A-161-03
2004 FCA 171
Attorney General of Canada (Appellant)
v.
H.J. Heinz Co. of Canada Ltd. (Respondent)
and
The Information Commissioner of Canada (Intervener)
Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Desjardins, Nadon and Pelletier JJ.A.--Ottawa, January 24 and April 30, 2004.
Access to Information -- Appeal from Federal Court Trial Division decision in Access to Information Act, s. 44 application ordering, on basis of Act, ss. 19, 20, Canadian Food Inspection Agency not disclose certain records requested under Act -- Whether respondent third party could apply for review of government institution decision to disclose documents other than those set out at Act, s. 20(1) -- Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (F.C.A.) holding that third party capable of raising exemptions other than those found in Act, s. 20(1) -- Siemens not distinguishable from present case -- Decision in Siemens not manifestly wrong, should not be overturned on ground reasons not giving sufficient consideration to appellant's argument -- Appeal dismissed.
This was an appeal from a decision of the Federal Court (at that time the Trial Division) allowing in part an application made by the respondent under section 44 of the Access to Information Act and ordering the Canadian Food Inspection Agency, on the basis of sections 19 and 20 of the Act, not to disclose certain records which had been requested under the Act. In ordering the severance of certain passages contained in the records which fell within section 19 of the Act (records containing "personal information" as defined in section 3 of the Privacy Act), the Federal Court relied on Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (F.C.A.) as authority for the proposition that the respondent could invoke exemptions other than those set out in subsection 20(1) of the Act. In SNC Lavalin Inc. v. Canada (Minister for International Cooperation) Gibson J. came to the opposite conclusion, i.e. that a third party on a section 44 application was not entitled to prevent disclosure of documents falling within the ambit of section 19. He was of the view that Siemens was not binding, the issue having been raised for the first time on appeal. At issue was whether the respondent, a third party as defined in the Act, could apply for review, under section 44 of the Act, of a government institution's decision to disclose records other than those which are set out at subsection 20(1) of the Act. Also at issue was whether the Court's decision in Siemens determined the substantive issue in the case at bar and, if so, whether that decision ought to be overturned.
Held, the appeal should be dismissed.
In Siemens, the Court found that a third party could, on a section 44 application, seek to prevent the disclosure of records on the basis of exemptions other than those contained in subsection 20(1). Siemens could not be distinguished from the present case on any ground, including the one that what was at issue in Siemens was not section 19, but section 24. Both sections provide that the head of a government institution must refuse to disclose records which fall within the wording of these sections. The issue before the Court in the case at bar was clearly before the Court in Siemens.
As to whether Siemens should be overturned on the ground that the reasons did not give sufficient consideration to the appellant's argument, only where a prior decision is manifestly wrong (i.e. where the Court overlooked a relevant statutory provision or a case that ought to have been followed) will this Court overrule it. It could not be said that the Court's decision in Siemens was "manifestly wrong".
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 3 "third party", 13 (as am. by S.C. 2000, c. 7, s. 21), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25(2)(c), 27, 28, 30(1)(f), 41, 42, 44, 45, 46, 47, 49, 50, 51.
| Defence Production Act, R.S.C., 1985, c. D-1, s. 30. |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5). |
| Privacy Act, R.S.C., 1985, c. P-21, s. 3 "personal information". |
cases judicially considered
followed:
Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2001), 15 C.P.R. (4th) 470; 213 F.T.R. 125 (F.C.T.D.); affd (2002), 21 C.P.R. (4th) 575 (F.C.A.).
applied:
Miller v. Canada (Attorney General) (2002), 220 D.L.R. (4th) 149; 293 N.R. 391 (F.C.A.).
considered:
SNC Lavalin Inc. v. Canada (Minister for International Cooperation), [2003] 4 F.C. 900; (2003), 25 C.P.R. (4th) 460; 234 F.T.R. 294 (T.D.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 148 D.L.R. (4th) 385; 46 Admin. L.R. (2d) 155; 213 N.R. 161.
