Date: 20000107
Docket: T-1798-98
Ottawa, Ontario, the 7th day of January, 2000
Present: The Honourable Mr. Justice Pinard
Between
COOPÉRATIVE FÉDÉRÉE DU QUÉBEC and its poultry division
carrying on business under the name of ALIMENTS FLAMINGO
and
SOCIÉTÉ EN COMMANDITE OLYMEL
Applicants
and
AGRICULTURE AND AGRI-FOOD CANADA
and
BERNARD DRAINVILLE
Respondents
JUDGMENT
The application for review is dismissed without costs. However, I order that none of the records and information requested under the Access to Information Act shall at this time be disclosed by the respondent Agriculture and Agri-Food Canada ("Agriculture"). I further order that, with the exception of the confidential records whose disclosure I allowed in my order of November 30, 1999 that the hearing be partially in camera , all of the other confidential records at issue, the deposit of which in sealed envelopes was previously ordered by this Court, shall remain so sealed. Should my decision be appealed, the Federal Court of Appeal will determine the fate of the records. If no appeal has been filed by the expiration of the prescribed period, (1) the respondent Agriculture may disclose the requested documents to the respondent Bernard Drainville, as it stated it would do, and (2) the confidential records shall be removed from the sealed envelopes and placed in the public record in this case.
| J. |
Certified true translation
Bernard Olivier
Date: 20000107
Docket: T-1798-98
Between
COOPÉRATIVE FÉDÉRÉE DU QUÉBEC and its poultry division
carrying on business under the name of ALIMENTS FLAMINGO
and
SOCIÉTÉ EN COMMANDITE OLYMEL
Applicants
and
AGRICULTURE AND AGRI-FOOD CANADA
and
BERNARD DRAINVILLE
Respondents
REASONS FOR JUDGMENT
PINARD J.:
[1] The applicants are requesting, pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"), review of a decision dated August 28, 1998 by the respondent, the Access to Information and Protection of Privacy Unit of the Department of Agriculture and Agri-Food Canada, authorizing the disclosure of records in response to a request for access to information sent to the Canadian Food Inspection Agency concerning some facility inspection reports. The access to information request, which was made pursuant to section 4 of the Act, was made by the respondent Bernard Drainville on May 11, 1998, and essentially reads as follows:
| [Translation] |
| Please send me a copy of the audit reports for Quebec facilities that have been graded B, C or F by the Canadian Food Inspection Agency during the period commencing the first (1st) of January 1996 inclusive. I am referring here to all food or agro-food facilities situated in Quebec and inspected by the Canadian Food Inspection Agency. |
| I would also like to receive a copy of the "facility inspection reports" (AGR 1427 for all of the facilities graded B, C or F by the Canadian Food Inspection Agency since the first (1st ) of January 1996. I would like the inspection reports dating up to three months BEFORE the imposition of the B, C or F grade. |
| Please send me as well a copy of the names of facilities in Ontario, Alberta and British Columbia that have been graded B, C or F by the Canadian Food Inspection Agency since January 1, 1996. |
[2] On July 27, 1998 the respondent Agriculture and Agri-Food Canada ("Agriculture") sent the applicants a notice of intention to disclose these records in accordance with subsection 27(1) of the Act. The applicants replied by letter on August 27, 1998, objecting to the disclosure of the inspection reports in question. Citing the complexity and vagueness of the information, and its confidential and prejudicial nature, the applicants requested the benefit of the exemptions prescribed in paragraphs 20(1)(c ) and (d) of the Act. In regard to the precise nature of the apprehended harm, the applicants referred to media coverage, the financial consequences of disclosure and the impact these things would have on their competitive position and future contracts.
* * * * * * * * * * * *
[3] The issue is therefore whether the disclosure of the requested records and information should be refused pursuant to paragraphs 20(1)(c) and (d)of the Act.
