any part or parts of those records, by virtue of section 19 of the Act.
[25]In Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services),10 in very brief reasons, the Court of Appeal addressed the issue here under consideration. Justice Sexton, for the Court, wrote [at paragraph 1]:
Counsel for the Crown concedes that s. 44 of the Access to Information Act. . . was not argued before the Motions Judge and for the first time on appeal argues that s. 44 limits the jurisdiction of the Court such that s. 24 cannot be invoked by the party seeking to prevent disclosure. We are unable to interpret s. 44 in this way. [Citation omitted.]
Justice Sexton's brief comments clearly identify that the issue that was fully argued before me by counsel for the respondent Ministers and on behalf of the applicant in written reply submissions was not addressed before the Motions Judge whose decision was before the Court of Appeal. Quite clearly, the issue was raised for the first time in Siemens, supra, before the Court of Appeal and, impliedly at least from the way in which the issue was dealt with in the foregoing quotation, when it was raised before the Court of Appeal, it was not raised with the kind of fulsome argument made before me, particularly with regard to the interrelationship of sections 27 and 28 with section 44 of the Act.
[26]With great respect, I find I cannot conclude that the foregoing brief reference by Justice Sexton in Siemens is binding on me. Justice Layden-Stevenson, in the portion of her reasons from H.J. Heinz Co., supra, quoted in Schedule "B" to these reasons, acknowledged the foregoing passage from Siemens. For ease of reference, I quote here again one paragraph from Justice Layden-Stevenson's reasons [at paragraph 27]:
Based on the reasoning in Siemens, it seems to me that if the mandatory exemption provided in section 24 of the Act is available to a third party, so too must be the mandatory exemption provided in section 19. To hold otherwise, in my view, would yield an irrational and illogical result and one that is contrary to the principles of statutory interpretation articulated in Rizzo and Rizzo Shoes Ltd. (Re). . . . [Citation omitted.]
Once again with great respect, I reach the opposite conclusion. Based on the principles of statutory interpretation quoted above and, I acknowledge, also relied on by my colleague, I feel compelled to conclude that the applicant simply cannot rely on the mandatory exemption provided for in section 19 of the Act in responding to the notice provided to it in this matter under section 27 of the Act.
[27]On the basis of the foregoing analysis, ignoring the representations on behalf of the applicant relating to section 19 of the Act except to the extent of acknowledging that such representations were in fact made and responded to, but considering the records at issue on their face, the relevant elements of the definition "personal information" in section 3 of the Privacy Act11 and section 8 [as am. by S.C. 1994, c. 35, s. 39; 2000, c. 7, s. 26] of that Act, and having regard to the basic principles underlying consideration of applications such as this under the Act as quoted earlier in these reasons from H.J. Heinz Co., supra, I am satisfied that no exemptions pursuant to section 19 of the Act beyond those originally proposed on behalf of the respondent Ministers and somewhat extended following the hearing of this application and before the date of these reasons, are warranted.
| (c) Did the applicant meet the burden on it to justify exemption of all or a portion of the records at issue pursuant to section 20 of the Act? |
[28]I return to the basic principles as reflected in paragraph 9 of the reasons in H.J. Heinz Co., supra, quoted earlier in these reasons. I paraphrase: the basic purpose of the Access Act is to provide the public with a right of access to information in records under the control of the Government. Exceptions to that right of access should be limited and specific. Public access ought not be frustrated by the courts except in the clearest of circumstances. It is a heavy burden of persuasion that rests upon the party resisting disclosure, in this case, the applicant.
[29]In support of exemption from disclosure by virtue of paragraphs 20(1)(b), (c) and (d), the applicant has filed an affidavit of an individual who is highly qualified to speak to the implications of disclosure of information in relation to the River Nile Protection and Development Project supplied to CIDA by the applicant. The affiant attests that such information has at all times been considered by the applicant to be "confidential information" that it has "treated [such information] consistently in a confidential manner", and that disclosure of some of such information could reasonably be expected to result in material financial loss to the applicant or could reasonably be expected to prejudice the competitive position of the applicant. Further, the affiant attests, disclosure of such information could reasonably be expected to interfere with contractual or other negotiations of the applicant.
