Date: 20040325
Docket: T-616-01
Citation: 2004 FC 444
Ottawa, Ontario, this 25th day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
CANADIAN PACIFIC HOTELS CORPORATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
APPLICATION UNDER section 44 of the Access to Information Act
REASONS FOR ORDER AND ORDER
[1] This is an application, pursuant to s. 44 of the Access to Information Act R.S.C., 1985,
c. A-1 ("Act") for review of the decision of Mr. E.W. Aumand, Access to Information and Privacy Co-ordinator ("Co-ordinator"), Heritage Canada ("Agency") dated March 20, 2001 ("Decision"). The Decision was first communicated to the Applicant by courier letter received March 21, 2001.
BACKGROUND
[2] OnMarch 8, 2002, the Applicant (now FHR Real Estate Corporation) received a letter dated February 27, 2001, from the Agency, advising that the Agency had received a request under the Act for a copy of all agreements signed with Jasper Park Lodge since April 1, 1997 ("Request").
[3] Attached to the March 8, 2001 letter were several documents the Agency was considering for disclosure in response to the Request. Included in those documents were leases executed on various dates by commercial retail tenants at Jasper Park Lodge and the Applicant ("Retail Leases") and two agreements, dated April 1969 and February 1982, between Her Majesty the Queen in Right of Canada and Canadian National Railway Company ("Crown Leases"). The Crown Leases are in respect of lands in Jasper National Park on which Jasper Park Lodge is located.
[4] In a letter dated March 16, 2001, the Applicant opposed the disclosure of both the Retail Leases and the Crown Leases.
[5] By a letter dated March 20, 2001, the Co-ordinator advised that the Agency had decided to disclose the Retail Leases with certain key, confidential terms removed. This partial disclosure was acceptable to the Applicant and no dispute remains in respect of the disclosure of the Retail Leases.
[6] The March 20, 2001 letter also advised that the Agency intended to disclose the Crown Leases in their entirety, as they "are referred to in other documents and are therefore considered relevant to the request." This is the Decision that is the subject of this s. 44 application.
[7] On April 9, 2002, pursuant to s. 44 of the Act, the Applicant filed a Notice of Application with the Federal Court of Canada seeking judicial review of the Decision. The affidavit of the Applicant and the Applicant's Record were filed on January 24, 2002, and October 2,_2002, respectively.
[8] By Order dated February 5, 2003, the Respondent was granted leave to file the affidavit of Tina Bodnar, notwithstanding that the Respondent's time for filing affidavit evidence had long passed and the Applicant's record had been filed. The February 5, 2003 Order also granted the Applicant leave to file a Revised Applicant's Record.
PERTINENT LEGISLATION
[9] Section 2(1) of the Act indicates the general purpose of the legislation and makes it clear that exceptions to disclosure should be limited and specific:
| 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. |
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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.
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[10] Section 3 of the Act defines a "third party" as "any person, group of persons or organization other than the person who made the request or a government institution." The Applicant is a third party for the purposes of this Application.
[11] Section 20(1) of the Act contains specific exceptions to disclosure. The two relevant ones for this application are as follows:
| (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. |
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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. |
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[12] Section 20(6) of the Act sets out a specific exception to the exemptions in s. 20(1). The head of a government institution may disclose any record requested under the Act, or any part thereof, that contains information described in section 20(1)(b),(c), or (d) if that disclosure:
| (6) ... 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. |
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6) ... concernant la santé et la sécurité publiques ainsi que la protection de l'environnement; les raisons d'intérêt public doivent de plus justifier nettement les conséquences éventuelles de la communication pour un tiers_: pertes ou profits financiers, atteintes à sa compétitivité ou entraves aux négociations qu'il mène en vue de contrats ou à d'autres fins. |
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[13] Sections 27 and 28 of the Act address the issue of third party intervention under the Act:
| 27. (1) Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1)(b) that was supplied by a third party, or
(c) information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.
...
28. (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,
(a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and
(b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party. ...
