Federal Court Decisions

                                               

Date:20020312

Docket: T-2785-97

Neutral Citation: 2002 FCT 274

BETWEEN:

                                                        ST. JOSEPH CORPORATION

                                                                                                                                                       Applicant

                                                                                 and

                         PUBLIC WORKS AND GOVERNMENT SERVICES CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]                 St. Joseph Corporation (the "Applicant") seeks judicial review of the decision by Public Works and Government Services Canada (the "Respondent") to disclose certain third party information and records pursuant to the Access to Information Act, R.S.C. 1985, c. A-1, as amended (the "Act"). The application, made pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, seeks an order refusing disclosure of the records and costs.

FACTS

[2]                 The Applicant carries on a printing business through its subsidiary, St. Joseph Printing Ltd. (collectively referred to as "St. Joseph"). In May, 1996, the Applicant decided that it would attempt to acquire the assets of Canada Communication Group ("CCG"), a printing, warehousing and distribution operation of the Federal Government which the Government intended to privatize.

[3]                 Throughout the spring and fall of 1996, the Applicant engaged in negotiations about the sale of certain assets of CCG. It entered into a confidentiality agreement with the Government concerning information acquired in the course of investigation the operations of CCG, as part of the bidding process. It was agreed that any analyses, compilations, forecasts, studies or other documents prepared in respect of this investigation would be kept confidential "in perpetuity".

Applicant's Application Record, page 20

[4]                 The Government ultimately accepted the Applicant's bid to purchase CCG's assets. The sale was formalized through an Agreement of Purchase and Sale ("Agreement") dated December 13, 1996, between Her Majesty in Right of Canada as represented by the Minister of Public Works and Government Services and the Applicant. The Agreement includes Appendices "A" through "V" and certain other documents which amend and supplement it, referred to as the "Closing Documents", most of which are dated in early March, 1997. The Agreement and Closing Documents constitute the "Requested Records".

[5]                 The Respondent received a request, pursuant to the Act, for the production of documents related to the Government's plan to privatize CCG and its subsequent purchase by the Applicant.

[6]                 By letter dated June 12, 1997 from the Coordinator, Access to Information and Privacy, Public Works, the Applicant received notice pursuant to the Act that a third party had requested the Government to produce a "Copy of the Agreement and contract signed between St. Joseph Printing of Toronto regarding the sale and purchase of CCG." In this correspondence, Public Works advised that it intended to disclose the Agreement and invited the Applicant to make written representations as to why the Requested Records should not be disclosed, either in whole or in part.

[7]                 The Applicant's position was and is that the Agreement should not be disclosed in whole or in part. It submitted detailed written representations, dated July 2, 1997, in support of this position.

[8]                 The Applicant received a second notice from the Respondent dated July 21, 1997. The purpose of this was to advise that the request referred to in the June 12, 1997 letter now related to the Closing Documents, as well as the Agreement.

[9]                 The Applicant maintained that the Closing Documents should not be disclosed in whole or in part. Further detailed written representations in this regard, dated August 15, 1997 were submitted to the Respondent.

[10]            By correspondence dated December 8, 1997, the Respondent advised the Applicant of the decision to disclose a portion of the Requested Records. Copies the records it intended to disclose were enclosed in this correspondence. The materials comprise approximately 3000 pages. These have been filed with the Court and sealed pursuant to the Order of Madam Justice McGillis dated February 17, 1997.

ISSUE

[11]            One issue is raised by the Applicant in this application. Are the records in question exempt from disclosure pursuant to section 20(1)(a)(b)(c)(d) and 20(2) of the Act?

APPLICANT'S SUBMISSIONS

[12]            The Applicant relies primarily upon the provisions of section 20 of the Act to support its position that the Requested Records should not be disclosed.

[13]            It submits that the Requested Records contain trade secrets of the Applicant and should be exempt from disclosure pursuant to section 20(1)(a) of the Act.

[14]            The Applicant submits that the Requested Records contain information supplied by St. Joseph that is of a confidential financial, commercial, scientific or technical nature and that they have consistently been treated confidentially. Such confidential information of third parties is exempt from disclosure by the head of a government institution under certain circumstances pursuant to s. 20(1)(b) of the Act.

