Date: 20010530
Docket: T-124-00
Neutral Citation: 2001 FCT 556
Ottawa, Ontario, this 30th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
APPLICATION UNDER Section 44
of the Access to Information Act, R.S.C. 1985, c. A-1 as am.
BETWEEN:
JACQUES WHITFORD ENVIRONMENT LIMITED
Applicant
- and -
HER MAJESTY THE QUEEN as represented by
the Minister of National Defence
Respondent
[1] The applicant brings this application pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1, (the "Act"), for review of a decision of the respondent dated January 5, 2000. In its decision, the Department of National Defence (the "DND") decided to disclose certain records pertaining to the applicant and the ISO 14000/1 accreditation of a military flight training monitoring program at 5 Wing Goose Bay.
Background Facts
[2] In a letter dated October 20, 1998, the applicant, Jacques Whitford Environment Limited, submitted an unsolicited proposal (the "unsolicited proposal") to the DND. The unsolicited proposal was drafted in response to a need that the applicant perceived the DND might have, even though that perceived need had not been the subject of a public call for tenders. Among other things, the unsolicited proposal contained a description of methodology to be employed for the perceived need of the DND. There is some dispute between the parties as to whether the unsolicited proposal was in draft form and whether it contained a request that it be reviewed with comments before being finalized.
[3] The unsolicited proposal was not accepted by the DND. However, the DND did issue a call for abbreviated proposals in relation to work of a similar scope to that suggested in the unsolicited proposal on or about December 24, 1998, to which the applicant responded. The abbreviated proposal did not contain a description as to the methodology to be employed.
[4] On November 30, 1998, the DND received a request for all documents related to "DND efforts to obtain ISO 14000/1 accreditation regarding military flight training monitoring program at 5 Wing Goose Bay." Upon review of the records relevant to the request, the DND determined that these records contained what was believed to be "third party information" which pertained to the applicant. By facsimile dated January 8, 1999, the applicant was informed of the request and DND's intention to exclude the unsolicited proposal (now subject of this application) pursuant to paragraphs 20(1)(b) and (c) of the Act. The applicant responded by requesting that the unsolicited proposal not be disclosed.
[5] In early March, 1999, pursuant to the request made, the DND released some information but not the unsolicited proposal. Later that month, the DND was advised by the Office of the Information Commissioner that it was investigating complaints arising from the request for information. By letter dated October 26, 1999, the DND advised the applicant that it now believed the unsolicited proposal should be released and invited submissions to the contrary. Submissions were made, however, by letter dated January 5, 2000, the applicant was advised that the DND had decided to release the unsolicited proposal. The decision states in part the following:
As you are aware, the Office of the Information Commissioner is investigating a complaint against the exemptions applied for the protection of information in the enclosed documents. This department did review representations made in your letter to us dated 18 August 1999, in conjunction with your letter dated October 4, 1999 to Mr. George Sluzar, investigator, concerning protection of documents pursuant to section 20(1)(b)(c) and (d) of the AIA. Discussions and review of material, have been held with Mr. Sluzar and the department is now of the view that further information should be released in the absence of rationale that meets the criteria of section 20(1). Therefore, as per paragraph 28(1)(b) (copy attached) of the Act, we have decided to disclose the information. Personal information will continue to be protected under section 19(1) of the Act.
Grounds for the Application
[6] The applicant outlines the grounds as follows:
1. Disclosure of the records is precluded by paragraph 20(1)(b) of the Act because they contain financial, commercial, scientific or technical information that is confidential information supplied to the Department of National Defence by the applicant and that is treated consistently in a confidential basis by the applicant.
2. Disclosure of the records is precluded by paragraph 20(1)(c) of the Act because their disclosure could reasonably be expected to result in material financial loss or prejudice the competitive position of the applicant.
Issues
[7] The applicant frames the issues as follows:
3. Is the unsolicited proposal information that is financial, commercial, scientific or technical in nature; as well as confidential; that was supplied to a government institution by the applicant; and consistently treated as such exempt from disclosure pursuant to paragraph 20(1)(b) of the Act?
