Date: 20030411
Docket: T-1409-01
Neutral citation: 2003 FCT 430
Toronto, Ontario, Friday, the 11th day of April, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
THE HIGH-RISE GROUP INC.
Applicant
- and -
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to s.44 of the Access to Information Act, R.S.C. 1985, c. A-1, (the "Act") in respect of a decision dated July 17, 2001 by or on behalf of the Respondent to disclose certain in-house "evaluations" generated on the basis of information supplied by the Applicant and others in a bidding competition.
[2] In 1999, Public Works and Government Services Canada ("PWGSC") issued a request for proposals ("RFP") for bids to provide leased office accommodation for various federal government departments in Hamilton, Ontario. The RFP required a bidder to provide a lease term of fifteen years with an option to extend the lease for a five-year term. The RFP further provided that the Respondent would consider options to purchase at the end of years two, five, ten and fifteen. The Applicant was one of the bidders.
[3] The Applicant was awarded the contract. Notification of this decision took place on December 15, 2000. In May of 2001, the Access to Information and Privacy Office for PWGSC (the "ATIP") received a request under the Act for disclosure of "the initial bidding documents showing the government's requirements for the building, a summary of the bids, and the department's bid evaluation summary showing the scores in each evaluation category for each bid". The ATIP determined the requester was eligible to make the request, and determined that the requested records contain information pertaining to the Applicant. The ATIP sent a letter to the Applicant, informing the Applicant of the request and invited the Applicant to make submissions with respect to disclosure. The Applicant responded with representations objecting to the disclosure of the records.
[4] The ATIP determined that there were not sufficient reasons to prevent full disclosure of the records.
[5] The Applicant seeks judicial review of the decision of the ATIP and claims exemptions from disclosure under s. 20(1)(b)(c)(d) of the Act. It is agreed that the onus lies with the Applicant to prove an exemption.
[6] The relevant provisions of the Act are as follows:
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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 don't la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;
d) des renseignements don't la divulgation risquerait vraisemblablement d'entraver des négociations menées par un tiers en vue de contrats ou à d'autres fins. |
Applicability of Section 20(1)(b)
[7] It is agreed that the record under consideration in the present case contains financial information. The Applicant's primary concern about the release of the record is expressed by its President, Mr. Warren S. Green, as follows:
I anticipate other RFP's to be advertised for the Hamilton area in the future. Some RFP's will be for the Government of Canada. Knowledge of Hi-Rise's lease rates and option prices (which are a function of Hi-Rise's costs to build and other factors) will be serious disadvantage to Hi-Rise and a serious advantage to Hi-Rise's competitors and other proponents of projects in Hamilton.
(Green Affidavit, September 17, 2000, para. 13)
[8] A primary position taken by the Respondent in arguing the inapplicability of s.20(1)(b) is that the records in question were not submitted by the Applicant to the Respondent; that is, they are not proposal documents but rather "evaluations" prepared by or on behalf of PWGSC from the raw proposal data supplied by the Applicant in its bid.
[9] In evaluating this position, I find that the uncontradicted evidence of Mr. Wayne B. Rudson, President of Rudson Evaluation Group Inc., a Toronto firm practising exclusively in business evaluation, damage quantification and investigative and forensic accounting, is important. Mr. Rudson was asked by the Applicant for his opinion as to whether disclosure of the evaluation records will allow the calculation of the Applicant's proposed and accepted annual rents and purchase options prices (at each stage of the lease) with some degree of certainty. In answer to this question, Mr. Rudson said as follows:
Based on the above calculations, it can be seen that, although the option prices cannot be calculated with absolute certainty, they can be calculated within a fairly narrow range, particularly for the options which can be exercised earlier during the lease term.
Accordingly, if the Records are released in their current form, it is possible to calculate both the annual rents and the purchase option prices (at each stage) with some degree of certainty. Therefore, if the Records are released information regarding the amount of rent paid, purchase options and rental rates for the Project will not remain confidential.
(Rudson Affidavit, September 17, 2001, para. 18-19)
[10] Based on Mr. Rudson's evidence, I find that the position taken by the Respondent is erroneous. On the evidence, I find that the raw data supplied by the Applicant in its proposal, and the evaluation record produced thereon, constitute, for the purpose of applying the exemption provisions of the Act, one and the same record.
[11] It is agreed that the record supplied by the Applicant contains financial information. On the evidence, I find that there is no doubt the information supplied by the Applicant has been treated consistently in a confidential matter by the Applicant. Therefore, I find the only issue left for determination is whether the information supplied by the Applicant is "confidential information" within the meaning of this term in s. 20(1)(b).
[12] On the basis of Justice MacKay's decision in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P. R. (3d) 180 at 198, it is agreed that whether information is "confidential" must be decided objectively on the following considerations:
...whether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely:
(a) that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own,
(b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and
(c) that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication.
[13] It is agreed that the first consideration respecting the inaccessibility of the record under consideration is satisfied on the Applicant's evidence.
[14] With respect to the second consideration, I find on the evidence that the Applicant communicated the information wanting it to be kept confidential. However, an issue which must be addressed is whether the information was communicated on a reasonable expectation that it would be kept confidential. In this respect, two pieces of evidence are important.
[15] Paragraph 12 of the "Request For Proposals" used by PWGSC in the present case reads as follows:
The Lessee considers that the leasing information listed hereunder is the type of government information that is normally available to the general public and therefore, the Lessee reserves the right to make this information available to the general public, that is;
(a) the address of the Building;
(b) the name and address of the Lessor;
(c) the commencement date of this Lease;
(d) the termination date;
(e) the options to extend and dates thereof;
(f) the area of the Leased Premises.
and the Lessor agrees to the disclosure to the public of such information and agrees not to object in any way whatsoever to the disclosure of such information.