[15]            The Applicant relies on Montana Band of Indians v. Canada (Minister of Indian & Northern Affairs) where the circumstances prohibiting disclosure under section 20(1)(b) are outlined:

1.          the records at issue do in fact contain financial, commercial, scientific or technical information;

2.          the information in the records is confidential on some objective standard;

3.          the information is supplied to a government institution by a third party; and

4.          the information is treated in a consistently confidential manner by the third party.

Montana Band of Indians v. Canada (Minister of Indian & Northern Affairs) (1988), 51 D.L.R. (4^th) 306 (F.C.T.D.) at 315-6.

[16]            The Applicant argues that the Requested Records contain confidential information which it supplied to the Government and that confidential information is of a commercial or financial nature.

[17]            The Applicant also submits that the Requested Records contain information which has clear potential to materially injure its business interests and competitive position in the printing industry. Accordingly, they are exempt from disclosure by section 20(1)(c) of the Act.

[18]            The Applicant submits that the volume of documents dealing with its business affairs amplifies the probable harm to its financial interests or competitive position in the printing industry, should these documents be disclosed. Additionally, the large amount of information at issue also enlarges the probable gain which an unrelated party would derive from the records at issue.

[19]            The Requested Records contain private information concerning the manner in which the Applicant's business is conducted. The Applicant argues that if this information were disclosed, there is a reasonable expectation that it could be used by its competitors to exploit actual or potential weaknesses in its business, thereby causing loss and prejudicing its competitive position.

[20]            The Applicant argues that the Requested Records should be protected under section 20(1)(d) of the Act since their disclosure could reasonably be expected to interfere with the contractual or other negotiations of a third party. It says that the Agreement reveals its negotiation strategy. Such disclosure would interfere with its ability to negotiate and enter into agreements, on the most favourable terms, to purchase provincial government printing businesses that may come on the market through future privatization processes.

[21]            Finally, the Applicant relies on section 20(2) of the Act.

[22]            The Requested Records in issue contains the results of testing that was done for the Applicant for a fee as part of the sale of the assets CCG. Disclosure of this information is prohibited sections 20(2), (3) and (4) of the Act.

RESPONDENT'S SUBMISSIONS

[23]            The Respondent relies on the definition of "trade secrets" as discussed in Société Gamma Inc. v. Canada (Secretary of State). In that decision, the Court concluded that a trade secret must be something probably of a technical nature which is guarded very closely and is of such peculiar value to its owner that harm to the owner is presumed by its mere disclosure.

Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.) at 45.

[24]            The Respondent submits that the mere assertion of the Applicant that trade secrets exist in the Requested Records and that these have consistently been kept confidential is insufficient to meet the evidentiary burden on the Applicant. The evidence does not address the technical nature of the trade secret, how it is closely guarded or its peculiar nature. A broad generic description of a trade secret is insufficient to establish the exemption.

[25]            The Respondent argues that the Applicant cannot rely upon the exemption in 20(1)(b) because the evidence submitted does not meet the required standard. The Applicant fails to present evidence as to how the material it seeks to protect is objectively confidential, that it was supplied by the Applicant to the Government, or how it was maintained in a confidential manner pursuant to section 20(1)(b).

[26]            The Respondent says that the evidence adduced with respect to section 20(1)(c) sets out in general terms the elements of the Requested Records that may cause harm if released.

[27]            In response to the argument that the disclosure of certain contracts reveals sensitive information about other parties and should not be disclosed without notice to those parties, the Respondent submits that the Applicant has again failed to provide enough evidence to support this position.

[28]            The onus is on the Applicant, as the party resisting disclosure, to provide all evidence to support its position. Here, no evidence has been provided to show that the Requested Records constitute "sensitive information" to other third parties.

[29]            Concerning the Applicant's arguments relative to section 20(2), the Respondent submits that there is a lack of evidence to support the claim. The Applicant does not indicate what portions of the Requested Records are associated with the claim, and has failed to disclose any details of the fee arrangement or the service involved.