4. Is there a reasonable probability of material financial loss to the applicant or prejudice to the competitive position of the applicant pursuant to paragraph 20(1)(c) of the Act if the unsolicited proposal is released?
5. If this Honourable Court should conclude that the whole of the unsolicited proposal is not exempt from disclosure, should some of the information contained therein be severed from the balance prior to the non-exempt information's disclosure?
Applicant's Submissions
[8] The applicant submits it bears the onus of establishing that the requested records should not be disclosed: Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1989), 30 C.P.R. (3d) 473 (F.C.T.D.).
[9] Paragraph 20(1)(b) of the Act
The applicant submits the case of Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.), where Justice MacKay noted that requested records must meet the following four criteria for them to be exempt from disclosure under paragraph 20(1)(b); namely, that the information contained in the requested records must be:
6. financial, commercial, scientific or technical information;
7. confidential information;
8. supplied to a government institution by a third party; and
9. treated consistently in a confidential manner by the third party.
[10] Financial, Commercial, Scientific or Technical Information
The applicant submits that in Air Atonabee, supra, Justice MacKay was content to accept ordinary dictionary meanings in holding at page 208 that "it is sufficient for purposes of subsection 20(1)(b) that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms are commonly understood."
[11] The applicant further submits that the point of whether or not a proposal submitted by a company in response to a Request for a Proposal by the Department of the Secretary of State, was not specifically addressed by Justice Strayer (as he then was) in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.). The applicant, however, argues that it appears as though it was taken as a given that the proposals in issue did constitute "commercial information."
[12] The applicant also offers Keddy v. Atlantic Canada Opportunities Agency (1993), 66 F.T.R. 227 (F.C.T.D.), where Justice MacKay held that requested records described as "the financial information, suggested pricing, suggested form of development, suggested marketing and projected demand of the hotel units," constituted either financial or commercial information. The applicant thus submits that in this context, there is little question that the requested records are commercial information within the meaning of paragraph 20(1)(b) of the Act. The requested records lay out a proposed scope of work, an approach and methodology to be employed, and a price estimate for the proposed work. The applicant is in the business of providing the type of work laid out in the requested records and it secures such work in a competitive environment. Thus, the applicant submits the requested records relate directly to its commercial operations.
[13] Confidential Information
The applicant submits Justice MacKay summarized the law on this point in Air Atonabee, supra at page 208:
The second requirement under subsection 20(1)(b), that the information be confidential, has been dealt with in a number of decisions. These establish that the information must be confidential in its nature by some objective standard which takes account of the content of information, its purposes and the conditions under which it was prepared and communicated (per Jerome A.C.J., in Montana, supra, at page 25). It is not sufficient that the third party state, without further evidence, that it is confidential (see, e.g., Merck Frosst Canada Inc., supra; Re Noel and Great Lakes Pilotage Authority Ltd. et al. (1987), 45 D.L.R. (4th) 127 (F.C.T.D.)). Information has not been held to be confidential, even if the third party considered it so, where it has been available to the public from some other source (Canada Packers Inc. v. Minister of Agriculture, [1988] 1 F.C. 483 (T.D.) and related cases, appeal dismissed with variation as to reasons on other grounds, [1989] 1 F.C. 47 (F.C.A.)), or where it has been available at an earlier time or in another form from government (Canada Packers Inc., supra; Merck Frosst Canada Inc., supra). Information is not confidential where it could be obtained by observation albeit with more effort by the requestor (Noel, supra). As outlined by Jerome A.C.J. in earlier cases dealing with subsection 20(1)(b):
It is not sufficient that [the applicant] considered the information to be confidential.. It must also have been kept confidential by both parties and must not have been otherwise disclosed, or available from sources to which the public has access.
(Maislin Industries Ltd. v. Minister for Industry, Trade and Commerce et al., [1984] 1 F.C. 939; 10 D.L.R. (4th) 417, 80 C.P.R. (2d) 253 (T.D.) at p. 257 C.P.R.); (DMR Associates v. Minister of Supply & Services (1984), 11 C.P.R. (3d) 87 at 91 (F.C.T.D.)).
And further at page 210:
This review leads me to consider the following as an elaboration of the formulation by Jerome A.C.J., in Montana, supra, that 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.