* * * * * * * * * * * *
[4] The relevant provisions of the Act read 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) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. 20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
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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. (2) La présente loi vise à compléter les modalités d"accès aux documents de l"administration fédérale; elle ne vise pas à restreindre l"accès aux renseignements que les institutions fédérales mettent normalement à la disposition du grand public. 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 :
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[5] It is clear law that under the Act disclosure is the general rule and exemption the exception, and that the burden is on those who claim an exemption to prove their entitlement in this regard. The leading decision on the construction of paragraphs 20(1)(c) and (d) of the Act is the judgment rendered by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture et al.), [1989] 1 F.C. 47, in which MacGuigan J.A. writes, at p. 60:
The words-in-total-context approach to statutory interpretation which this Court has followed in Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346; (1985), 60 N.R. 321 and Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494 requires that we view the statutory language in these paragraphs in their total context, which must here mean particularly in the light of the purpose of the Act as set out in section 2.5 Subsection 2(1) provides a clear statement that the Act should be interpreted in the light of the principle that government information should be available to the public and that exceptions to the public"s right of access should be "limited and specific". With such a mandate, I believe one must interpret the exceptions to access in paragraphs (c ) and (d) to require a reasonable expectation of probable harm .6
___________________
5 The same "could reasonably be expected to" phrase is found in sections 16, 17 and 18, but 1 believe that only subsection 2(1) is decisive as to its meaning.
6 This is not unlike the test adopted by Lacourcière J. in a different context in McDonald v. McDonald, [1970] 3 O.R. 297 (H.C.), at p. 303, that "Reasonable expectation . . .implies a confident belief".
[6] The Federal Court of Appeal reconfirmed this interpretation in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315, at page 316:
| In applying that text to the material before him, the judge [24 F. T. R. 32, 12 A. C. W. S. (3d) 51] followed the guidelines laid down by MacGuigan J.A. for this court in Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), 53 D. L. R. (4th) 246, 26 C.P.R. (3d) 407, [1989] 1 F.C. 47, where he said, at p. 255: "I believe one must interpret the exceptions to access in paras. (c ) and (d) to require a reasonable expectation of probable harm." (The emphasis is in the original.) |
| The applicant now invites us to say that this is wrong, first, because para. (c), while conveying the notion of "prejudice" (or harm), does not set so high a threshold as probability and, second, because para. (d ) speaks only of interference and does not require any showing of harm at all. We do not agree. The setting of the threshold at the point of probable harm seems to us to flow necessarily from the context, not only of the section but of the whole statute, and is the only proper reading to give to the French text ("risquerait vraisemblablement de causer des pertes"): compare Re Kwiatkowsky and Minister of Manpower & Immigration (1982), 142 D.L.R. (3d) 385 at p. 391, [1982] 2 S.C.R. 856, 45 N. R.116, per Wilson J. |
[7] At page 316 of this judgment, the Federal Court of Appeal was even more specific in regard to paragraph 20(1)(d): it said the potential interference with negotiations must be serious in nature, since the word "interfere" must be understood in the sense of "obstruct":
| As to the notion of interference, we think that in order to justify an application by a third party under s. 44 there must necessarily be an interference whose consequences will likely be damaging to that party. "Interference" is used here in its sense of "obstruct" ("entraver", in French), much as it is in sports parlance, when the player is penalized for "interference". Here again, the threshold must be that of probability and not, as the appellant would seem to want it, mere possibility or speculation. |
[8] It is therefore with all of these principles clearly in mind that I have considered in this case the information requested and the exemptions relied on. In fact, I unsealed and carefully examined all of the relevant documents. I observed that the information requested is chiefly related to some inspection reports on certain facilities operated in Quebec by the applicants. As it happens, the Coopérative fédérée du Québec has a poultry division that bears the name Aliments Flamingo. It operates nine poultry plants: four abattoirs and five processing plants as well as two distribution centres. The applicant Société en commandite Olymel, for its part, is reputedly the largest hog slaughterhouse undertaking in Canada. It operates three hog slaughterhouses and three pork processing plants in Quebec, as well as two distribution centres, one in Quebec and the other in Ontario.