ANALYSIS

i) Standard of Review and Onus of Proof

[30]            The standard of review for an application under section 44 of the Act, where exemptions under section 20 are claimed, is correctness. Section 44 provides 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. (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.		44 (1) Le tiers que le responsable d'une institution fédérale est tenu, en vertu de l'alinéa 28(1)b) ou du paragraphe 29(1), d'aviser de la communication totale ou partielle d'un document peut, dans les vingt jours suivant la transmission de l'avis, exercer un recours en révision devant la Cour. (2) Le responsable d'une institution fédérale qui a donné avis de communication totale ou partielle d'un document en vertu de l'alinéa 28(1)b) ou du paragraphe 29(1) est tenu, sur réception d'un avis de recours en révision de cette décision, d'en aviser par écrit la personne qui avait demandé communication du document. (3) La personne qui est avisée conformément au paragraphe (2) peut comparaître comme partie à l'instance.

[31]            The use of the word "shall" in Section 20 suggests that no deference will be accorded to decisions of the heads of Government Institutions who decide to disclose records.

[32]            Section 44 applies where a third party brings a review proceeding and claims that the records in question are exempt from disclosure. In such a situation, the onus of proof rests with the party resisting disclosure.

[33]            It is the court's role to consider these decisions on a de novo basis, including a detailed review of the documents in issue, should this be necessary.

Air Atonabee Ltd. v. Canada (Minister of Transport) (1987), 27 F.T.R. 194 (F.C.T.D.) at p. 206.

[34]            The purpose of the Act is set out in section 2(1) which provides as follows:

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.		2(1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

This is a clear statement that the Act is meant to provide the public with a right of access to information in the records and that exceptions to this right ought to be limited and specific.

[35]            The Act accordingly places a "heavy burden" on the party attempting to prevent disclosure.

Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.) at 441.

ii) The Section 20 Exemptions

[36]            The Applicant claims the benefit of the exemptions contained in section 20. That section provides as follows:

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.		20(1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant_: a) des secrets industriels de tiers; b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers; c) des renseignements dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;

[1]            Subsection 20(1)(a) exempts from disclosure any record that contains the trade secrets of a third party. The term "trade secret" was discussed by Strayer J. (as he then was) in Société Gamma Inc. v. Canada (Secretary of State) as follows:

I am of the view that a trade secret must be something, probably of a technical nature ... which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure.

Société Gamma Inc. v. Canada (Secretary of State), supra, at 45.

[37]            The Applicant relies on a confidential affidavit that was filed as part of its Confidential Application Record. This is the only evidence adduced to support the position that the Requested Records should be exempt under section 20(1)(a).

[38]            In Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce), the burden of proof on the Applicant was described as follows:

[S]ince the basic principle of these statutes is to codify the right of public access to Government information two things follow: first, that such public access ought not to be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure...

Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce), [1984] 1 F.C. 939 (F.C.A.).

[39]            In my opinion, the affidavit evidence filed by the Applicant does not meet this onus. The affidavit speaks only in general terms and is more in the nature of speculation than a statement of facts. The lack of cross-examination on the affidavit does not enhance its reliability and the affidavit stands to be assessed on its face value. The affidavit does not establish how the Requested Records meet the legal test of a "trade secret".

[40]            The Applicant claims exemption under subsection 20(1)(b). This provision exempts from disclosure confidential financial, commercial, scientific or technical information.

[41]            In applying this exemption, the information in issue must meet the following criteria:

           1)         financial, commercial, scientific or technical information as those terms are commonly understood;

           2)         confidential in its nature, according to an objective standard which takes into account the content of the information, its purposes and the conditions under which it was prepared and communicated;

           3)         supplied to a government institution by a third party; and

           4)         treated consistently in a confidential manner by the third party.

Air Atonabee Limited v. Canada (Minister of Transport), supra, at 207.

[42]            Information which is publicly available or which can be obtained by observation will not be considered confidential; see Perez Bramalea Ltd. v. National Capital Commission, [1995] F.C.J. No. 63 (F.C.T.D.) (Q.L.).

[43]            The Applicant relies on a confidential affidavit included in its Confidential Application Record to support the application for exemption under 20(1)(b).

[44]            It is insufficient that the third party state, without evidence, that the information in question is confidential.

Air Atonabee Limited v. Canada (Minister of Transport), supra, at 207.