referred to:
Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315; 207 N.R. 89 (F.C.A.); Krause v. Canada, [1999] 2 F.C. 476; (1999), 19 C.C.P.B. 179; 236 N.R. 317 (C.A.); Mathew v. Canada, [2004] 1 C.T.C. 115; (2003), 110 C.R.R. (2d) 299; 2003 DTC 5644 (F.C.A.); Wannan v. Canada, [2004] 1 C.T.C. 326; 2003 DTC 5715; (2003), 312 N.R. 247 (F.C.A.); Amado-Cordeiro v. Canada (Minister of Citizenship and Immigration) (2004), 36 Imm. L.R. (3d) 35 (F.C.A.).
APPEAL from a decision of the Federal Court (at that time the Trial Division) ([2003] 4 F.C. 3) allowing in part an application made by the respondent under section 44 of the Access to Information Act and ordering the Canadian Food Inspection Agency, on the basis of sections 19 and 20 of the Act, not to disclose certain records which had been requested under the Act. Appeal dismissed.
appearances:
Christopher M. Rupar for appellant.
Nicholas McHaffie for respondent.
Daniel Brunet and Patricia Boyd for intervener.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Stikeman Elliott LLP, Ottawa, for respondent.
Information Commissioner, Ottawa, for intervener.
The following are the reasons for judgment rendered in English by
[1]Nadon J.A.: This is an appeal from a decision of Madam Justice Layden-Stevenson (the Application Judge) of the Federal Court [at that time the Trial Division] dated February 27, 2003 [[2003] 4 F.C. 3], which allowed, in part, an application made by the respondent under section 44 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Act). The Application Judge ordered the relevant government institution, the Canadian Food Inspection Agency (CFIA), on the basis of sections 19 and 20 of the Act, not to disclose certain records which had been requested under the Act.
[2]At issue before us is whether the respondent, a third party as defined in the Act, may apply for review, under section 44 of the Act, of a government institution's decision to disclose records other than those which are set out at subsection 20(1) of the Act. However, before getting to that issue, we must decide whether our Court's decision in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4th) 575 (F.C.A.), has already determined the substantive issue before us and, if so, whether that decision ought to be overturned.
Legislation
[3]For ease of reference, I reproduce immediately the relevant provisions of the Act:
3. . . .
"third party", in respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution.
. . .
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.
(2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
(3) Where the head of a government institution discloses a record requested under this Act, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests.
(4) For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing.
(5) The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.
(6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference 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.
(2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.
(3) A notice given under subsection (1) shall include
(a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);
(b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and
(c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.
(4) The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Act where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9.
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.
. . .
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.
(2) The head of a government institution who has given notice under paragraph 28(1)(b) or subsection 29(1) that a record requested under this Act or a part thereof will be disclosed shall forthwith on being given notice of an application made under subsection (1) in respect of the disclosure give written notice of the application to the person who requested access to the record.
(3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review.
45. An application made under section 41, 42 or 44 shall be heard and determined in a summary way in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act.
46. Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Court may, in the course of any proceedings before the Court arising from an application under section 41, 42 or 44, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.
47. (1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; or
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Act, does not indicate whether it exists
(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof.
. . .
51. Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.
Background
[4]By letter dated June 16, 2000, CFIA received a request for disclosure of certain records pertaining to the respondent.
[5]By letter dated August 15, 2000, CFIA contacted the respondent, pursuant to section 27 of the Act, requesting written representations as to why the requested records should not be disclosed.
[6]By letter dated September 1, 2000, the respondent, pursuant to section 28 of the Act, submitted representations as to why the records at issue should not be disclosed.
[7]After review of the respondent's written representations, CFIA concluded that the records ought to be disclosed and, by letter dated September 7, 2000, it informed the respondent of its intention to disclose the records, subject to certain redactions.
[8]On September 27, 2000, as a result of CFIA's decision, the respondent commenced judicial review proceedings, pursuant to section 44 of the Act. In its application, the respondent raised a number of issues concerning the application of subsection 20(1) of the Act to the records. Although the application of section 19 to the records was not raised in the application, it was raised by the respondent in its written and oral arguments.