[9] It is interesting to note that the documents in question consist of inspection reports of the same type as those considered by the Federal Court of Appeal in Canada Packers, supra. After reviewing the reports in question, the Court of Appeal, in this other case, stated at pages 64 and 65:
| In the cases at bar, I have carefully scrutinized each report and have also considered them in relation to the others requested. (I refrain from explicit comment on their contents to preserve their confidentiality through the time for appeal). I would say in summary form that, although all are negative to some degree, I am satisfied in each case that, particularly now, years after they were made, they are not so negative as to give rise to a reasonable probability of material financial loss to the appellant, or of prejudice to its competitive position or of interference with its contractual or other negotiations.... The appellant has not, therefore, met the onus on it to establish that the reports should not be released. |
[10] I think it is appropriate to apply the essence of these remarks to the case at bar. Indeed, of the some 24 records in dispute, the most recent dates from 1998. The documents in relation to the inspection reports indicate in several places that the applicants have taken remedial measures. The disputed reports are periodic reports dating back one to three years and strictly concerned with the state of the facility visited, not the quality of the product found therein.
[11] To my way of thinking, access to information should not be prohibited solely because it might be unfavourable to the persons it concerns. This is especially true when, as it happens, the information has to do with the state of facilities as a result of things done by the applicants, who operate them. What they had to establish, in order to prevent the public disclosure of this information under paragraphs 20(1)(c) and (d) of the Act, was that the information is so unfavourable that its disclosure could give rise to a reasonable probability of material financial losses to them, or to prejudice their competitive position or interfere with contractual or other negotiations (see Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare et al.) (1988), 20 F.T.R. 73, at p. 78).
[12] The media reports in April 1998 on the Flamingo poultry abattoir in Joliette were of course prejudicial to Aliments Flamingo but are not related to the particular facts of this case. In the circumstances, the Court cannot, of course, presume unfair treatment of the particular information that Agriculture says it is prepared to disclose in this case. Whatever the case, the applicants are certainly not unaware of the right to damages that might accrue to them for any bad faith in the dissemination of the information, given the delictual liability that such fault would entail. In the circumstances, therefore, the merit in avoiding the risk of suppression of legitimate comment outweighs the risk of wrongful comment. And that, moreover, was the approach taken by the Quebec Court of Appeal when it had to consider such fundamental values as freedom of expression and freedom of the press in Champagne v. Collège d"enseignement général et professionnel de Jonquière, [1997] R.J.Q. 2395, in which Mr. Justice Rothman writes, at p. 2400:
| At this stage, we have no way of knowing what the deference to the action will be, much less what the evidence and arguments in law will be. Nor do we know what statements Champagne will make on his radio program in the future. While some of his past statements, if untrue, may appear abusive, we do not know his position on these. Will he allege truth? Fair comment on a matter of public interest? Good faith? Absence of malice? We simply do not know any of these things. |
| To restrain all critical and negative comment about the college would amount to prior restraint of the unknown. Some of his past comments may have been perfectly legitimate. Some may have been damaging but made in good faith and in the public interest. Some of the comments are matters of opinion, some are statements of fact. Some of the statements may ultimately be found to be abusive, defamatory and unjustifiable. If that is the case, damages may be awarded to compensate the college for any injury to its reputation and, if warranted, exemplary damages may be awarded as well. |
| But until these issues have been determined, I do not see how the courts can restrain abusive comments, in advance and before they are made, without risking the suppression of legitimate comment.(9) |
| (9) Picard v. Johnson & Higgins Willis Faber Ltée, [1988] R.J.Q. 235 (C.A.), 239. |
[13] In the same vein, my colleague Mr. Justice Noël stated in Matol Botanique International Ltée v. Canada (Minister of National Health and Welfare) et al. (1994), 84 F.T.R. 168, at p. 178:
| Despite this, the applicant attributes malevolent intention to media organizations and asserts that the information in question will be conveyed in an unbalanced manner for the purpose of discrediting its business. I believe that, here again, this is an unfounded assertion. While I am prepared to accept the fact that the media sometimes convey information in a tendentious manner, I cannot assume, without any evidence to that effect, that they will act in bad faith or that they wish to discredit the applicant"s business. |
[14] Nor can I presume the inability of the general public to correctly interpret the information contained in the inspection reports at issue, especially when Agriculture intends to incorporate the following paragraph in the body of the letter accompanying the information for the respondent Drainville:
[Translation]
The major purpose of the audit and inspection reports is to identity weaknesses in the facilities and operations in order that the Management of these facilities can carry out the appropriate corrective measures. They contain objective observations on the conditions that existed in the facility at the time of the inspection but not necessarily those existing at present. The gradual wear and tear on equipment and the normal deterioration of buildings necessitate repairs and regular maintenance, and it is virtually impossible to have facilities that are problem-free. The reports do not reflect the facility"s operations as a whole and do not report on conditions that might be considered satisfactory.
