Date: 20020523
Neutral citation: 2002 FCT 587
Ottawa, Ontario, May 23, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
Docket T-2290-98
BACON INTERNATIONAL INC.
Plaintiff
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA
Defendant
Docket T-2291-98
LES ALIMENTS VERMONT FOODS INC.
Plaintiff
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA
Defendant
Docket T-2292-98
BACON AMERICA INC.
Plaintiff
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA
Defendant
Docket T-2294-98
122345 CANADA LIMITÉE
Plaintiff
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review made pursuant to s. 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (hereinafter "the Act"), regarding the decision by the Department of Agriculture and Agri-Food Canada to disclose a document which the plaintiffs ask not be disclosed, in reliance on paragraphs 20(1)(b), (c) and (d) of the Act.
POINT AT ISSUE
[2] Do the exceptions contained in paragraphs 20(1)(b), (c) and (d) of the Act apply to the document in question?
[3] The answer to that question is no.
FACTS
[4] The plaintiffs each operate a slaughter and meat processing business in the province of Quebec.
[5] On June 12, 1998, the defendant received an access to information request. Martin Millette of Matol Botanique Internationale Inc. wished to have the Department's rating for all businesses specializing in slaughter and meat processing for the province of Quebec territory.
[6] The defendant notified each of the plaintiffs of the information request and invited them to submit their written comments as to reasons why the document concerned in the application should not be disclosed. The plaintiffs all cited paragraphs 20(1)(b), (c) and (d) as a basis for not disclosing the document.
DECISION
[7] The defendant decided to disclose the document in question since the plaintiffs did not satisfy it that subsection 20(1) applied so as to permit non-disclosure of the document.
ARGUMENTS
Plaintiffs
[8] The plaintiffs maintained that the document at issue could not be disclosed as it qualified for the exceptions contained in paragraphs 20(1)(b), (c) and (d) of the Act.
[9] The plaintiffs sought to keep the information confidential. They alleged that the access to information request related to scientific and/or technical information which was confidential in nature and was so treated by the plaintiffs.
[10] The plaintiffs further argued that disclosure of the information could be expected to result in financial loss and prejudice competitive position.
[11] The originator of the access to information request, Mr. Millette, works in the field of pharmaceutical products and the plaintiffs maintained that he wished to offer his services. The disclosure would interfere with negotiations being conducted by the plaintiffs, since Matol Botanique Internationale Ltée would have an advantage in contractual negotiations with the plaintiffs.
[12] The plaintiffs maintained that the information in question is a trade secret owned by them. Further, they argued that Parliament had invaded the field of provincial jurisdiction by adopting paragraphs 20(1)(b), (c) and (d) of the Act, since those provisions deal with trade secrets which are owned by a business. Only Quebec can legislate on "property and civil rights".
[13] They alleged that subsection 20(1) of the Act should be interpreted in accordance with the rules of civil law in effect in the province of Quebec.
Defendant
General principles
[14] The defendant reminded the Court that, in determining whether exemptions regarding non-disclosure apply, the case is before it de novo: Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, at 206 (F.C.T.D.), and Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47, at 60 (C.A.). It is therefore possible for the plaintiffs to present new evidence.
[15] The defendant alleged that the purpose of the Act is to facilitate the disclosure of federal government documents: see Canada Packers, supra, at 60. The Court should not impede access to information unless there is evidence to support an exemption, and in the event of doubt disclosure of the documents should be granted: see Maislin Industries Limited v. Minister of Industry, Trade and Commerce, [1984] 1 F.C. 939, at 943 (F.C.T.D.). Accordingly, disclosure of documents is the rule and exemption the exception: see Coopérative fédérée du Québec (c.b.u.n. Aliments Flamingo) v. Canada (Agriculture et Agri-Food), [2000] F.C.J. No. 26, para. 5 (F.C.T.D.), on line: QL, and Merck Frosst Canada v. Canada (Minister of National Health), [2000] F.C.J. No. 1281, para. 6 (F.C.T.D.), on line: QL.
[16] The burden of proof rests on the party objecting to the disclosure of information: see Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 41 C.P.R. (3d) 512, at 528 (F.C.A.), affirmed (1992), 45 C.P.R. (3d) 390, and Maislin, supra, note 4, at 943. The Court must be satisfied on a balance of probabilities that the information should not be disclosed.
Exceptions to disclosure
[17] The defendant maintained that the document in question does not meet the criteria for the exceptions mentioned in subsection 20(1) of the Act.
[18] A third party relying on paragraph 20(1)(b) must prove several things, including the fact that the documents were supplied by it to a government institution: see Air Atonabee, supra. The defendant argued that the document in question does not contain information supplied to the federal institution by the plaintiffs, since it is the institution itself which produced the document: see Canada Packers, at 54-55; Hutton v. Canada (Minister of National Resources) (1997), 137 F.T.R. 110 (F.C.T.D.), and Coopérative fédérée du Québec, supra, at para. 16. The information in the document in question is the rating of the plaintiffs' establishments issued by the defendant. Further, it maintained that there is not sufficient evidence to show that the information sought is confidential.