(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. |
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27. (1) Sous réserve du paragraphe (2), le responsable d'une institution fédérale qui a l'intention de donner communication totale ou partielle d'un document est tenu de donner au tiers intéressé, dans les trente jours suivant la réception de la demande, avis écrit de celle-ci ainsi que de son intention, si le document contient ou s'il est, selon lui, susceptible de contenir_:
a) soit des secrets industriels d'un tiers;
b) soit des renseignements visés à l'alinéa 20(1)b) qui ont été fournis par le tiers;
c) soit des renseignements don't la communication risquerait, selon lui, d'entraîner pour le tiers les conséquences visées aux alinéas 20(1)c) ou d).
La présente disposition ne vaut que s'il est possible de rejoindre le tiers sans problèmes sérieux.
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28. (1) Dans les cas où il a donné avis au tiers conformément au paragraphe 27(1), le responsable d'une institution fédérale est tenu_:
a) de donner au tiers la possibilité de lui présenter, dans les vingt jours suivant la transmission de l'avis, des observations sur les raisons qui justifieraient un refus de communication totale ou partielle du document;
b) de prendre dans les trente jours suivant la transmission de l'avis, pourvu qu'il ait donné au tiers la possibilité de présenter des observations conformément à l'alinéa a), une décision quant à la communication totale ou partielle du document et de donner avis de sa décision au tiers.
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(4) Dans les cas où il décide, en vertu de l'alinéa (1)b), de donner communication totale ou partielle du document à la personne qui en a fait la demande, le responsable de l'institution fédérale donne suite à sa décision dès l'expiration des vingt jours suivant la transmission de l'avis prévu à cet alinéa, sauf si un recours en révision a été exercé en vertu de l'article 44. |
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[14] Section 44(1) of the Act indicates that any third party to whom the head of a government institution is required to give notice of a decision to disclose a record or a part thereof under the Act may, within 20 days after the notice is given, apply to the Court for a review of the matter.
ISSUES
[15] The Applicant raises the following issues:
Should the Crown Leases be disclosed in response to the Request?
Are the Crown Leases outside the scope of the Request?
Do references to the Crown Leases in other disclosed records require disclosure of the Crown Lease?
Do the Crown Leases fall within the statutory exemptions set out in s. 20 of the Act?
ANALYSIS
What is the applicable standard of review?
[16] In 3430901 Canada Inc. v. Canada (Minister of Industry), [2001] F.C.J. No. 1327 (leave to appeal refused), [2001] S.C.C.A. No. 537, Evans J.A. indicated for the Federal Court of Appeal that, in light of the Supreme Court of Canada decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 the appropriate standard of review was correctness for decisions made under the Act.
[17] In the recent decision of the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] S.C.J. No. 7, Gonthier J. applied the pragmatic and functional approach to determine that the standard of review applicable to decisions under the Act is the correctness standard. In reaching this conclusion, the Court noted at pages 7-8:
(a) the Act does not contain a privative clause;
(b) the Act contains a right to apply for judicial review; and
(c) a stated purpose of the Act, as set out in s. 2(1), is to ensure that "decisions on the disclosure of government information should be reviewed independently of government."
[18] In view of this jurisprudence, I regard the appropriate standard to apply to the issues raised in the present application to be that of correctness.
The Issues
[19] In my opinion, the Applicant raises three important issues for consideration in this application.
Scope of Request
[20] First of all, the Applicant says that the Crown Leases should not be disclosed in response to the Request (the requester's identity is unknown) because they do not come within the scope of the Request.
[21] The Request was for "a copy of all agreements signed with Jasper Park Lodge since April 1, 1997." The Crown Leases are dated April, 1969 and February 1982 respectively. The Agency thinks the Crown Leases should be disclosed in response to the Request because they are referenced in other documents that do fit the specifics of the Request and because they carry a historical and contextual relevance for agreements signed since April 1, 1997.
[22] The Applicant points out that the Crown Leases were executed well before 1997 and they were signed by Her Majesty the Queen in Right of Canada and Canadian National Railway Company, not Jasper Park Lodge.