[30]The applicant's affiant's qualifications are impressive based upon his education, his personal experience and his professional experience. That being said, it was not in dispute before me that the applicant is a sophisticated organization with extensive experience with government in Canada and more particularly in partnering with the Government of Canada in relation to overseas engineering projects. It made available to the government information reflected in the records at issue in the course of its ordinary dealings with Government and presumably with full knowledge of the commitment of the Government of Canada to public access to information in its possession.
[31]The foregoing being said, exemptions provided by section 20 of the Act are mandatory. At the same time they are forward looking and thus the harm contemplated by them is, of necessity, not realized but rather potential. The qualifications of the applicant's affiant tend to raise the potential harm to which he attests toward a reasonable expectation of probable harm and away from merely speculative or possible harm.
[32]For ease of reference, I repeat here the opening words of subsection 20(1) of the Act and paragraphs (b), (c) and (d) of that subsection:
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
. . .
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
[33]In Air Atonabee Ltd. v. Canada (Minister of Transport), supra, Justice MacKay wrote, at pages 197-198:
In all there are six criteria set out in the two sections paragraphs of s. 20(1) for assessing the records in question. The authorities relied upon by both counsel in relation to s. 20(1)(b), and others, have made clear that exemption from disclosure under that paragraph requires that the information in question meet all four of the following criteria: that it be:
| (1) financial, commercial, scientific or technical information, |
| (2) confidential information, |
| (3) supplied to a government institution by a third party, and |
| (4) treated consistently in a confidential manner by the third party. |
In the case of s. 20(1)(c) there are two circumstances under either of which, as alternatives to the criteria in other paragraphs of s. 20(1) and to each other, information is exempt from disclosure, that is:
| (1) where the disclosure of the information could reasonably be expected to result in material financial loss or gain to a third party, or |
| (2) where the disclosure of the information could reasonably be expected to prejudice the competitive position of a third party. |
Both of these latter circumstances require a reasonable expectation of probable harm . . . and speculation or mere possibility of harm does not meet that standard. . . . [Citations omitted.]
[34]I turn first to the applicability of paragraph 20(1)(b) of the Act. Based upon a review of the affidavit filed on behalf of the applicant and of the records at issue, I am satisfied that certain of the information reflected in the records proposed to be disclosed is of a financial nature. I am further satisfied that certain of the information is confidential information in the eyes of the applicant and that such information was supplied to CIDA by the applicant. Finally, I am also satisfied that the information in the records at issue supplied to CIDA by the applicant was treated consistently in a confidential manner by the applicant.
[35]That being said, there is nothing before me that I am satisfied should lead me to the conclusion that information in the records at issue that was supplied to CIDA by the applicant is confidential by an objective standard, taking into account its substance and the purposes for which and the conditions under which it was prepared or provided. I find nothing on the record to indicate that information in the records at issue was ever considered by CIDA to be confidential information although undoubtedly the applicant would have had it so treated by CIDA. Further, there is nothing in the record before me that would indicate that the applicant, at any time before it was consulted pursuant to section 27 of the Act, communicated to the respondent its view that the information supplied by it to CIDA was confidential information, this notwithstanding the sophistication of the applicant and its experience to which I have earlier referred.
[36]Turning to paragraph 20(1)(c) of the Act and the criteria thereunder as noted in Air Atonabee, as quoted above, the applicant's affiant attests, albeit, often in conditional language, to a reasonable expectation of financial loss and prejudice to the competitive position of the applicant if the records at issue were disclosed. The conditional language used is critical. It is simply not sufficient for the applicant to establish that harm might result from disclosure. Speculation, no matter how well informed, does not meet the standard of reasonable expectation of material financial loss or prejudice to the applicant's competitive position.