(Affidavit of John Hammond, October 26, 2001, p. 79.)
I find that this provision does have the potential to create a reasonable expectation of confidence on the part of the Applicant with respect to information not itemized.
[16] It is important to note on this issue of "confidentiality" that there is uncontradicted evidence that PWGSC shared the same expectation of confidence as the Applicant. With respect to the access to information request in the present case, in an internal e-mail to officials under his direction, Mr. Fred Pincock, General Manager of Office Accommodation and Real Estate Services for PWGSC said as follows:
We are proceeding to collect the requested information. However it will be transmitted to the ATIP office with a very strong recommendation that none of the material be released. The bids of the various proponents is proprietary and would divulge commercially sensitive information and therefore should be excluded from distribution.
In this case we received three bids and it is common knowledge in the community which proponents submitted bids. It is further known that one of the bids was disqualified which leaves two bids; one successful and one not. Therefore any information released as a result of this request could easily be identified with each proponent.
It is my understanding that our department's position has always been that bid evaluations are exempt from ATIP requests. It would seem to me we are wasting a lot of time and effort to send this material to the ATIP office if in fact it is policy that the material cannot be released.
(Confidential Affidavit of Lucille Delbos, October 5, 2001, p. 380)
[17] On the basis of the two pieces of evidence just cited, I find that the information under consideration was communicated in a reasonable expectation of confidence.
[18] Therefore, the most important and contentious feature of the present case is whether the third consideration cited by Justice MacKay has been met.
[19] It is not contested that the relationship between the PWGSC and the Applicant is not contrary to public policy. Thus, the deciding feature in the present case under s. 20(1)(b) comes down to whether the relationship between the PWGSC and the Applicant will be fostered for public benefit by keeping the record under consideration confidential.
[20] It is agreed that the parties to the relationship in the present case cannot contract out of the Act whereby disclosure of information is the general rule. The Respondent argues that, on the basis of Justice Strayer's decision in Societe Gamma Inc. v. Canada (Department of Secretary of State) (1994), 56 C.P.R. (3d) 58, at 64, since the record in the present case involves the expenditure of public funds, disclosure would follow, expect in "special cases". Justice Strayer's complete statement in this respect is as follows:
General information about the applicant and the nature and quality of its work not otherwise exempted appears to me to be of a nature not inherently confidential. One must keep in mind that these proposals are put together for the purpose of obtaining a government contract, with payment to come from public funds. While there may be much to be said for proposals or tenders being treated as confidential until a contract is granted, once the contract is either granted or withheld there would not, except in special cases, appear to be a need for keeping tenders secret. In other words, when a would-be contractor sets out to win a government contract he should not expect that the terms upon which he is prepared to contract, including the capacities his firm brings to the task, are to be kept fully insulated from the disclosure obligations of the Government of Canada as part of its accountability. The onus, as has been well established, is always on the person claiming an exemption from disclosure to show that the material in question comes within one of the criteria of s. 20(1) and I do not think that the claimant here has adequately demonstrated that, tested objectively, this material is of a confidential nature. I accept that the applicant and, up to now, the respondent, have treated this material as confidential but that is only one part of the test prescribed in s. 20(1)(b) for confidentiality.
Societe Gammainvolved a call for tenders for independent contractors to offer to enter into a contract with the Department of Secretary of State for a term of one year to provide a certain range of translations services. I believe that Justice Strayer's comment regarding the release of tender information should be read in the factual context of that case. In my opinion, Justice Strayer's comment should not be taken to apply to all tender fact scenarios. Indeed, the situation in the present case involves a completely different situation, save that government money will be spent on the successful bid. While this latter factor is important, the weight to be placed on it should be determined on the actual facts of a particular case.
[21] In the present case, I put weight on Mr. Pincock's opinion as cited above to give content to the "public benefit" consideration. In my opinion, the evidence discloses a course of confidential conduct experienced by both the Government of Canada through officials at PWGSC and parties in the position of the Applicant. In my opinion, the agreement to this course of conduct should not be considered as contrary to the Act; instead, it should be viewed as necessary, in the public interest, to guarantee the integrity of the bidding process in the complicated lease and option-to-buy proposal in the present case. Thus, I find that, in the present case, the Applicant has adequately demonstrated that, tested objectively, the record under consideration is of a confidential nature.
Applicability of Section 20(1)(c) and Section 20(1)(d)
[22] With respect to meeting the requirements of these provisions, the only evidence presented by the Applicant is the single paragraph from Mr. Green's affidavit as quoted above. I consider the quoted statement regarding the future to be speculation, and, thus, find the Applicant has failed to discharge the onus of proof with respect to these two provisions of the Act.
ORDER
For the reasons provided, I order that the following records not be disclosed:
In the Confidential Affidavit of Lucille Delbos, sworn October 5, 2001, Tab I, pages 0414, 0415, 0416, 0417, and 0418.
In the course of oral argument in the present case, counsel for the Applicant and counsel for the Respondent agreed, and I so order, that the following records be disclosed:
In the Confidential Affidavit of Lucille Delbos, sworn October 5, 2001, Tab I, pages 0420, 0421, 0422, and 0423.
As it is successful in the present application, I award costs to the Applicant.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-1409-01
STYLE OF CAUSE: THE HIGH-RISE GROUP INC.
Applicant
- and -
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, APRIL 10, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES BY: Mr. Leonard Ricchetti
For the Applicant
Ms. Valerie Anderson
For the Respondent
SOLICITORS OF RECORD: McMilan Binch
Barristers and Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030411
Docket: T-1409-01
BETWEEN:
THE HIGH-RISE GROUP INC.
Applicant
- and -
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA
Respondent
REASONS FOR ORDER
AND ORDER