[45]            I turn now to consider the question of the confidentiality agreement between the parties.

[46]            An agreement was executed between the Applicant and the Minister of Supply and Services wherein any analyses, compilations, forecasts, studies or other documents prepared relative to the investigation of CCG by the Applicant for the purposes of the proposed acquisition would be held in confidence "in perpetuity".

[47]            In addition to this confidentiality agreement, the Agreement provides that neither party may disclose any of the matters referred to, or the transactions contemplated by the sale and purchase of CCG.

[48]            There is conflicting authority as to the effect to be given to a confidentiality agreement such as the one in issue here. In Keddy v. Canada (Atlantic Canada Opportunities Agency), it was held that where the Government gives an undertaking of confidentiality, that undertaking constitutes evidence that the information in question is confidential and is a factor for requiring the Government to refuse to disclose a record under section 20(1)(b) of the Act.

Keddy v. Canada (Atlantic Canada Opportunities Agency) (1993), 50 C.P.R. (3d) 484 (F.C.T.D.) at 490-491.

[49]            Furthermore, in Canada (Information Commissioner) v. Canada (Minister of External Affairs), an application for a review of the Minister's refusal to comply with a request for disclosure of the amount, in kilograms, of the largest single annual import allocation quota of foreign cheese, Denault, J. was satisfied that the requested information was exempt from disclosure. On the question of the Government's undertaking to act in confidence, he commented:

...I am satisfied that paragraph 20(1)(b) does require that the Government consider itself bound by its undertakings to act confidentially, in respect of financial, commercial, scientific or technical information, whenever the third party to whom the undertaking was given has consistently treated the information as confidential. ...To hold otherwise, and conclude that undertakings of confidentiality are strictly meaningless in light of the Act, is to give the Act a dogmatic interpretation rather than a rational one, and thus an interpretation which the law resists.

Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.) at p. 675.

[50]            However, there is another line of authority which takes a different view. In Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), Strayer, J, as he then was, held that the voluntarily submitted material marked "confidential" remained subject to the right of access in the Act. He said as follows:

...it is not enough to state that their submission is confidential in order to make it so in an objective sense. Such a principle would surely undermine much of the purpose of this Act which in part is to make available to the public the information upon which government action is taken or refused. Nor would it be consistent with that purpose if a Minister or his officials were able to exempt information from disclosure simply by agreeing when it is submitted that it would be treated as confidential

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), [1989] 2 F.C. 480 (F.C.T.D.) at page 487.

[51]            A confidentiality provision in an agreement for the production and television broadcast of the Canada Day shows for 1996 and 1997 was considered by Teitelbaum, J. in Canadian Broadcasting Corporation v. National Capital Commission. He concluded that a confidentiality agreement may be imposed in relation to the parties to that agreement but it cannot affect the access rights of a third party making a request under the Act.

Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 264 (F.C.T.D.).

[52]            Finally, in Canada (Information Commissioner) v. Atlantic Canada Opportunities Agency, Strayer, J.A., for the Federal Court of Appeal, held that an undertaking to keep information gathered by a government agency confidential cannot be determinative of disclosure obligations under the Act.

Information Commissioner (CAN.) v. Atlantic Canada Opportunities Agency (1999), 250 N.R. 314.

[53]            I conclude that the Court may take confidentiality agreements into account in assessing the objective confidentiality of the information in issue. However, confidentiality agreements remain subordinate to the Act.

[54]            While the confidentiality agreement and clause in the present case may be binding as between the parties, public policy does not permit such a clause to allow parties to contract out of the Act.

[55]            Considering the paucity of evidence as to how the Requested Records are objectively confidential and how they were maintained in a confidential manner, the Applicant has not met the evidentiary burden to exempt all the Requested Records under section 20(1)(b).

[56]            The Applicant relies on subsection 20(1)(c) and (d) in support of its application to withhold disclosure of the Requested Records.

[57]            The test for the application of these exemptions is that of a "reasonable expectation of probable harm".

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1989), 24 F.T.R. 32 at 36, aff'd. (1990), 107 N.R. 89 .

[58]            In the present case, the evidence in support of this argument is found in the confidential affidavits filed by the Applicant. These affidavits address the harm that could follow from the disclosure of specific classes of information; details of harm are provided in letters attached as exhibits to this affidavit.