[37]Finally, turning to paragraph 20(1)(d) of the Act, once again the applicant's affiant attests to the impact that disclosure of the records at issue could reasonably be expected to have regarding contractual or other negotiations of the applicant. Once again, and not unreasonably, the applicant's affiant's attestation is largely in conditional language.
[38]Also once again, I return to the basic principles reflected in H.J. Heinz Co., supra. Public access ought not to be frustrated by the Court except in the clearest of circumstances. It is a heavy burden of persuasion that rests upon the party resisting disclosure. I simply am not satisfied that that burden has been met by the aplicant's evidence under paragraph 20(1)(d) of the Act.
[39]On the basis of the foregoing analysis, I am simply not satisfied that this is one of the "clearest of circumstances" where public access ought to be frustrated by this Court on the basis of any of paragraphs 20(1)(b) to (d) of the Act. Put another way, I cannot conclude that, despite the qualifications of the applicant's affiant and the persuasive nature of his affidavit, the heavy burden of persuasion that rests upon the applicant has, on the basis of a thorough review of all of the material before the Court on this application, been met.
CONCLUSION
[40]For the foregoing reasons, this application under section 44 of the Access to Information Act will be dismissed.
COSTS
[41]As a matter of first impression, both parties having requested costs of this application, I find nothing that would warrant variation from the general rule that costs, on the ordinary scale, should follow the event. That being said, counsel on both sides requested an opportunity to provide written submissions following release of my reasons and order. The respondent Ministers having been successful, counsel for the respondent Ministers will have ten days from the date of these reasons and my order to serve and file any written submissions on costs that counsel considers appropriate. Thereafter, counsel for the applicant will have seven days to serve and file written submissions and counsel for the respondent Ministers will have four days from the expiration of the time provided for submissions on behalf of the applicant to serve and file any responding submissions. Following consideration of any written submissions as to costs that are filed, a supplementary order as to costs will issue.
1 R.S.C., 1985, c. A-1.
2 Public version of the confidential applicant's record, p. 18, modified in grammatical detail to correspond to the version in the confidential applicant's record.
3 Public version of the confidential applicant's record, p. 3.
4 Public version of the confidential applicant's record, pp. 19-20; footnotes to the confidential applicant's record omitted.
5 Canadian International Development Agency. Departmental Plans and Priorities 2001-2002; not cited before me.
6 [2003] 4 F.C. 3 (T.D.); notice of appeal filed March 27, 2003.
7 Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), at p. 196.
8 (2003), 226 D.L.R. (4th) 138 (F.C.A.).
9 [1998] 1 S.C.R. 27, at para. 21.
10 (2002), 21 C.P.R. (4th) 575 (F.C.A.).
11 R.S.C., 1985, P-21.
SCHEDULE "A"
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.
. . .
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.
(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.
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
. . .
27. (1) Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1)(b) that was supplied by a third party, or
(c) information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.
. . .
28. (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,
(a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and
(b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.
(2) Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally.
(3) A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Act or a part thereof shall include
(a) a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and
(b) a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.
(4) Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.
