Docket: T-2214-04
Ottawa, Ontario, this 26th day of September, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
H.J. Heinz Company of Canada Ltd. and
James Friel
Applicant
and
Attorney General of Canada
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of two decisions of the Canadian Food Inspection Agency ("CFIA") to release information that was requested under the Access to Information Act (the "Act"). H.J. Heinz Company of Canada Ltd ("Heinz") is asking the Court to order that CFIA not release the records in question, or that they be disclosed with specific redactions.
BACKGROUND
[2] In August 2004, a request under the Act was made to CFIA for:
all submissions made by any party (including but not limited to H.J. Heinz Company of Canada Ltd., Food Processors of Canada, and the Consumers Association of Canada) to the Canadian Food Inspection Agency and/or Agriculture Canada since January 1, 2001, regarding the adequacy, inadequacy, advisability or legality of any restrictions on the format of containers, in terms of volume, weight or otherwise, for any food or drink, classified as infant or junior food under the Processed Products Regulations, including any submissions made regarding the treatment of container formats for infant and junior foods under the Processed Products Regulations or any proposal for the amendment or replacement of that regulation as it applied to the container formats of infant and junior food.
[3] CFIA identified the following documents are responsive to the request:
a) i) an e-mail from CFIA to Heinz attaching an email from Heinz to CFIA, dated 3/18/04;
ii) a letter from Heinz to CFIA, dated January 30, 2004;
iii) a letter from Heinz to CFIA attaching Heinz's "Comments on the Proposed Processed Products Regulations" dated April 29, 2003;
iv) an e-mail from Heinz to CFIA dated 13/10/04;
v) an e-mail from Heinz to CFIA dated 22/10/04;
vi) a facsimile cover sheet and letter dated April 29, 2003;
(collectively referred to as the "6 Documents")
b) a presentation made by Dr. Friel entitled "Infant Food Consumption Patterns: Focus on fruits and vegetables" (October 2004) (the "Presentation"); and
c) a study entitled "Infant and Junior Food for Healthy Living" ("the Study") presented to Health Canada at a meeting on July 15, 2004.
All of the above will be collectively referred to as the "Heinz Documents".
[4] Heinz responded to CFIA's proposed disclosure of the Heinz Documents pursuant to s. 20(1)(b) and 20(1)(c) of the Act. Heinz further suggested that in case CFIA disagreed with their request for complete denial of disclosure that portions of the Heinz Documents should be deleted and only redacted versions should be released. A protracted correspondence back and forth between Heinz and CFIA ensued.
[5] By letter dated November 25, 2004, CFIA informed Heinz of its decision to allow redacted copies of the 6 Documents and the Presentation to be released, and by letter dated December 1, 2004, advised of its decision to disclose the Study in its entirety.
[6] Heinz then applied for judicial review of the two CFIA decisions pursuant to s. 44 of the Act. These matters were started as separate judicial reviews, but were consolidated and ordered to be heard together by Prothonotary Aronovitch dated February 4, 2005.
STANDARD OF REVIEW
[7] It is well established that thestandard of review in Access to Information cases is correctness. (Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), 2003 FCA 257).
ISSUES:
[8] This case involves three issues:
1) Should the Heinz Documents be exempted pursuant to s. 20(1)(b) of the Act?
2) Should the Heinz Documents be exempted pursuant to s. 20(1)(c) of the Act?
3) Should the Study not be released as it is unresponsive to the access request?
Analysis
Issue 1: Should the Heinz Documents be exempted pursuant to s. 20(1)(b) of the Act?
[9] In AstraZeneca Canada Inc. v. Canada (Health), 2005 FC 189 Phelan J. stated so aptly:
48 The starting point of any analysis of the application of the Act to a given situation is the purpose clause found in subsection 2(1):
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.
* * *
Objet
2.(1)
La présente loi a pour object 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.
49 The Act has been given quasi-constitutional status along with such legislation as that governing human rights, linguistic rights and privacy. The purpose clause is both an interpretative tool and a benchmark for the application of the law to specific facts. Of particular importance in this instance is the phrase "that necessary exceptions to the right of access should be limited and specific"
50 The basic right of every citizen or permanent resident, set forth in section 4, is to have access to "any record under the control of a government institution". The right recognized is part of the basis entitlement of citizens in a democratic and open society to know what their government knows and what it is doing with that knowledge. (see Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403 at 427-428).
51 The principles applicable to the application of section 20 are reasonably well settled, in particular, by reference to such seminal cases as Air Atonabee Limited v. Canada (Minister of Transport) (1997) 27 F.T.R. 194 and Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 FC 47.
52 This Court has held that there is a heavy burden on the party attempting to prevent disclosure. (See Canada (Information Commissioner) v. Canada (Prime Minister) (1992), 49 CPR (3d) 79).
53 However, subject to limited exceptions not at issue here, the head of a government institution does not have a discretion under section 20. If the information falls within the specific description in paragraphs (1) (a) to (d), the head must refuse disclosure subject to the obligation to sever non-exempt information.