The applicant submits this latter passage was applied by Denault J. in Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 (F.C.T.D.), although it was noted there that the foregoing points should be used as indicia of confidentiality, rather than conditions thereof.
[14] The applicant submits the requested records were submitted with a legitimate exception of confidentiality. The unsolicited proposal was only in draft form as there was an expectation that the DND would provide comments following its review. The applicant argues it was not reasonably intended to be released to a wide, indiscriminate group. The requested records were sent on an informal basis and were therefore unsolicited. In other words, according to the applicant, the requested records were not submitted as part of a formal, or even informal, public tender process.
[15] The DND originally determined not to publically release the unsolicited proposal. According to the applicant, this points to the fact that the DND also treated the information as confidential. The applicant also notes that the information is not publically available from another source.
[16] The applicant refers to Société Gamma Inc., supra, where Justice Strayer (as he then was) stated at page 46 that "there may be much to be said for proposals and tenders being treated as confidential until a contract is granted . . .". The applicant submits the unsolicited proposal was not accepted in this case, and that while a public call for abbreviated proposals was issued by the DND, the applicant did not disclose (nor was it required to disclose) the very information for which disclosure is now being sought.
[17] Supplied to a Government Institution by a Third Party
The applicant submits it provided the unsolicited proposal to the DND.
[18] Treated Consistently in a Confidential Manner by the Third Party
The applicant submits this point has essentially been dealt with in its submissions under "confidential information." The applicant emphasizes that it has not publically revealed the methodology detailed in the unsolicited proposal. Thus, in the circumstances, the applicant submits the unsolicited proposal should be exempted from disclosure pursuant to paragraph 20(1)(b) of the Act.
[19] Paragraph 20(1)(c)
Although a significant number of cases have considered paragraph 20(1)(c) of the Act, the applicant submits that the leading case appears to be Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (F.C.A.), in which Justice MacGuigan stated at page 60 that "I believe one must interpret the exceptions to access in paragraphs (c) and (d) to require a reasonable expectation of probable harm." The applicant submits this interpretation was subsequently reaffirmed in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.). The applicant also submits the following passage from Canada (Information Commissioner), supra, at page 679:
Thus while the law is clear, and there is no dispute as to the test to be applied, determining just what constitutes a "reasonable expectation of probable harm" will invariably give rise to serious disagreement, as it has in the present case.
[20] The applicant notes that there is no requirement of expert evidence, particularly where a reasonable expectation of probable harm is obvious from the affidavit material filed by the parties. Perez Bramalea Ltd. v. National Capital Commission, [1995] F.C.J. No. 63, T-2572-91, T-611-92, and T-1393-93 (January 18, 1995) (F.C.T.D.) is offered in support of this submission.
[21] The applicant also cites Culver v. Canada (Minister of Public Works & Government Services), [1999] F.C.J. No. 1641, T-1390-98 (October 27, 1999) (F.C.T.D.), where Culver requested a copy of the contracts between Standard Aero Ltd. and the Department of Public Works and Government Services in respect to the repair, overhaul and modification of certain jet engines. Standard Aero objected to the release of information in the contracts which disclosed pricing, fees, descriptions and other information. Standard Aero alleged disclosure of such information would provide its competitors with an unfair advantage in future government and commercial bids. The government department agreed to withhold the information and Culver subsequently brought the application for disclosure. McGillis J. concluded as follows at paragraph 17:
I am satisfied, following my review of all of the evidence in the record, that the Minister has established, on a balance of probabilities, that Standard Aero has a "reasonable expectation of probable harm". In his evidence, Mr. Ozog indicated that the information in question would enable its competitors "to calculate various pricing scenarios in order to undercut" it on the contract with the Department "or on other contracts". Furthermore, the release of the information would provide its competitors, in a fiercely competitive global industry, with "an important piece of financial and commercial information and intelligence". The prejudicial effect of the disclosure of that information would be magnified by virtue of the fact that Standard Aero would have no access to similar information on the part of its competitors. As a result, "Standard Aero would be placed in a position of competitive disadvantage". Those key aspects of the evidence of Mr. Ozog were not challenged or undermined in any manner on cross-examination. In my opinion, the evidence of Mr. Ozog, when considered in its entirety, establishes, on a balance of probabilities, that the disclosure of the information "...could reasonably be expected to prejudice" the competitive position of Standard Aero. In other words, the evidence establishes a reasonable expectation of probable harm on the part of Standard Aero.