[9]The Application Judge concluded that certain records or parts thereof, which fell within the ambit of subsection 20(1), should be severed. There is no appeal from that part of the decision. However, the Application Judge also concluded that the respondent, a third party, could invoke the exemption set out at section 19 of the Act, i.e. that the respondent could seek to prevent disclosure of records containing "personal information" as defined in section 3 of the Privacy Act, R.S.C., 1985, c. P-21. Accordingly, the Application Judge ordered the severance of certain passages contained in the records which fell within section 19 of the Act. The appeal herein concerns only that part of the Application Judge's decision.
[10]In concluding as she did in respect of the application of section 19 of the Act to the requested records, the Application Judge relied on this Court's decision in Siemens as authority for the proposition that the respondent could, on a section 44 application, invoke exemptions other than those set out in subsection 20(1) of the Act. At paragraphs 26 and 27 of her reasons, she makes her point in the following terms:
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 [at paragraph 1], "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 & 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.
[11]In SNC Lavalin Inc. v. Canada (Minister for International Cooperation), [2003] 4 F.C. 900 (T.D.), Gibson J. came to a conclusion opposite to that reached by the Application Judge. In Gibson J.'s view, a third party, on a section 44 application, was not entitled to prevent disclosure of documents falling within the ambit of section 19 of the Act. At paragraph 24 of his reasons, he opines as follows:
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.
[12]Both the Application Judge's decision and that of our Court in Siemens were before Gibson J. Contrary to the Application Judge, Gibson J. was of the view that he was not bound by Siemens. At paragraphs 25-26, he explains why in the following terms:
In Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services), in very brief reasons, the Court of Appeal addressed the issue here under consideration. Justice Sexton, for the Court, wrote:
| 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.
With great respect, I find I cannot conclude that the foregoing brief reference by Justice Sexton in Siemens is binding on me.
[13]The respondent takes the position, inter alia, that we are bound by Siemens and that that decision is decisive of the issue before us. The appellant, on the other hand, in inviting us to reconsider Siemens, submits that the decision in that case does "not indicate that the full argument regarding the appropriate interpretation of the notice scheme set out in the Access Act was considered by the Court" (see paragraph 48 of the appellant's memorandum of fact and law).
[14]Before turning to the question of whether Siemens has determined the substantive issue before us and whether we ought to overturn it, it will be helpful to set out the submissions advanced by the parties in support of their respective positions concerning both the substantive and the Siemens issues. It will also be helpful to give a brief outline of the relevant provisions of the Act.
Submissions of the parties
| The Appellant |
[15]The appellant submits that by the Act, Parliament has provided for a notice process to third parties when their business or scientific interests are at issue, but has provided for no notice process in respect of the other exemptions enumerated in the Act, whether they be mandatory or discretionary. Further, Parliament has made no provision for third parties who have been notified to raise exemptions other than those found in subsection 20(1) of the Act.
[16]The appellant therefore submits that the Application Judge erred in law when she concluded that the respondent could, on a section 44 application, seek review of disclosure of documents not within the purview of subsection 20(1) of the Act.
[17]In support of his position, the appellant submits that the general scheme of the Act provides for access to information and that the matter is essentially one between the government institution, which has the responsibility under the Act to invoke and apply the relevant exemptions, and the person making the request for documents who seeks to enforce his right to access. Only when records fall within the purview of section 20 of the Act do the notice provisions of section 27 come into play. Only in such a situation is a third party entitled to participate and make submissions that records should not be disclosed.
[18]According to the appellant, the purpose of the Act is to promote access to records as a way of fostering accountability of public servants and politicians and of promoting participation in the democratic process. The exemptions to the right of access are limited and specific, and must be interpreted in light of this purpose.