[10] As stated by Phelan J., the classic test for exclusion of information pursuant to s. 20(1)(b) and s. 20(1)(c) was pronounced by MacKay J. in Air Atonabee Ltd. v. Canada (Minister of Transport), (1989) 27 F.T.R. 194 at page 207:
In all there are six criteria set out in the two sections for assessing the records in question. The authorities relied upon by both counsel in relation to subsection 20(1)(b), and others, have made clear that exemption from disclosure under that subsection requires that the information in question meet all four of the following criteria: that it be
1) financial, commercial, scientific or technical information,
2) confidential information,
3) supplied to a government institution by a third party, and
4) treated consistently in a confidential manner by the third party.
In the case of subsection 20(1)(c) there are two circumstances under either of which, as alternatives to the criteria in other subsections and to each other, information is exempt from disclosure, that is:
1) where the disclosure of the information could reasonably be expected to result in material financial loss or gain to a third party, or
2) where the disclosure of the information could reasonably be expected to prejudice the competitive position of a third party.
Both of these latter circumstances require a reasonable expectation of probable harm (See Canada Packers Inc., supra, per MacGuigan J. at p. 60) and speculation or mere possibility of harm does not meet that standard (See Saint John Shipbuilding Limited v. The Minister of Supply and Services, (Unreported, Court File No. T-1682-87, October 3, 1988 (F.C.T.D.) per Martin J. at pp. 6-7).
[11] With respect to s. 20(1)(b) Heinz submits that the words in the first part of the test should be given a broad interpretation and should be applied by their commonly understood meanings. Heinz states that the Heinz Documents relate or pertain to Heinz's commercial operations. Heinz submits that information regarding the production of its products and its management strategy is commercial information.
[12] Heinz submits that the second part of the test, confidentiality, means that the information is not available from sources otherwise available to the public. Heinz places great emphasis on the fact that Heinz and CFIA have had a close working relationship. CFIA has a representative on-site at Heinz's production plant, and Heinz has on-going discussions with CFIA. Accordingly, the CFIA is privy to on-going confidential information. Heinz submits that this satisfies the second part of the test and also shows that it consistently treats any and all information that it submits to CFIA in a confidential manner.
[13] Heinz submits that the public is not aware as to whether Heinz did, or did not make, submissions to CFIA. Even if the Heinz Documents contain public information, having that public information disclosed would reveal its confidential regulatory strategy to competitors. Heinz further submits that parts 2 and 4 of the test do not require proof of harm.
[14] I find it very difficult to accept this argument. Heinz may have a close working relationship with CFIA but that relates to its operations; it has nothing to do with Heinz's regulatory policy. The 6 Documents and the Presentation were made in response to proposed amendments to the Processed Products Regulations. The access request specifically targets these submissions.
[15] Heinz, like any other company, can and should participate in the democratic process of making regulations that may affect it. To the extent that such submissions reveal any details about Heinz's operations, its marketing strategy or its future developments, they are of course confidential and should be protected. But that is not the case here. What Heinz claims is that they may reveal its regulatory strategy. The Respondent calls it its lobbying strategy. Regardless of the label, it has nothing to do with its operations. Even giving the most generous interpretations to the words "financial, commercial, scientific or technical information", neither the 6 Documents nor the Presentation fit that label. There is nothing the least bit financial, commercial, scientific or technical about the 6 Documents or the Presentation . They merely reveal Heinz's concern with nutrition and its fear that smaller sizes may lead to poorer nutrition. This is a public policy concern that Heinz is voicing; it is not financial, commercial, scientific or technical information. Accordingly, Heinz fails to meet the first leg of the test in Air Atonabee, supra.
Issue 2: Should the Heinz Documents be exempted pursuant to s. 20(1)(c) of the Act?
[16] Heinz's submission in this regard boils down to the following: Heinz submits the release of the documents would show a competitor that Heinz made submissions on the proposed changed to the Processed Products Regulations. Heinz submits that:
This knowledge would allow such competitors to attempt to undermine both Heinz Canada's submissions on the regulations and its infant and junior food business.
(Applicant's Memorandum paragraph 65)
[17] Heinz submits that a competitor could then submit a narrow response to Heinz's submissions. Heinz submits that the competitor would not have to put in as much time, effort and resources into this submission, as they would only be responding to Heinz's submission. This section of the Act requires CFIA to refuse to disclose information should it result in material financial loss to Heinz, or prejudice the competitive position of Heinz.
[18] There is no merit in this position. It cannot be a surprise to members of the food industry that Heinz is making submissions regarding the proposed amendments to the Processed Products Regulations. As one of the largest players in the food industry, it has a vital interest in these matters. Indeed, the access request specifically addresses submissions by Heinz and others.