[22] In Prud'homme v. Agence canadienne de développement international et al. (1994), 85 F.T.R. 302 (F.C.T.D.), the applicant, the prime mover of Agric Air Inc.'s main competitor, sought disclosure of Agric Air's contract with the Canadian International Development Agency (CIDA) in respect of a permanent offer of consultant and professional services regarding an aerial spraying locust control program in Western Africa. CIDA had previously refused to disclose a number of appendices to the contract. Justice Pinard stated the following at pages 305-306:
The evidence in the record is sufficiently persuasive for me to conclude that the rates contained in the financial clauses in clauses 1.2 to 1.8 of Appendix C and the list of Agric Air Inc. staff on page 7 of Appendix D of the agreement are information which represents the specific expertise acquired by Agric Air Inc. as the result of significant investments of time and money in a very specialized field. Similarly, I am satisfied that it is on account of its special expertise and its specialized staff that Agric Air Inc. was able to obtain its certification as a consultant and supplier of services to CIDA, a certification which the applicant seeks but has not yet obtained for the very reason that it lacks expertise and specialized staff in this field. Agric Air Inc. is also registered for contracts issued by the FAO, USAID and the World Bank. As I see it, disclosure of all this information to the applicant in the circumstances would amount to giving Agric Air Inc.'s main competitor the results of the exceptional know-how possessed by the latter business in the field of aerial spraying and the related consultation.
Against this entire background resulting from the evidence submitted by Agric Air Inc. to CIDA, which was significantly corroborated by the applicant himself throughout his cross-examination on affidavit, the fear expressed by Agric Air Inc. that disclosure of the information would adversely affect its ability to compete seems fully justified to me. In view of the very nature of the information sought, its potential use and the confidentiality with which it has been consistently treated, therefore, I consider that in the circumstances its disclosure to the applicant would involve a "reasonable expectation of probable harm" for Agric Air Inc.
[23] In Société Gamma Inc., supra, the applicant third party operated a translation service and sought an order preventing the government department with whom it contracted, from disclosing its proposals for translation services submitted in response to what amounted to a call for tenders. The Court ultimately found that the requirements of paragraph 20(1)(c) of the Act had not been meet by the third party. However, according to the applicant, it must be noted that in Société Gamma Inc., supra, the government department had already agreed to delete much of the information concerning personnel or removed their identification for the protection of their privacy. The governmental department had also already agreed to delete details of the equipment possessed by the applicant, the capacity of its translators in terms of annual production, certain other details concerning its human resources, and proposed prices per word to be paid under the contract.
[24] The applicant submits that this case is comparable to both Culver and Prud'homme, supra, where the third party information was not ordered disclosed (although in Culver, supra, the contract in issue had already been entered into by the parties). Should the type of work for which the applicant's unsolicited proposal related to be the subject of a public call for tenders, any competitor for that work would have the advantage of the prior work invested by the applicant in developing its unique methodology in relation thereto. The applicant, unlike the situation in Prud'homme, supra, is not aware of the identity of the person requesting the information. However, according to the applicant, once the information is disclosed, it will make little difference as to who requested the information as it will already be in the public domain. The applicant thus argues the playing field will not be even and consequently, there is a reasonable expectation of probable harm.
[25] Severance
To the extent that this Court should find that part of the information in the requested records should be disclosed, the applicant offers section 51 of the Act and suggests that it be read in conjunction with section 25.
[26] The applicant offers Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (F.C.T.D.), where the question of reasonableness of severability was raised. In Montana, supra, Jerome A.C.J. held that if a document would be virtually blacked out, thereby removing the context of the remainder, such severance would not be reasonable as "the effort such severance would require on the part of the Department is not reasonably proportionate to the quality of access it would provide."