[19]Regarding the exemptions other than those set out at subsection 20(1) of the Act, the appellant points out that there is no notice scheme similar to that provided in section 27. The appellant submits that the exemptions, other than those set out at subsection 20(1), fall in areas in respect of which the government institutions are best placed to protect the public interest. It is only when business or scientific matters are concerned (section 20) that it is necessary for government institutions to be provided with information from relevant third parties, hence the necessity of giving them notice.
[20]The appellant further submits that limiting the participation of third parties to matters falling within subsection 20(1) is a question of fairness: otherwise, there would be two classes of third parties, i.e. those receiving notice under sections 27 and 28, who would be afforded the opportunity of raising section 20 exemptions and all other exemptions provided for in the Act, and those third parties who would be unable to make any representation whatsoever, not having received notice from a government institution.
[21]Finally, the appellant submits that this Court's decision in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 (F.C.A.), supports the position that a third party's right to object to the application of exemptions is limited to those records set out in subsection 20(1) of the Act, and that our decision in Siemens should be reconsidered for the reasons which I have already outlined.
| The Respondent |
[22]Contrary to the position taken by the appellant, the respondent submits that the mechanism set out in section 44 is not intended to prevent third parties from invoking exemptions other than those found in subsection 20(1) of the Act. For this proposition, the respondent relies on our decision in Siemens which, it submits, has decided this question.
[23]The respondent contends that both the right to access and the availability of review of decisions made by government institutions to disclose must be considered in light of the exemptions contained in the Act, and relies for that proposition on the words of La Forest J. (writing in dissent, but speaking for the entire Court on the point of construction) in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 48, where he emphasized that both the Act and the Privacy Act recognize that in so far as privacy is encompassed within the definition of "personal information" in section 3 of the Privacy Act, privacy is paramount over access.
[24]The respondent submits that the absence of notice provisions, equivalent to those found in sections 27 and 28 of the Act, for other mandatory exemptions is explained by the fact that the assessment of these other exemptions may be made on the basis of the records themselves or from internal government information, and does not require input from third parties. However, the decision made by the government institution is in no way exempted from judicial review under section 44 of the Act.
[25]The respondent also submits that the wording of section 28 does not in any way limit or restrict the review to the records found in subsection 20(1).
[26]The respondent further submits that the words of section 44 cannot be interpreted as restricting the submissions that may be brought in support of a review under that section. The respondent says that section 44 is drafted very broadly and that the words "the matter" should receive a broad and liberal interpretation, as those same words found in section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] have received in Krause v. Canada, [1999] 2 F.C. 476 (C.A.), at page 491.
[27]Finally, the respondent says that the reasoning of this Court in Siemens in regard to section 24 of the Act is equally applicable to section 19. The respondent says that there is no substantive basis for overturning Siemens and that, in any event, the basis upon which the appellant submits that Siemens ought to be reconsidered is not an appropriate one.
[28]Alternatively, the respondent submits that interpreting section 44 of the Act as limiting judicial reviews to government institution decisions based on section 20, while hearing challenges brought under other sections of the Act pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 of the Federal Court Act, would be an inefficient use of the Court's resources.
| The Intervener |
[29]The intervener, in supporting the appellant's position, says that sections 20, 27, 28, 29, 44 and paragraph 25(2)(c) form a complete code governing the notification and review processes relating to third parties and, consequently, must be read as limiting the availability of remedies open to the Federal Court under section 51 of the Act.
[30]The intervener also says that allowing third parties to raise exemptions other than those found in section 20 results in a denial to the requester of information of the benefit of other provisions of the Act: where a government institution invokes an exemption other than a section 20 record as a basis for an access refusal, the requester is entitled to ask the Commission for an investigation, the investigation being a condition precedent to a judicial review by the Federal Court under sections 41 and 42. Allowing a third party to raise an exemption other than a section 20 exemption has the effect of circumventing the protection given by the Act to the access requester.
General Outline of the Act's Main Provisions
[31]The purpose of the Act is to promote access to information under the control of a government institution, subject to limited and specific exemptions.