SCHEDULE "B"
[H.J. Heinz Co. of Canada Ltd. v. Canada
(Attorney General), [2003] 4 F.C. 3 (T.D.),
at paragraphs 22-27]
Regarding the application of the section 19 mandatory exemption, the position of the Minister has been less than consistent. In Maislin, Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (Société Gamma) and Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (Air Atonabee), all of which are relied on by the respondent here, albeit in other respects, the Minister conceded that section 19 information was exempt. While it may be said that Maislin and Air Atonabee preceded Saint John Shipbuilding, Société Gamma did not. The respondent relies on the following passage from Saint John Shipbuilding:
| Two minor points should be mentioned in closing. First, the appellant suggested that the material ordered to be released was in some respects different from what had been requested; the short answer to that is that the appellant's interest, as third party intervenor in a request for information, is limited to those matters set out in subsection 20(1), and it has no status to object that the government may have given more or less than it was asked for. Secondly, the appellant urges that, because this is a defence contract, the Court should be specially reticent in releasing information. On this we can do no better than to quote the Judge: |
| Under s. 15 of the Act the Respondent has the discretionary authority to refuse to disclose any record if its release could reasonably be expected to be injurious to the defence of Canada. The Respondent does not purport to act under that section of the Act but under s. 20. I agree that my review is limited to the considerations set out in s. 20 of the Act and that the matter of national security is irrelevant to this hearing. |
It is submitted that from this passage emerges a proposition that, when dealing with section 20 of the Act, the other mandatory exemptions of the Act are to be ignored. With respect, I cannot subscribe to such an interpretation nor do I believe that the Court intended any such thing. The comments above must be considered in the context in which they were made. First, the remarks were restricted to the appellant's argument that the released material was not responsive to the request. In that context (and not in relation to mandatory exemptions contained in the Act), it appears that the third party is limited to those matters set out in subsection 20(1) and cannot be heard to complain that the government gave more or less than what was requested. I do not view the excerpt, when viewed in its proper context, as a blanket prohibition against the use of the other mandatory exclusions of the Act merely because section 20 is invoked. I am reinforced in my view when regard is had to Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2001), 213 F.T.R. 125, aff'd. (2002), 21 C.P.R. (4th) 575 (F.C.A.) (Siemens) about which I will have more to say in short order. Second, and to the extent that it is necessary to do so, I note that the comments regarding section 15 of the Act relate to a discretionary exemption rather than a mandatory one. The procedural implications relative to the distinction between mandatory and discretionary exemptions have been delineated above.
Additionally, while the notice provision in section 27 refers specifically to the provisions of section 20, there is no such reference in section 28. It provides that the third party may make "representations" as to why the record or the part thereof should not be disclosed and there are no stated restrictions as to the representations available to the third party provided, of course, they are relevant to the issue of disclosure. Further, in Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185, Campbell J. interpreted the excerpt from Saint John Shipbuilding as follows:
| I read this passage as authority for the proposition that a s. 44 review is limited to the information proposed to be released. I do not believe that the passage can be extended to restrict the arguments on fact and law that can be made regarding the proposed release of particular information. |
It is noteworthy that in both Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 148 N.R. 147 (F.C.A.) and Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 251 N.R. 220 (F.C.A.), the Court of Appeal entertained arguments, by a third party, that were outside the ambit of subsection 20(1). Finally, in Siemens, McKeown J. determined that the Minister's proposed release of documents requested under the Act was prohibited by subsection 24(1) of the Act. Subsection 24(1) is a mandatory exemption regarding the disclosure of information that is restricted by or pursuant to any provision set out in Schedule II of the Act. Section 30 of the Defence Production Act, R.S.C., 1985, c. D-1 is incorporated by reference in Schedule II of the Act and that section prohibits disclosure of information with respect to an individual business that has been obtained under or by virtue of the Defence Production Act without the consent of the individual carrying on business. The bottom line is that McKeown J. determined that section 30 of the Defence Production Act constitutes a statutory provision designated under the statutory prohibition exemption set out in section 24 of the Act. In the result, the information could not be disclosed. I note in passing that the subsection 19(1) information was considered, by the Minister, to be exempt.
On appeal, the trial decision in Siemens was affirmed. The argument advanced was that section 44 (review of the decision to disclose) of the Act limits the jurisdiction of the court such that section 24 (mandatory exemption) cannot be invoked to prevent disclosure. In summarily dismissing the appeal, the Court of Appeal stated, "We are unable to interpret s. 44 in this way".
Based on the reasoning in Siemens, it seems to me that if the mandatory exemption provided in section 24 of the Act is available to a third party, so too must be the mandatory exemption provided for in section 19. To hold otherwise, in my view, would yield an irrational and illogical result and one that is contrary to the principles of statutory interpretation articulated in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and subsequent authorities. I therefore conclude, for the reasons stated, that the mandatory exemption in section 19 of the Act applies in section 44 proceedings, where relevant to the proposed disclosure.