[27] The applicant also argues that the case of Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (F.C.T.D.) suggests that deletion of exempted information which nevertheless remains "meaningful" and "does not distort the sense of the original [document]," constitutes reasonable severance. Finally, the applicant cites Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (F.C.T.D.), where Jerome A.C.J. held that "disconnected snippets of releasable information taken from otherwise exempt passages are not, in my view, reasonably severable" because what is disclosed may "be meaningless or misleading as the information it contains is taken totally out of context" and what remains "may provide clues to the contents of the deleted portions."
[28] The applicant submits there is no particular reason why some of the information cannot be severed from the balance, thereby allowing some of it to be released while exempting those portions which should be exempted pursuant to paragraphs 20(1)(b) and/or (c). Without mentioning the exact particulars of the document itself, the applicant argues that the sections dealing with the scope of the work, the approach and methodology to be employed, and the schedule and price estimate should be exempted from release.
Respondent's Submissions
[29] Purpose of the Act
The respondent submits subsection 2(1) of the Act clearly states that its purpose is to provide the public with a right of access to information in the records of the government, and that exceptions to the right of access should be limited and specific. The respondent submits the basic principle of the Act has been held to mean that public access ought not be frustrated by the courts except in the clearest of circumstances, and that the burden of persuasion rests upon the party resisting disclosure. However, the respondent submits the right of access is not absolute, and must be examined in the light of the other provisions of the Act and the exemptions contained therein: Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (F.C.A.); affirmed (1996), 191 N.R. 394 (S.C.C.).
[30] In reviewing the application of exemptions under the Act, the standard of proof to be applied with respect to paragraphs 20(1)(b) and (c) is, according to the respondent, that of a balance of probabilities.
[31] Paragraph 20(1)(b) of the Act
The respondent agrees that the information must meet the four criteria set out in Air Atonabee, supra, in order for it to be exempt from disclosure, and notes that it is not sufficient that a that a third party state, without further evidence, that it is confidential information. The respondent further submits that it must be objectively established that the information is confidential. Société Gamma Inc. and Maislin Industries, supra, are offered in support of this proposition.
The respondent argues the fact that the government and the third party have kept the information confidential to date, is merely one aspect of the test prescribed under paragraph 20(1)(b) of the Act. Société Gamma Inc., supra, is submitted in support of this argument. The respondent submits that it should also be considered whether the information was communicated with an expectation of confidentiality that it would not be disclosed, or with an express provision that it not be disclosed without permission. Keddy, supra and Occam Marine Technologies Ltd. v. National Research Council of Canada (1998), 155 F.T.R. 117 (F.C.T.D.) are submitted by the respondent in support of the above argument. The respondent also offers Montana Band of Indians, supra, for the proposition that whether the information is confidential depends upon its contents, purposes, and the circumstances in which it was compiled and communicated.
[32] Application of Paragraph 20(1)(b) to the Facts
The respondent argues that the applicant has failed to put forth any evidence to support its contention that the information should be exempted from disclosure. The affidavit of Michael Van Aanhout, in the respondent's submission, does not provide any evidence to support the applicant's contention that the information is confidential. The respondent submits that at best, the only evidence to support exemptions from disclosure are the comments made by the applicant to the respondent as part of the third party consultation process. These comments affirmed that the material is confidential, but provided no factual basis for the statements according to the respondent.
The respondent further submits the proposal was not sent with an express provision that it not be disclosed without permission; nor did it contain a provision stating that it was a draft to be finalized upon review by the respondent. Thus, the respondent submits the applicant's unsupported assertions fall short of the evidence required by the Court to determine that an exemption pursuant to paragraph 20(1)(b) of the Act is well founded on an objective basis.
[33] Paragraph 20(1)(c) of the Act
The respondent submits that although there must be a reasonable expectation of probable harm for an exemption under paragraph 20(1)(c), a direct link of causation between disclosure and the harm claimed need not be shown. The respondent submits Canada Packers, Saint John Shipbuilding and Société Gamma Inc., supra in support of this submission.