[59]            The probative value of letters written by a person without first hand knowledge of the business affairs of the Applicant, is not high. In my opinion, the purpose of these letters was to advance an argument against the disclosure of the Requested Records. The mere attachment of the letters to an affidavit does not, in this case, enhance the evidentiary weight of the affidavit.

[60]            I must rely primarily on the affidavit. The affidavit, in my view, only speculates as to probable harm. The statements are very general and do not support the contention that disclosure of the Requested Records would result in a reasonable expectation of probable harm.

[61]            Furthermore, section 20(1)(d) requires that the Applicant show an obstruction in the actual contractual negotiations, as discussed in Société Gamma, supra at page 47. The evidence presented by the Applicant is lacking in this regard and does not support granting the exemption which is sought.

iii) Environmental Testing, Section 20(2)

[62]            The Applicant argues that the Requested Records contain environmental testing assessment reports which include, among other things, testing methods, test results and recommendations. Disclosure of this information is prohibited by section 20(2) of the Act.

[63]            Section 20(2) provides:

(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.

(2) Le paragraphe (1) n'autorise pas le responsable d'une institution fédérale à refuser la communication de la partie d'un document qui donne les résultats d'essais de produits ou d'essais d'environnement effectués par une institution fédérale ou pour son compte, sauf si les essais constituent une prestation de services fournis à titre onéreux mais non destinés à une institution fédérale.

[64]            The phrase "for a fee" in this section is a qualifying phrase. None of the details of the fee arrangement have been disclosed by the Applicant. In the absence of evidence that a fee was paid, I am unable to find that a section 20(2) exemption is established.

iv) Names of Suppliers

[65]            The Applicant has asked that the names of third parties as they appear in various documents throughout the Requested Records be deleted because these persons are entitled to third party notice.

[66]            This argument was rejected in Tridel Corp. v. Canada Mortgage and Housing Corp. where Campbell, J., of the Federal Court Trial Division, said as follows:

In this application it is Tridel Corporation's interests that are under review. Whose interests are under review in other applications, or who has not been served so that a review of their interests can be initiated, is not a concern which properly arises here. I do not accept the proposition that Tridel Corporation has standing on this s.44 application to initiate a review of the interests of other unserved parties, including the issue of whether they should have been served.

Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 (F.C.T.D.) at 203.

v) Leases and Subleases

[67]            The Applicant submits that all of the lease documents are commercial and financial in nature and should not be disclosed. In this regard, it relies on Bitove Corp. v. Canada (Minister of Transport) where leases were found to be confidential.

Bitove Corp. v. Canada (Minister of Transport) (1996), 119 F.T.R. 278 (F.C.T.D.).

[68]            In Perez Bramalea Ltd. v. National Capital Commission, Simpson J. found that there was a reasonable expectation of probable harm to the Applicant in negotiating rents for certain office and retail properties.

Perez Bramalea Ltd. v. National Capital Commission, supra.

[69]            Rental rates were not considered "information which was supplied to a government institution" in Halifax Development Ltd. v. Canada (Minister of Public Works and Government Services).

Halifax Development Ltd. v. Canada (Minister of Public Works and Government Services), [1994] F.C.J. No. 2035 (F.C.T.D.) (QL).

[70]            Whether the leases and subleases in the Requested Records are confidential financial or commercial information the disclosure of which may reasonably result in harm is a matter to be proven by the Applicant. I have concluded that the evidence tendered on this issue falls short of establishing a reasonable expectation of probable harm.

vi) Solicitor's Opinion

[71]            The parties requested the opportunity to file supplementary submissions concerning the manner in which legal opinions exchanged between them should be treated.

[72]            The Requested Records contain legal opinions prepared by the solicitors for both parties that the sale was proper and in accordance with applicable legislation. In the course of reviewing the Requested Records to respond to the information request, the Respondent exempted portions of the advice received from its solicitors, but none of the advice received from the solicitors of the Applicant.

[73]            In February 2001, the parties submitted a joint supplemental memorandum of fact and law that the opinions received form the Respondent's solicitors as well as those of the Applicant should be excluded from disclosure.