[15] In this context, I find no real basis in the evidence for the applicants" straightforward statements as to the financial consequences of disclosure of the information and its impact on their competitive position, or the consequences of such disclosure on future contracts. In my opinion, these are mere conjectures that fail to meet the test of "reasonable expectation of probable harm" (Saint John Shipbuilding Ltd. , supra).
[16] Finally, although the applicants do not specifically rely on the exemption contained in paragraph 20(1)(b) of the Act, they do treat the inspection reports as confidential. In this regard, suffice it to recall that these records are collected by a government agency and in legal terms constitute records of the Government of Canada subject to the Act (see the recent decision of the Federal Court of Appeal in The Information Commissioner of Canada and The President of the Atlantic Canada Opportunities Agency (November 17, 1999), A-292-96).
[17] For all these reasons, I am of the opinion that the applicants have not managed to discharge the onus they had of establishing that the documents requested under the Act contain the type of information covered in paragraphs 20(1)(c) and (d) of the Act. To avoid any conflict with the purpose of the review under section 44 of the Act, I have referred in general terms only to the records covered by their application. I therefore order that none of the records requested pursuant to the Act shall at this time be disclosed by the respondent Agriculture. I further order that, with the exception of the confidential records whose disclosure I allowed in my order of November 30, 1999 that the hearing be partially in camera, all of the other confidential records at issue, the deposit of which in sealed envelopes was previously ordered by this Court, shall remain so sealed. Should my decision be appealed, the Federal Court of Appeal will determine the fate of the records. If no appeal has been filed by the expiration of the prescribed period, (1) the respondent Agriculture may disclose the requested documents to the respondent Bernard Drainville, as it stated it would do, and (2) the confidential records shall be removed from the sealed envelopes and placed in the public record in this case.
[18] There is no ruling as to costs, as neither the applicant nor the respondent have made any such request.
| J. |
OTTAWA, ONTARIO
January 7, 2000
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: T-1798-98 |
| STYLE: COOPÉRATIVE FÉDÉRÉE DU QUÉBEC ET AL. v. |
| AGRICULTURE AND AGRI-FOOD CANADA ET AL. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 30, 1999 |
REASONS FOR ORDER OF PINARD J.
DATED: January 7, 2000
APPEARANCES:
Paule Hamelin FOR THE APPLICANT
| Rosemarie Millar FOR THE CORPORATE RESPONDENT |
Bernard Letarte
| Sylvie Gadoury FOR THE OTHER RESPONDENT |
Judith Harvey
SOLICITORS OF RECORD:
| Desjardins Ducharme Stein Monast FOR THE APPLICANT |
Montréal, Quebec
| Morris Rosenberg, Deputy Attorney-General of Canada FOR THE CORPORATE RESPONDENT |
| Legal Services, Canadian Broadcasting Corporation FOR THE OTHER RESPONDENT |
Montréal, Quebec