[23] Moreover, the documents that reference the Crown Leases are Parks Canada Agency consents to subleases between CP Hotels and commercial retail tenants at Jasper Park Lodge. The Applicant was not aware that these documents were being considered for disclosure under the Request and was, indeed, given no opportunity by the Agency to object to their disclosure.
[24] In essence, the Applicant says that the Act contains no provision requiring disclosure of a third party document merely because it is referred to in other records that are to be disclosed. A reference cannot necessitate disclosure under the Act if the third party document falls outside the scope of the Request or falls within the exceptions contained in s. 20 of the Act.
[25] This raises two important points for the Court to consider. First of all, the Court needs to determine whether a third party in the position of the Applicant who applies to the Court for review under s. 44 can raise relevance and scope of request objections to forestall disclosure. The Applicant agrees that there are no specific provisions in the Act to guide the Court on this issue but invites the Court to apply general judicial review grounds to the Decision.
[26] My conclusion on this point is that, when considering a s. 44 third party review application, the Court must address the specifics of the Act and the general scheme of disclosure that the Act brings into being.
[27] The general policy and intent of the Act are contained in s. 2(1).
[28] My reading of this provision leads me to the conclusion that it was Parliament's intent that government information should be available to the public, and that any exceptions to this right of access should be limited and specific.
[29] By "limited and specific," I believe such exceptions must be specifically set out in the Act. My reading of the Act leads me to the conclusion that there is no exception based upon scope and relevance that a third party can rely upon when seeking review under s. 44.
[30] The only place where relevance and scope come into play is in the context of s. 6 and the procedure for making a request for access:
| 6. A request for access to a record under this Act shall be made in writing to the government institution that has control of the record and shall provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record. |
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6. La demande de communication d'un document se fait par écrit auprès de l'institution fédérale don't relève le document; elle doit être rédigée en des termes suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution de trouver le document sans problèmes sérieux. |
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[31] This is a facilitating provision. Sufficient detail is required to permit identification of a record and an adequate response to the Request. The wording of s. 6 contains no prohibition against disclosing documents that are not relevant to the Request. In fact, s. 6 does not even address the concept of relevancy. It merely stipulates that a request must be made in writing and must provide sufficient detail to allow the identification of the record requested. It would take a substantial amount of reading in to conclude that this imposes an obligation on the government institution to refrain from disclosing information that is not relevant to the Request. Bearing in mind the underlying objectives of Parliament in enacting the Act, as embodied in s. 2, I find there is no exemption available to the Applicant based upon relevancy. See Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) at para. 23; Canadian Tobacco Manufacturer's Council v. Canada (Minister of National Revenue) (2003), F.C.J. 1308 (T.D.) at para. 91; and Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services), [1990] 107 N.R. 89, at 91 (F.C.A.) at p. 91.
Section 20(1)(d)
[32] The Applicant further seeks to prevent disclosure of the Crown Leases (or, at least, certain portions of the Crown Leases) on the grounds that disclosure would result in a material financial loss to the Applicant, and can reasonably be expected to prejudice the competitive position of the Applicant.
[33] The grounds advanced on this issue are as follows:
a. if the terms of the Crown Leases are disclosed, a competitor could approach the landlord with more advantageous terms and attempt to acquire the lease on expiry or adversely affect renewal negotiations;
b. the Crown Leases deal with property located within Jasper National Park. The Park is subject to extremely tight restrictions on growth and there are limited opportunities for development;
c. the Crown Leases contain commercially sensitive terms, including the term, renewal provisions, rental amounts and default conditions. If this information is disclosed it will provide a competitive advantage to competitors and suppliers to the detriment of the Applicant.
[34] In order to invoke the exception under 20(1)(c) it is well-recognized that the Applicant bears the burden of demonstrating, on a balance of probabilities, that there is a reasonable expectation of probable harm to the Applicant's competitive or financial position that would result from disclosure. See Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 264 at para. 24 (T.D.). The evidence required to justify an exemption under this section must be detailed and convincing and must demonstrate a direct link between disclosure and the alleged harm. Speculation is not sufficient. The Applicant must demonstrate a reasonable expectation of harm.