[74]            Section 23 of the Act provides:

23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.		23. Le responsable d'une institution fédérale peut refuser la communication de documents contenant des renseignements protégés par le secret professionnel qui lie un avocat à son client.

[75]            According to Stevens v. Canada, solicitor-client privilege is waived if material for which it is claimed is provided to a third party.

Stevens v. Canada (Prime Minister), [1997] 2 F.C. 759 at 774 (F.C.T.D.) aff'd [1998] 4 F.C. 89 at 120.

[76]            In the present case, the advice prepared by the solicitors was prepared expressly for use by the non-client party. Privilege was therefore waived.

[77]            The parties rely on the common interest privilege which protects shared, but otherwise privileged, communications between individuals who have a common interest in anticipated litigation from disclosure to the world at large.

See General Accident Insurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 at 336-7 (Ont. C.A.).

[78]            In Archean Energy Limited v. Minister of National Revenue, common interest privilege applied to situations where the parties had exchanged legal opinions in the context of a commercial transaction. The Court said as follows:

However, the parties to a commercial transaction are not adverse in interest in the same sense that parties to litigation are. In fact, parties to a commercial transaction have a common interest in seeing the deal done. That is particularly so where the companies are related by some common shareholders or management as is said to be the case here. ... It is a reasonable inference that Eagle instructed its solicitors to provide the opinion in order to further the reorganizations and not with the intent to waive privilege. The burden of proving waiver lies upon the party who alleges it.

Archean Energy Limited v. Minister of National Revenue (1998), 1 C.T.C. 398 (Alta Q.B.) at pp. 404-405.

[79]            In the present case, the legal opinions were created and exchanged in the course of a commercial transaction, not in the face of pending or actual litigation. The parties had a joint interest in ensuring completion of the transaction. There is no evidence that either party intended or anticipated the legal opinion would be disclosed to strangers to the transaction.

[80]            There is a legitimate interest in protecting legal advice provided to parties to a commercial transaction such as the one involved here. There is no apparent impediment to extending the benefit of the common interest privilege to the legal opinions exchanged in this case, particularly in light of the joint submissions from counsel for the parties.

vii) Specific Records

[81]            Approximately 3000 pages of the Requested Records have been reviewed. Counsel for the Applicant has asked me to give special consideration to several of these documents and to exclude certain documents from disclosure on the grounds that they contain information identical or similar to information contained in other documents which the Respondent agreed to exempt.      My findings with respect to these requests are noted below.

[82]            I am prepared to order that the documents referred to in Appendix "A" to these reasons are exempt from disclosure on the basis of the "consistency" argument.

CONCLUSION

[83]            The Application will be allowed in part. The information described in Appendix "A" and the legal opinions will be exempt from disclosure for the reasons outlined above. The remainder of the Requested Records will be disclosed since, in my opinion, the Applicant has failed to adduce evidence of sufficient probative value to meet the legal test of exemption for disclosure under the Act.

[84]            However, in order to maintain the status quo, in the exercise of my discretion I order that the documents remain undisclosed pending the expiry of any applicable appeal period.

[85]            Finally, on the question of costs the parties requested the opportunity to address that question after disposition of the application. The parties may make submissions on costs if they are otherwise unable to agree.

                                                  ORDER

The application is allowed in part in accordance with the foregoing reasons and the parties may make submissions on costs if they are otherwise unable to agree. Such submission shall be returned initially before me.

                                                                                            "E. Heneghan"                   

                                                                                                      J.F.C.C.           

                                               Appendix A

1.         Amount of cheque as found on pages 2266, 2267, 2396 and 2403.

2.         Document at Tab 1, Volume 1.

3.         Pricing information under the headings "Unit Price" and "Extended Price", Volume 8, pages 3323, 3324, 3326, 3328, 3331-3338, 3344, 3348, 3349, 3351, 3354, 3355, 3360, 3363, 3372, 3381 and 3384.

4.         The "Value" column shall be deleted at Volume 8, pages 3411-3414 to maintain consistency.

5.         The prices under "Remarks/Value" shall be deleted at page 753.

6.         The figure in line 4, paragraph 1, page 2398 shall be deleted.