Date: 20011105
Docket: T-587-00
Neutral citation: 2001 FCT 1202
BETWEEN:
SIEMENS CANADA LIMITED
Applicant
-and -
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT
SERVICES CANADA and ANITA LLOYD, in her capacity as
Coordinator, Access to Information and Privacy for Public Works
and Government Services Canada
Respondents
[1] The applicant seeks judicial review of a decision of the Minister of Public Works and Government Services Canada ("PWGSC") dated February 23, 2000 to release documents submitted by the applicant concerning PWGSC Solicitation No. 10 MC W8483-6-EFAA/A, In-Service Support for Halifax and Iroquois Class Ships, pursuant to the Access to Information Act, R.S.C. 1985, A-1 ("ATIA").
[2] The only issue is the effect of section 30 of the Defence Production Act R.S.C., 1985 c. D-2 ("DPA"). The question of standard of review had originally been an issue but is no longer an issue in light of the decision of Canada (Information Commissioner) v. Canada (Minister of Industry), [2001] F.C.J. No. 1327 (F.C.A.), also known as the Telezone case. Both parties agreed that correctness is the standard of review.
FACTS
[3] On November 4, 1998, PWGSC distributed a Request for Proposals ("RFP") in relation to Solicitation File No. 10 MC W8483-6-EFAA/A requesting proposals for the provision of in-service support on Halifax and Iroquois class ships for the Department of National Defence.
[4] The Minister is authorized by section 16 of the DPA to procure services and, as stated in (g), to:
| do all such things as appear to the Minister to be incidental to or necessary or expedient for the matters referred to in the foregoing provisions of this section or as may be authorized by the Governor in Council with respect to the procurement, construction or disposal of defence supplies or defence projects. |
prendre toute autre mesure qu'il juge accessoire, nécessaire ou utile aux matières visées au présent article ou que le gouverneur en conseil peut autoriser en ce qui a trait à la fourniture, la construction ou l'aliénation de matériel de défense ou d'ouvrages de défense. |
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[5] Paragraph C5.0 of the RFP states that:
The Contract is a defence contract within the meaning of the Defence Production Act and shall be read accordingly.
According to the respondent, paragraph C5.0 of the RFP is included in the contracts PWGSC negotiates on behalf of the Department of National Defence to ensure that the Minister of Public Works and Government Services Canada, who exercises wide ranging powers under the DPA relating to the procurement, production and disposal of defence supplies and projects, has enough flexibility to fulfil his or her responsibilities under the DPA.
[6] One of the preconditions for a company to be eligible to be awarded the contract, as outlined in paragraph 1.5, section B of the RFP, was that the company, prior to the award of any contract, obtain valid security clearances. The applicant submitted a proposal in response to the RFP and on October 8, 1999 was awarded the contract.
[7] After the contract was awarded to the applicant, one of the unsuccessful bidders made a request under the ATIA for records held by PWGSC in relation to the applicant's participation in the solicitation process.
[8] On November 26, 1999, the Access to Information and Privacy ("ATIP") Coordinator, whose job it is to review such requests, informed the applicant that a request for information had been received and that the applicant had the right to make submissions to PWGSC as to why its documents should not be released.
[9] On January 5, 2000, the applicant responded to the ATIA request for submissions by providing the ATIP Coordinator with a list of the documents that the applicant did and did not object to disclosing and the grounds under section 20 of the ATIA on which it relied.
[10] On January 18, 2000 the applicant wrote to the ATIP Coordinator again, stating that the applicant was withdrawing its previous consent to disclosure under the ATIA and adopting the position that none of the documents should be disclosed pursuant to subsection 24(1) of the ATIA on the ground, among others, that such disclosure would violate section 30 of the DPA. The applicant also objected to the release of the records on other grounds which are not in issue here.
[11] On February 23, 2000, PWGSC notified the applicant that it had considered its various arguments and had determined that the documents were only partially exempt by virtue of subsection 19(1) and subparagraphs 20(1)(b)(c), and that subsection 24(1) did not apply.