[34] The respondent argues that loss of revenue which is a very small percentage of the annual revenue, and is limited to a specific geographical area, may not amount to "material financial loss." Burns Meats Ltd. v. Canada (Minister of Agriculture) et al. (1987), 14 F.T.R 137 (F.C.T.D.) is cited in support of this argument. Moreover, the respondent argues an applicant does not demonstrate a reasonable expectation of probable harm from disclosure by simply affirming in an affidavit that disclosure would result in financial loss, and interfere with contractual and other relations. The respondent cites SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 (F.C.T.D.) and Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 264 (F.C.T.D.) and submits that the Court requires further evidence that such outcomes are reasonably probable.
[35] Application of Paragraph 20(1)(c) to the Facts
The respondent submits that at best, the applicant's evidence is merely a reiteration of the test that has been set forth by the jurisprudence and lacks any evidence of the probable chance of those outcomes. Such bare statements, in the respondent's submission, do not provide the Court with the evidence to support a finding that such outcomes are reasonably probable.
[36] Severance
The respondent argues that once it is determined that some of the records are exempt, the head of the institution is required to determine whether any part of the record can be reasonably severed. Severance is not reasonable, according to the respondent, where what remains of the document is meaningless or misleading, due to the remaining information being taken out of context. The respondent submits that it has properly severed the proposal in question.
Relevant Statutory Provisions
[37] The relevant subsections of the Access to Information Act, R.S.C. 1985, c. A-1 state 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. |
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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 dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité; d) des renseignements dont 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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| 25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. |
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. |
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| 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. |
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. |
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| 51. Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate. |
51. La Cour, dans les cas où elle conclut, lors d'un recours exercé en vertu de l'article 44, que le responsable d'une institution fédérale est tenu de refuser la communication totale ou partielle d'un document, lui ordonne de refuser cette communication; elle rend une autre ordonnance si elle l'estime indiqué. |
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Analysis and Decision
[38] Issue 1
Is the unsolicited proposal information that is financial, commercial, scientific or technical in nature; as well as confidential; that was supplied to a government institution by the applicant; and consistently treated as such exempt from disclosure pursuant to paragraph 20(1)(b) of the Act?
In Air Atonabee Ltd. v. Canada (Minister of Transport), supra, MacKay J. noted that the requested records must contain four criteria in order to be exempt from disclosure under paragraph 20(1)(b) of the Act, namely the information contained in the requested records must be:
10. financial, commercial, scientific or technical information;
11. confidential information;
12. supplied to a government institution by a third party; and
13. treated consistently in a confidential manner by the third party
[39] At the hearing of this matter, I granted an order allowing the matter to be heard in camera.
[40] The parties agreed at the hearing that the requested documents met criteria 1, 3 and 4 as outlined in paragraph 38. I agree. This Court must now decide whether the document is confidential information. For ease of reference, I will repeat the remarks of MacKay J. in Air Atonabee, supra at pages 208 and 210, which read as follows:
The second requirement under subsection 20(1)(b), that the information be confidential, has been dealt with in a number of decisions. These establish that the information must be confidential in its nature by some objective standard which takes account of the content of information, its purposes and the conditions under which it was prepared and communicated (per Jerome A.C.J., in Montana, supra, at page 25). It is not sufficient that the third party state, without further evidence, that it is confidential (see, e.g., Merck Frosst Canada Inc., supra; Re Noel and Great Lakes Pilotage Authority Ltd. et al. (1987), 45 D.L.R. (4th) 127 (F.C.T.D.)). Information has not been held to be confidential, even if the third party considered it so, where it has been available to the public from some other source (Canada Packers Inc. v. Minister of Agriculture, [1988] 1 F.C. 483 (T.D.) and related cases, appeal dismissed with variation as to reasons on other grounds, [1989] 1 F.C. 47 (F.C.A.)), or where it has been available at an earlier time or in another form from government (Canada Packers Inc., supra; Merck Frosst Canada Inc., supra). Information is not confidential where it could be obtained by observation albeit with more effort by the requestor (Noel, supra). As outlined by Jerome A.C.J. in earlier cases dealing with subsection 20(1)(b):
It is not sufficient that [the applicant] considered the information to be confidential.. It must also have been kept confidential by both parties and must not have been otherwise disclosed, or available from sources to which the public has access.