[35] In my opinion, the evidence brought forward by the Applicant on this ground remains in the realm of speculation. The Applicant's argument is, essentially, that disclosure of the key terms of the Crown Leases could subject the Applicant to a much more competitive environment concerning the Jasper Park Lodge than it has had to contend with in the past. In my view, however, a more competitive environment does not give rise to a reasonable expectation of a material financial loss or a prejudice to the Applicant's competitive position within the meaning of s. 20(1)(c) and its interpretive jurisprudence. The connection is too tenuous and not sufficiently proven in this case.
Section 20(1)(d)
[36] In my view, the Applicant's real concern and strongest argument on this application relates to the impact of disclosure upon on-going contractual negotiations. Bearing in mind the precautions imposed by s. 47 of the Act and the power granted to the Court under s. 51 of the Act, I have carefully reviewed the evidence submitted by the Applicant on this ground. Taking into account the legal burden upon the Applicant to establish real, as opposed to speculative, interference with contractual negotiations, and the need for a direct link between disclosure and the harm envisaged, I am satisfied that the Applicant has met the burden on this ground. The harm referred to, however, is temporary and not perpetual. It arises out of the exigencies of a particular situation faced by the Applicant.
[37] With these factors in mind, the Court is of the view that the Crown Leases should be disclosed, but in a redacted form to ensure that the harm envisaged by the Applicant under s. 20(1)(d) of the Act does not materialize. Once the dangers of the immediate situation have passed, the Court is of the view that the policy and specific wording of the Act require the terms of the Crown Leases to be disclosed in their entirety.
ORDER
THIS COURT ORDERS that
1. As regards the Crown Lease document dated April 1969, the Agency shall disclose this document in response to the request but shall not disclose the following portions, which will be redacted and removed by the Agency prior to disclosure:
(a) On page 1, the "To Have And To Hold" paragraph shall be removed in its entirety;
(b) On page 1, subparagraph (a) under the "Yielding And Paying Therefor" paragraph shall be edited to remove the amount of the annual rent;
(c) On page 3, paragraph 14, lines 6 and 7 shall be removed;
(d) On page 3, paragraph 15, the final 3 lines shall be removed;
(e) Paragraph 16, on pages 3 and 4, shall be removed in its entirety;
(f) On page 4, paragraph 21 shall be removed in its entirety.
2. As regards the Crown Lease document dated February 24, 1982, the Agency shall disclose this document in response to the request but shall not disclose the following portions, which will be redacted and removed by the Agency prior to disclosure;
(a) On page 1, the final 2 lines of paragraph 3 shall be removed;
(b) On page 2, in subparagraphs 7(a), 7(b), 7(c), 7(d) and 7(e), the percentage rate in the first line and the actual dollar amount of the appraised value in the second line of each of these paragraphs shall be removed.
3. At such time as the present negotiations concerning the renewal of the Crown Leases shall have been concluded (either through the execution of new leasing arrangements by the parties or by the breaking off of negotiations by either party) the Applicant shall immediately notify the Agency that the negotiations have concluded and the Agency shall release the redacted information (as outlined in paragraph 1 and 2 above) to the Requester;
4. At any time prior to the release of all of the information contained in the Crown Leases in accordance with the terms of this Order, the parties may, by motion made to this Court, seek further relief or directions concerning the release of the information to be excluded from disclosure in accordance with paragraph 3 of this Order.
5. No order shall be made as to costs.
"James Russell"
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JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-616-01
STYLE OF CAUSE: CANADIAN PACIFIC HOTELS CORPORATION v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 27, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Justice Russell
APPEARANCES:
Ms. Julie Whitaker FOR APPLICANT
Mr. Robert Drummond FOR RESPONDENT
SOLICITORS OF RECORD:
MACLEOD DIXON
Calgary, Alberta FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT