Date: 20020621
Docket: T-558-01
Neutral citation: 2002 FCT 700
BETWEEN:
CANADA POST CORPORATION
Applicant
- and -
NATIONAL CAPITAL COMMISSION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for review pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act") of the respondent's decision to disclose certain information concerning financial sponsorship assistance received by the National Capital Commission ("NCC") from Canada Post Corporation with respect to three events: Canada Day; the Sound and Light Show; and, the Christmas Lights. The issue is whether the amounts paid by Canada Post for sponsoring these events are exempt from disclosure pursuant to either paragraph 20(1)(b), or (c) or (d) of the Act.
FACTS
[2] A request was filed with the NCC under the Act for access to information related to financial assistance received from sponsors, for public events for which the NCC is responsible. Specifically, the request was for records regarding:
- · NCC assistance 1999-2001 received from federal government agencies, per project including future year commitments made beyond 1999; and,
- · NCC assistance received 1999-2001 from all other sponsors including the private sector and other governments for the same period April 1, 1997 to present or commitments for future years.
[3] Pursuant to sections 27 and 28 of the Act, by letter dated February 16, 2001 the NCC informed Canada Post of this request. Attached to the letter was a Record detailing information about Canada Post with respect to contributions made for events on Canada Day, the Sound and Light Show, and the Christmas Lights, that the NCC intended to release, on the grounds that the information was not protected under section 20(1) of the Act (see the public affidavit of Ginette Grenier).
[4] The letter gave Canada Post the opportunity to make submissions as to why the information in the Record should be exempt from disclosure.
[5] By letter dated March 8, 2001, Canada Post provided the NCC with submissions objecting to the release of the information on grounds based upon paragraphs 20(1)(b), (c) and (d) of the Act.
[6] By letter dated March 13, 2002, the NCC rejected Canada Post's submissions. Canada Post
proceeded with the present application to this Court.
RELEVANT STATUTE
[7] The relevant sections of the Act are as follows:
PURPOSE OF ACT
Purpose
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.
[...]
Third Party Information
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;
OBJECT DE LA LOI
Object
2. (1) La présente loi a pour objec 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.
[...]
Renseignements de tiers
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) 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.
[...]
Third party may apply for a review
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.
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.
[...]
Recours en révision du tiers
44. (1) Le tiers que le responsable d'une institution fédérale est tenu, en vertu de l'alinéa 28(1) b) ou de 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.
STANDARD OF REVIEW AND ONUS
[8] The standard of review under section 44 of the Act is correctness. It is the Court's role to consider whether the information ought to be disclosed on a de novo basis. However, the purpose of the Act is to provide the public with a right of access to information, and the party attempting to prevent disclosure has a heavy onus to prove that the information is exempt from disclosure under the Act. I refer to the decision of Heneghan J. in St. Joseph Corp. v. Canada (Public Works and Government Services), [2002] F.C.J. No. 361, 2002 FCT 274 (F.C.T.D.).
ANALYSIS
[9] The applicants claim exemption from disclosure under paragraphs 20(1)(b),(c) and (d) of the Act. As set out in St. Joseph Corp., supra. the onus is on the applicant to show that clear grounds exist to justify the exemption. The applicant need only meet one of these three tests for exemption to be successful in this application.
Paragraph 20(1)(b) - Confidential financial or commercial information
supplied in confidence
[10] The parties agree that exemption under paragraph 20(1)(b) requires meeting the four-part test set out by MacKay J. in Air Atonabee Limited v. Canada (1989) 27 F.T.R 194 (F.C.T.D.), and summarized in St. Joseph Corp. at paragraph 42, as follows:
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.
[11] I am satisfied that the amounts of financial assistance for sponsorship is "financial and commercial information". I am also satisfied that it was confidential in nature. However, the evidence on the record was conspicuously lacking in that Canada Post did not produce a confidentiality agreement with NCC in this regard. If Canada Post wished to prevent the NCC from disclosing the amounts paid for sponsorship, Canada Post logically would have entered into a confidentiality agreement at the outset, and filed it as evidence.
[12] There is a contradictory aspect to the dealings between the parties in this case. On the one hand, a sponsor has the right to know, in advance, that the amount of its sponsorship may be disclosed by the recipient. On the other hand, a recipient who has not been informed by the sponsor that the amounts shall be kept private has no reason to act as though they should.
[13] While the affidavit of Mr. Alain Gilbert, VP Communications with Canada Post Corporation, does state the importance of this information remaining confidential, at no point does the applicant make it clear that such information has been "treated consistently in a confidential manner". Indeed, the affidavit points out past instances where such information was not treated confidentially. Those instances may occur through no fault of the applicant, but regardless, are not indicative of careful, consistent measures to restrict access to the information.