[19] In a democratic process, the purpose of seeking submissions to amendments proposed by a government is to enable the government to:
a) find out the concerns of stakeholders;
b) compare, weigh and evaluate stakeholder concerns;
c) craft an amendment that satisfies the public policy needs;
d) satisfy most of the concerns addressed;
e) reconcile competitors' positions; and
f) present an acceptable middle ground.
For this process to be effective, it has to be open and transparent. To suggest that the government cannot disclose (especially when asked under an access request) a policy openly advocated by one of the stakeholders, that in no way reflects any of the operational concerns or impacts of the stakeholder, merely because it may reveal that stakeholder's regulatory policy ( i.e. its position), completely flies in the face of the purpose of the Act. This would make meaningful government consultations impossible. As noted in AtraZeneca, supra, "there is a heavy burden on the party attempting to prevent disclosure". As set out in Air Atonabee, supra, mere speculation of what a competitor might do does not meet the requirements regarding the proof needed for s. 20(1)(c).
Issue 3: Should the Study not be released as it is unresponsive to the access request?
[20] Heinz argues that the Study was not submitted to CFIA or Agriculture Canada but to Health Canada. Secondly, Heinz argues that the Study was not submitted to Health Canada in response to the proposed amendments to the Processed Products Regulations. As such, it does not fall within the scope of the access request. Heinz relies on Cistel Technology Inc. v. Canada ( Correctional Service), 2002 FCT 253 as authority for its position.
[21] However, the observation in Cistel, supra was explained in Canadian Tobacco Manufacturers' Council v. Canada (Minister of National Revenue - MNR) 2003 FC 1037 where Russell J. stated at paragraph 91:
In the Canadian Jewish Congress, supra, case relied upon by the Applicants the issue was the Ministers' refusal to disclose on the basis of irrelevance, and in Cistel Technology Inc., supra, McKeown J. agreed that a payment voucher and task request/authorization did not come within the scope of the request and so did not have to be disclosed, but he provides no real discussion or authority for this decision. The wording of section 6 contains no prohibition against disclosing documents that are not relevant to the request. In fact, section 6 does not address the concept of relevancy. It merely stipulates that the request must be made in writing and must provide sufficient detail to allow 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 objective of Parliament in enacting the Act, as embodied in section 2, I find there is no exemption available to the Applicants based upon relevancy. This Court has expressed the view that exceptions to disclosure under the Act should be strictly construed in Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) at para. 23 per McDonald J.A.:
In my opinion, therefore, all exemptions must be interpreted in light of this clause [s.2(1)]. 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 follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.
[22] Similarly, Strayer D.J. observed in Mead Johnson Nutritionals, a division of Bristol-Myers Squibb Canada Co. v. Canada (Attorney General), 2005 FC 235 at paragraph 10:
I am satisfied that the applicant has no standing to complain that the proposed disclosure is not responsive to the request by an outside party which initiated the disclosure process. Clearly the proposed disclosure is not within the terms of the original request. It was held by the Federal Court of Appeal in Saint John Shipbuilding Ltd. v. Canada (1990), 67 D.L.R.(4th) 315, however, that a third party cannot object that the government institution is prepared to give more than was asked for. This reasoning proceeds on the basis that section 2 of the Access to Information Act states its purpose to be "that government information should be available to the public" and "that necessary exceptions to the right of access should be limited". Section 27 provides that where the Head of a government institution intends to disclose "any record requested" and he has reason to think that it might contain third party information of a kind protected under section 20 he must give written notice to the third party "of the request" and that he intends "to disclose the record". "The record" must be taken to refer back to the "record requested" referred to in subsection 27(1). Further under section 28 a third party is given the right to make representations "as to why the record ... should not be disclosed". Again, the word "record" must refer back to the "record requested" described in subsection 27(1). This means that a third party cannot complain if a government institution discloses records that were never requested which is what the applicant complains of here. I respectfully agree with the conclusion of Russell J. in this respect in Canadian Tobacco Manufacturers' Council v. Canada, [2003] F.C.J. No. 1308 at para. 91.
[23] On the basis of these two cases, I believe Heinz has no standing at law to complain about the release of the Study. The fact that it was submitted to Health Canada and not Agriculture Canada is of no relevance. It clearly was in CFIA's files, and it dealt in a generic way with the subject matter. It ought to be disclosed in the spirit of the Act. It is not for Heinz to question that decision.
[24] Accordingly, this application will be dismissed and CFIA's decision to release the Heinz Documents in the form proposed by CFIA is upheld.
ORDER
THIS COURT ORDERS that this application be dismissed with costs to the Respondent.
A Konrad W. von Finckenstein @
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2214-04
STYLE OF CAUSE: H.J. Heinz Company of Canada Ltd. and
James Friel
and
Attorney General Of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 20, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
| Craig Collins-Williams |
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FOR THE APPLICANT |
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| Kris Klein |
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FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
| Craig Collins-Williams Ottawa, ON |
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FOR THE APPLICANT |
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| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON |
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FOR THE RESPONDENT |
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