[32]Subsection 2(1) of the Act provides that "necessary exceptions to the right to access should be limited and specific and . . . decisions on the disclosure of government information should be reviewed independently of government". Under the Act, Canadian citizens and permanent residents may request access to records held by government institutions.
[33]Sections 13 [as am. by S.C. 2000, c. 7, s. 21] to 24 of the Act set out a series of exemptions to the right to access, some of which are discretionary and others (among which section 19 "personal information" and 20 "third party information") which are mandatory.
[34]The Information Commissioner receives and investigates complaints, particularly by persons who have been denied access to records, or more generally complaints "in respect of any other matter relating to requesting or obtaining access to records under this Act" (paragraph 30(1)(f)).
[35]A complaint is a precondition to the possibility set out in section 41 of the Act of applying to the Federal Court for a review of "the matter". The powers of the Court in such instances are specified in sections 49 and 50 of the Act.
[36]The Act defines "third party" as "any person, group of persons or organization other than the person that made the request or a government institution" (section 3). Pursuant to section 27 of the Act, third parties are entitled to be notified of a government institution's intention to release records that the institution believes might contain records that are set out in subsection 20(1) of the Act (i.e. trade secrets, commercial of scientific information, etc.).
[37]Section 28 of the Act provides to third parties the right to make representations in respect of records which a government institution, pursuant to section 27 of the Act, intends to disclose.
[38]Subsection 44(1) entitles a third party, who has been given notice of a government institution's decision to disclose a record or a part thereof, to seek a review of that decision. No one other than such a third party can take advantage of the review process set out in section 44.
Analysis
[39]I now turn to Siemens. The relevant facts were the following. Subsequent to the issuance of a Request for Proposal (RFP) by Public Works and Government Services Canada (PWGSC) concerning the provision of in-service support on Halifax and Iroquois Class Ships for the Department of National Defence, Siemens submitted a proposal which, in due course, was accepted. Hence, the contract was awarded to Siemens.
[40]In November 1999, one of the unsuccessful bidders made a request for the records submitted by Siemens in support of its proposal and held by PWGSC.
[41]In November 1999, the Access to Information and Privacy (ATIP) Coordinator informed Siemens that a request for information had been received and that it was entitled to make submissions to PWGSC as to why the records should not be disclosed.
[42]Siemens, by written representations, informed the ATIP coordinator that it did not object to the disclosure of some of the records and, accordingly, provided the ATIP Coordinator with a list of the documents that it did not object to and those that it did object to on the basis of section 20 of the Act.
[43]Subsequently, Siemens had a change of heart and wrote to the ATIP Coordinator, informing her that it was withdrawing its consent to the disclosure of certain of the records. Rather, Siemens now took the position that none of the documents ought to be disclosed on the basis of subsection 24(1) of the Act. Specifically, Siemens took the position that disclosure of these records would breach section 30 of the Defence Production Act, R.S.C., 1985, c. D-1 (the DPA), which was incorporated in the Act by way of reference to Schedule II of the Act in subsection 24(1). Subsection 24(1) of the Act and section 30 of the DPA read as follows:
[Access to Information Act]
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
[Defence Production Act]
30. No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business . . .
[44]On February 23, 2000, PWGSC notified Siemens of its decision regarding the disclosure of the records at issue. PWGSC concluded that the records were partially exempt by virtue of subsection 19(1) and paragraphs 20(1)(b) and (c) of the Act, and that subsection 24(1) was not applicable. Hence, Siemens commenced its judicial review application pursuant to section 44 of the Act.
[45]In allowing Siemens' judicial review application and quashing PWGSC's decision, McKeown J. of the Federal Court [at that time the Trial Division (2001), 15 C.P.R. (4th) 470] made the following remarks at paragraphs 18, 19 and 20 of his reasons:
In the decision letter of February 23, 2000, the ATIP Coordinator makes no mention of section 30. The respondent PWGSC takes the position that section 30 does not apply to the Siemens' documents in question here, as they are part of the solicitation of the contract, and not part of the actual contract. The respondent argues that it is only the contract itself that is considered to be the Defence Contract, and to which section 30 may apply. In my view, however, the language of section 30 is clear that "No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed . . .".
The information in this case was obtained "under or by virtue of this Act," since the Minister derives his or her authority to conduct procurements, and to do all such things as appear to be incidental to such procurements, from section 16 of the Act. It is irrelevant, in my view, if the information in question constituted part of the actual contract, or was obtained as a pre-condition of the contract. It was all obtained by the Minister acting under the authority given by the Act. Once the contract comes under the DPA then section 30 does not distinguish between documents which were part of the contract and documents which were part of the solicitation. Section 30 does not refer to information obtained in the contract. Thus, section 1.5 of the RFP which states in part:
| Security clearance must be in place prior to award of Contract. |
does not take matters relating to security clearance outside section 30.
Therefore, pursuant to section 30 of the DPA, the documents should not be disclosed since the applicant has not provided its consent. The respondent, the Minister of Public Works is not to disclose any of the applicant's records in connection with PWGSC Solicitation No. 10 W8483-6-EFAA/A In-Service Support for Halifax and Iroquois Class Ships.
[46]The Attorney General of Canada, the appellant herein, appealed McKeown J.'s decision to this Court. On October 24, 2002, Sexton J.A., for the Court, delivered the following reasons from the Bench [at paragraph 1]:
We are not persuaded that the Motions Judge had no jurisdiction to decide as he did on the basis of section 30 of the Defence Production Act. . . . Counsel for the Crown concedes that section 44 of the Access to Information Act . . . was not argued before the Motions Judge and for the first time on appeal argues that section 44 limits the jurisdiction of the Court such that section 24 cannot be invoked by the party seeking to prevent disclosure. We are unable to interpret section 44 in this way. We also agree with the Motions Judge that the information in question here was obtained under or by virtue of the Defence Product[ion] Act. The appeal will be dismissed with costs fixed at $3,000.00.
[47]As the reasons in Siemens clearly indicate, the issue of whether section 44 of the Act limits the jurisdiction of this Court was raised for the first time in appeal. In answer to that question, the Court held that it could not interpret section 44 "in this way". The questions which we must decide are whether Siemens has decided the issue which is before us, and if so, whether we are bound by it. For the reasons that follow, I answer both questions in the affirmative.
[48]In Siemens, McKeown J., at first instance, concluded that by reason of section 30 of the DPA, the records at issue could not be disclosed unless Siemens consented to their release. This conclusion flows from the wording of section 30 of the DPA, which was incorporated in the Act by reference in subsection 24(1) to Schedule II of the Act.
[49]Consequently, although the issue raised before this Court in Siemens and before us was not raised before McKeown J. and, thus, he did not deal with that issue, the effect of his decision was that Siemens, a third party as defined in the Act, could, on a section 44 application, raise exemptions other than those found in subsection 20(1).
[50]In appeal of McKeown J.'s decision, the Attorney General raised the issue of section 44 for the first time. This Court, in brief reasons delivered from the Bench, dismissed his arguments, simply stating that it could not interpret section 44 in the way proposed by the Attorney General.
[51]The respondent submits that Siemens has decided the issue which we are called upon to decide. I agree with the respondent that it is not possible to distinguish Siemens from the present case on any ground, including the one that what was at issue in Siemens was not section 19, but section 24. Both sections provide that the head of a government institution must refuse to disclose records which fall within the wording of these sections; in the case of section 19, the head of the institution is not to disclose records that contain personal information as defined in section 3 of the Privacy Act and, in the case of section 24, the head of the institution is not to disclose records that contain information, the disclosure of which is restricted by or pursuant to any provision set out in Schedule II, namely in Siemens, pursuant to the DPA.