ANALYSIS
[12] I must now review the relevant sections of the ATIA and DPA. Subsection 24(1) of the ATIA provides as follows:
| 24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II. |
24. (1) Le responsable d'une institution fédérale est tenu de refuser la communication de documents contenant des renseignements dont la communication est restreinte en vertu d'une disposition figurant à l'annexe II. |
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Section 30 of the DPA is incorporated by reference in Schedule II.
[13] Section 30 of the DPA reads as follows:
| 30. No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business, except ... |
30. Les renseignements recueillis sur une entreprise dans le cadre de la présente loi ne peuvent être communiqués sans le consentement de l'exploitant de l'entreprise, sauf_: ... |
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The two exceptions are not relevant in the case before me.
[14] In any case, where the ATIA is relevant, it is important to keep in mind the purpose as set out in subsection 2(1):
| 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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[15] McDonald J.A. in Rubin v. Canada (Minister of Transport) (C.A.), [1998] 2 F.C. 430 expanded on the importance of limiting the exemptions by first quoting from La Forest J. in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at pages 433-434:
Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to "any record under the control of a government institution" (s. 4(1)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.
Then, McDonald J.A. continues:
In my opinion, therefore, all exemptions must be interpreted in light of this clause. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. ...
It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it. ...
[16] It is also important to note that he concluded in that case by saying that Parliament could pass a broad exemption and I quote from paragraph 35:
In reaching my conclusion with regards to the correct interpretation of paragraph 16(1)(c), I am not unaware of the important role safety review reports play in the overall framework of ensuring safety for the public in the aeronautics industry. However, if, as the respondent suggests, there is a negative impact on the willingness of individuals to participate in these reviews due to public disclosure, then there is nothing to preclude Parliament from changing the Aeronautics Act to provide for wide-scale confidentiality protection, or, from adding these reviews to the section 24 category of broad exemptions in the Access to Information Act. ...
[17] There has been no interpretation of section 30 of the DPA. However, there is an interpretation of the predecessor section which was section 19 of the Department of Munitions and Supply Act S.C. 1940, c. 31. In R v. Northey, [1948] S.C.R. 135, the Court held:
It seems clear, that the prohibition contained in section 19 against disclosure of information obtained by virtue of the Act, applies to all information obtained by virtue of any section of the Act, whenever passed.
[18] In the decision letter of February 23, 2000, the ATIP Coordinator makes no mention of section 30. The respondent PWGSC takes the position that section 30 does not apply to the Siemens' documents in question here, as they are part of the solicitation of the contract, and not part of the actual contract. The respondent argues that it is only the contract itself that is considered to be the Defence Contract, and to which section 30 may apply. In my view, however, the language of section 30 is clear that "No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed ..."
[19] The information in this case was obtained "under or by virtue of this Act," since the Minister derives his or her authority to conduct procurements, and to do all such things as appear to be incidental to such procurements, from section 16 of the Act. It is irrelevant, in my view, if the information in question constituted part of the actual contract, or was obtained as a pre-condition of the contract. It was all obtained by the Minister acting under the authority given by the Act. Once the contract comes under the DPA then section 30 does not distinguish between documents which were part of the contract and documents which were part of the solicitation. Section 30 does not refer to information obtained in the contract. Thus, section 1.5 of the RFP which states in part:
... Security clearance must be in place prior to award of Contract.
does not take matters relating to security clearance outside section 30.
[20] Therefore, pursuant to section 30 of the DPA, the documents should not be disclosed since the applicant has not provided its consent. The respondent, the Minister of Public Works is not to disclose any of the applicant's records in connection with PWGSC Solicitation No. 10 W8483-6-EFAA/A In-Service Support for Halifax and Iroquois Class Ships.
[21] The application for judicial review is allowed. The decision of the respondent PWGSC dated February 23, 2000 is quashed. The applicant is awarded costs in the amount of $3,000.00.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
November 5, 2001