(Maislin Industries Ltd. v. Minister for Industry, Trade and Commerce et al., [1984] 1 F.C. 939; 10 D.L.R. (4th) 417, 80 C.P.R. (2d) 253 (T.D.) at p. 257 C.P.R.); (DMR Associates v. Minister of Supply & Services (1984), 11 C.P.R. (3d) 87 at 91 (F.C.T.D.)).
And further at page 210:
This review leads me to consider the following as an elaboration of the formulation by Jerome A.C.J., in Montana, supra, that 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.
[41] The Van Aanhout affidavit states the following in paragraph 9:
THAT the unsolicited proposal was submitted on a confidential basis to the DND. A significant portion of the information contained therein is financial, commercial and technical information that JWEL consistently handles in a confidential manner in the normal course of its business.
A significant portion of the information contained in the unsolicited proposal is not publically available from any other source.
As well, the evidence of the respondent contained in the affidavit of Elco Ypma establishes that the respondent initially intended to exclude the document in question from the request for information. There has been no evidence submitted to refute the applicant's evidence that it handles such information in a confidential manner in the normal course of its business and that the information is not publicly available from any other source.
[42] I am satisfied that the applicant meets all of the criteria for confidential information, as outlined by MacKay J. in Air Atonabee, supra, subject to the exceptions listed in my discussion of severance. The confidential information in the document is not available from sources otherwise accessible by the public, nor could it be obtained by observation or independent study by a member of the public acting on his or her own. The confidential portion of the information in the document originated and was communicated in a reasonable expectation of confidence that it would not be disclosed. This information was developed by the applicant and submitted in response to a need that the applicant perceived the respondent might have. In my view, the information was communicated in a relationship that is not contrary to the public interest, and a relationship that is fostered for public benefit by confidential communication. I therefore find that the information contained in the unsolicited proposal, with the exceptions of the severed portion of the document, meets the requirements of paragraph 20(1)(b) of the Act and thus, shall not be disclosed.
[43] Issue 2
Is there a reasonable probability of material financial loss to the applicant or prejudice to the competitive position of the applicant pursuant to paragraph 20(1)(c) of the Act if the unsolicited proposal is released?
I am not satisfied that the evidence submitted allows the document (unsolicited proposal) to qualify for non-disclosure under paragraph 20(1)(c) of the Act. I have reviewed the affidavit of Michael Van Aanhout and I cannot find anything but the bald assertions that the applicant would be put at a competitive disadvantage and that it would suffer incalculable damages. For example, how probable is it that the applicant would be put at a competitive disadvantage or that it would suffer incalculable damages? Paragraph 20(1)(c) speaks of "could reasonably be expected to result in material financial loss or gain to . . .". Would the incalculable damage referred to in the affidavit "reasonably be expected to result in material financial loss . . ."? Thus, based on the evidence before me, I find that the unsolicited proposal does not qualify for non-disclosure under paragraph 20(1)(c) of the Act.
[44] Issue 3
If this Honourable Court should conclude that the whole of the unsolicited proposal is not exempt from disclosure, should some of the information contained therein be severed from the balance prior to the non-exempt information's disclosure?
I have given consideration to deleting portions of the documents that did not contain confidential information pursuant to paragraph 20(1)(b). I have taken guidance from Strayer J.'s (as he then was) decision in Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sport), supra, at pages 488 to 489. As agreed by the applicant, the following paragraphs are severed and will be disclosed pursuant to section 51 of the Act:
First paragraph of the document commencing with the words, "Thank you".
The second paragraph entitled "Background".
The third paragraph entitled "Rationale".
The last paragraph entitled "Closing".
Of course, the personal information covered by subsection 19(1) of the Act will not be disclosed.
[45] As each party has succeeded on one issue, there shall be no order as to costs.
ORDER
[46] IT IS ORDERED that:
1. The unsolicited proposal, except for the severed paragraphs
referenced in paragraph 44 of this decision, meets the requirements of paragraph 20(1)(b) of the Act and shall not be disclosed.
2. The unsolicited proposal does not meet the requirements of paragraph 20(1)(c) of the Act.
3. The paragraphs referenced in paragraph 44 of this decision shall be disclosed, but any personal information covered by subsection 19(1) of the Act will not be disclosed.
4. There shall be no order as to costs.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 30, 2001