[52]Consequently, there cannot be much doubt, in my view, that in Siemens, this Court decided that a third party could, on a section 44 application, seek to prevent the disclosure of records on the basis of exemptions other than those contained in subsection 20(1) of the Act. I have had occasion to examine the memoranda of fact and law filed in Siemens by the Attorney General and by Siemens and, after a careful review thereof, I am satisfied that the issue which is before us was clearly before the Court in Siemens. More specifically, the Attorney General, as he does in this case, argued that our decision in Saint John Shipbuilding Ltd. supported his proposed interpretation of section 44.
[53]That is why, in my view, the Attorney General, in inviting us to reconsider Siemens, does not, to his credit, take the view that the substantive issue was not before our Court in Siemens. Rather, he submits that the reasons given in Siemens do not appear to have given sufficient consideration to the arguments which he put forward in that case. Hence, on that basis, the Attorney General asks us to overturn Siemens.
[54]I now turn to the question of whether we should overturn Siemens. In a number of recent decisions, our Court has clearly stated that we will not overrule a prior decision unless the decision is manifestly wrong, i.e. that the Court overlooked a relevant statutory provision or a case that ought to have been followed. In Miller v. Canada (Attorney General) (2002), 220 DLR (4th) 149 (F.C.A.), at paragraphs 8, 9 and 10, the Court dealt with the issue in the following terms:
There is no doubt that this Court may overrule its own decisions. However, the values of certainty and consistency lie close to the heart of the orderly administration of justice in a system of law and government based on the rule of law. Accordingly, one panel of this Court ought not to depart from a decision of another panel merely because it considers that the first case was wrongly decided. The Supreme Court of Canada will normally be the appropriate forum for correcting the errors of intermediate courts of appeal.
The jurisprudence on the overruling of prior decisions was reviewed by Urie J.A. in Canada (Minister of Employment and Immigration) v. Widmont, [1984] 2 F.C. 274 (C.A.) at 278-282, and his comments have been approved in subsequent cases: see, for example, Eli Lilly and Co. v. Novopharm Ltd. (1996), 197 N.R. 291 (F.C.A.) at 293. To summarize, the jurisprudence cited by Urie J.A. holds that, in the interests of certainty and consistency, sound judicial administration requires that, save in exceptional circumstances, a Court of intermediate appellate jurisdiction should follow its prior decisions. The Court is responsible for the stability, consistency and predictability of the law.
The test used for overruling a decision of another panel of this Court is that the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed: see, for example, Eli Lilly and Co., and Janssen Pharmaceutica Inc. v. Apotex Inc. (1997), 208 N.R. 395 (F.C.A.) at 396. The same test has been applied by provincial Courts of Appeal: see, for example, R. v. White (1996), 29 O.R. (3d) 577 (C.A.) at 604-05; Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 (B.C. C.A.) at 511; R. v. Grumbo (1988), 159 D.L.R. (4th) 577 (Sask.C.A.) at para. 21; and Lefebvre c. Québec (Commission des Affaires Sociales) (1991), 39 Q.A.C. 206.
[55]In Mathew v. Canada, [2004] 1 C.T.C. 115 (F.C.A.); Wannan v. Canada, [2004] 1 C.T.C. 326 (F.C.A.) and Amado-Cordeiro v. Canada (Minister of Citizenship and Immigration) (2004), 36 Imm. L.R. (3d) 35 (F.C.A.), panels of this Court have reiterated the principle enunciated in Miller.
[56]As I indicated earlier, the Attorney General invites us to reconsider Siemens on the ground that the panel in that case did not give sufficient consideration to his arguments. Unfortunately for the Attorney General, although I find very appealing his forceful arguments that, in a section 44 application, a third party's right to object to disclosure of records is limited to the records found in subsection 20(1) of the Act, I am of the view that we cannot overturn the decision rendered in Siemens. It cannot be said that the Court's decision in that case is "manifestly wrong". The Attorney General did not make any submissions to the effect that the Court, in Siemens, had either overlooked a relevant statutory provision or a case that ought to have been followed.
[57]For these reasons, I would dismiss the Attorney General's appeal with costs.
Desjardins J.A.: I concur.
Pelletier J.A.: I agree.