[14] In any event, I am of the opinion that paragraph 20(1)(b) of the Act does not apply to the case at bar for the reason that the negotiated amounts of the financial assistance cannot be characterized as information "supplied to a government institution by a third party" as required in paragraph 20(1)(b). See Halifax Development Ltd. v. Canada (Minister of Public Works and Government Services), [1994] F.C.J. No. 2035 as per McGillis J. The intention of Parliament in exempting financial and commercial information from disclosure applies to confidential information submitted to the government, not negotiated amounts for goods or services. Otherwise, every contract amount with the government would be exempt from disclosure, and the public would have no access to this important information. Moreover, there would be no need for Parliament to have enacted paragraphs 20(1)(c) and 20(1)(d). Accordingly, paragraph 20(1)(b) is not a ground for an order that the information not be disclosed in this case.
Paragraph 20(1)(c) - Information which could reasonably be expected to result in material financial loss or could reasonably be expected to prejudice the competitive position of a third party
[15] The test under paragraph 20(1)(c), as discussed in Canada Packers Inc. v. Canada (Minister of Agriculture) et al., [1989] 1 F.C. 47, [1988] F.C.J. No. 615 (F.C.A.), is that the applicant must show a reasonable expectation of probable harm to the applicant's financial or competitive position will result from the disclosure.
[16] The Court in this application must weigh the facts to arrive at its own conclusion whether the applicant has established a reasonable expectation of probable harm will result from the disclosure of the information. The applicant submits the disclosure could reasonably be expected to prejudice the competitive position of Canada Post. Upon considering the confidential evidence, I am persuaded that the disclosure of the amounts paid for the sponsorship of these three public events can reasonably be expected to prejudice the competitive position of Canada Post. Quite simply, Canada Post's private sector competitors, eg. Federal Express and United Parcel Service, will probably use the information to the competitive disadvantage of Canada Post by trying to outbid Canada Post. In addition, other groups will use the information to seek increased sponsorship funding from Canada Post. Disclosure of the amounts paid by Canada Post for sponsorship will probably undermine Canada Post's negotiating position. This conclusion is analogous to the conclusion of Simpson J. in Perez Bramalea Ltd. v. Canada (National Capital Commission), [1995] F.C.J. No. 63 (F.C.T.D.) where the Court held that there is a reasonable expectation of probable harm if prospective tenants know the rental rates paid by the NCC for eleven floors of an office building in Ottawa. Just as disclosure of rental rates paid by one tenant can prejudice the competitive position of a landlord, so can disclosure of sponsorship rates prejudice the competitive position of a sponsor.
[17] The applicant has provided tangible evidence of probable harm as opposed to merely speculative evidence. This case is distinguishable from Canadian Broadcasting Corporation v. National Capital Commission (1998), 147 F.T.R. 264 (F.C.T.D.) which found that the CBC evidence was only speculative and that there was no tangible evidence of probable harm. Accordingly, the applicant has met the test in paragraph 20(1)(c) so that the Court will order the respondent refuse disclosure on this basis.
Paragraph 20(1)(d) - Information which could reasonably be expected to interfere with contractual or other negotiations of a third party
[18] Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.) as per Strayer J. (as he then was) at paragraph 10 held that paragraph 20(1)(d) must be construed and interpreted to be different than the clear meaning of paragraph 20(1)(c). Justice Strayer held:
[...] when s.20(1)(d) refers to disclosure which could "interfere" with contractual negotiations it must refer to an obstruction to those negotiations and not merely to the heightening of competition for the third party which might flow from disclosure.
In the case at bar, disclosure can reasonably be expected to prejudice the competitive position of Canada Post. However, I am unable to conclude from the evidence and submissions how disclosure could obstruct future negotiations. The possibility of pressure from third parties for matching sponsorship funds and pressure from competitors cannot be considered interference or obstruction with future contractual negotiations. Canada Post argues that it is under certain pressures as a public body to match sponsorship funds. This submission is pertinent to the exemption in paragraph 20(1)(c), not 20(1)(d). I am not persuaded that disclosure could reasonably be expected to interfere with future contractual or other negotiations by Canada Post. Accordingly, paragraph 20(1)(d) is not applicable.
CONCLUSION
[19] This application will be allowed on the basis of paragraph 20(1)(c), and the Court will order that the respondent refuse to disclose the information. However, the Court would have expected Canada Post to have entered into a confidentiality agreement to protect disclosure of financial information which could reasonably be expected to result in financial loss or prejudice to its competitive position. This lack of evidence, together with the respondent's success on two of the three grounds for exemption, will be reflected in an order that both parties bear their own costs.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
June 21, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-558-01
STYLE OF CAUSE: CANADA POST CORPORATION
Applicant
- and -
NATIONAL CAPITAL COMMISSION
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 17, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN
DATED: June 21, 2002
APPEARANCES:
Mr. Richard G. Dearden FOR THE APPLICANT
Ms. Barbara A. McIssac FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Richard G. Dearden FOR THE APPLICANT
Gowling Lafleur Henderson, LLP
Ottawa, Ontario
Ms. Barbara McIssac FOR THE RESPONDENT
McCarthy Tetrault
Ottawa, Ontario