[19] For the exceptions contained in paragraphs 20(1)(c) and (d) of the Act to apply, there must be a reasonable expectation of probable harm: see Canada Packers, at 60, and Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315, at 316 (F.C.A.). The plaintiffs must show probable harm, not merely possible harm: see SNC-Lavalin v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113, at 127 (F.C.T.D.); Canadian Broadcasting Corporation v. National Capital Commission (1998), 147 F.T.R. 264, at 270-271 (F.C.T.D.); Matol Botanique International Ltée v. Canada (Minister of Health and Welfare), [1999] F.C.J. No. 1273, at 4 (F.C.T.D.), on line: QL, and Merck Frosst, supra.
[20] General statements of harm will not suffice for the Court to conclude that non-disclosure is necessary. It is necessary for the plaintiffs to submit evidence showing the Court how and why disclosure will probably result in the alleged harm: see Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480, at 488 (F.C.T.D.), Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427, at 445 and 479 (F.C.T.D.), and Viandes du Breton Inc. v. Canada (Minister of Agriculture and Agri-Food), [2000] F.C.J. No. 2088, at para. 11 (F.C.T.D.), on line: QL. The defendant submitted that the plaintiffs had not explained how and why the information sought would probably cause financial loss, prejudice the competitive position of the business or interfere with negotiations with the party requesting access.
[21] The defendant maintained that the evidence filed was insufficient for the Court to conclude that disclosure of the document would probably cause harm to the plaintiffs.
[22] The defendant alleged that documents several years old are not likely to create a reasonable risk of probable harm: see Viandes du Breton, supra, at para. 17, Canada Packers, at 64-65, and Gainers v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 133, at 137. The plaintiffs' rating contained in the document was issued by the defendant in May 1998. The defendant concluded that it was hard to argue that the rating issued over three years ago could now cause the plaintiffs financial loss or prejudice their position in negotiations. It is possible the rating has changed in recent years.
[23] The defendant argued that the evidence provided by the plaintiffs was too scanty and vague to establish that disclosure of the information would probably cause them harm. They had not met the burden of proof.
[24] In the defendant's opinion, the Act is not legislation seeking to regulate trade secrets, but is instead meant to give the public a right of access to documents which are under the control of the federal government.
[25] The concepts to be found in paragraphs 20(1)(b) and (c) are not concepts peculiar to the civil law, and paragraph 20(1)(d) is not a civil law concept. These paragraphs concern questions of fact.
[26] The defendant argued that the information sought was not a trade secret owned by the plaintiffs. The document in question is a document produced by the defendant in the course of its function of inspecting meat. It is the rating it assigned to the plaintiffs' establishments.
APPLICABLE LEGISLATION
[27] Section 2 of the Act confirms that its purpose is to facilitate the public's right of access to documents under the federal government's control. That section reads 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. |
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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. |
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| (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. |
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(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.
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[28] Section 20 of the Act deals with exemptions permitting non-disclosure of information:
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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 |
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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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(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; |
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[...]
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; |
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| (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 |
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| 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) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. |
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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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[29] Section 44 of the Act authorizes an application for judicial review to the Federal Court Trial Division from an unfavourable decision. That section states:
| 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.
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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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ANALYSIS
General principles
[30] Judicial review under s. 44 of the Act differs from other judicial review, since the Court has the case before it de novo: see Air Atonabee and Canada Packers. It has an opportunity itself to weigh the reasons submitted by the third party in seeking non-disclosure of the information. In Air Atonabee, MacKay J. said the following:
The respondent submits that this review initiated under section 44(1) is not an appeal or judicial review in the traditional judicial context, with the Court limited to consideration of the evidence before the respondent at the time that the decision to release the records was made. Rather, it is submitted that the Court is to undertake a new and independent review of the whole matter, comparable to a trial de novo, and the third party applicant is free to submit new or additional evidence not available to the respondent at the time of his decision. In practical terms the Court is left with no alternative in this case for no attempt has been made to provide all of the evidence before the respondent, including such evidence as the text of the Access Request, the purposes and the full context of the regulatory regime in which the records here in issue were compiled (except for such evidence as appears from the applicant), and the range of information that might possibly respond to the request, a range which appears to have increased significantly over time in view of the respondent in this case.
That the Court should undertake a review of the records in issue and determine what is exempt from disclosure and what is not, and further what information should be severed from exempt information and then released, may well be an onerous task in some cases. Nevertheless, it is consistent with the role which implicitly Parliament has established for the Court under the Act. [...]
[31] A third party objecting to disclosure of information must establish on a balance of probabilities that the information sought should not be released. In Cyanamid Canada Inc., supra, Jerome A.C.J. said:
In a third party application under s. 44 of the Act, the party opposing disclosure bears the burden of showing that clear grounds exist to justify exempting the documents in issue from disclosure to the requester: Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1988), 30 C.P.R. (3d) 473 at p. 476, 20 C.I.P.R. 302, 20 F.T.R. 73 (T.D.). The Access to Information Act codifies the public right of access and the basic premise is that access to records gathered for a public purpose and at public expense ought to be available. In this light, the court will not frustrate public access to government information except under the clearest grounds and any doubt ought to be resolved in favour of disclosure: Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce) (1984), 80 C.P.R. (2d) 253 at p. 256, 10 D.L.R. (4th) 417, [1984] 1 F.C. 939 (T.D.). [...]
[32] In questions of access to information, disclosure is the rule and exemption the exception. In Coopérative fédérée du Québec Pinard J. said at para. 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. [...]
[33] In Merck Frosst, this Court went on to say at para. 6:
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 [...]
[34] In the case at bar, the plaintiffs have to satisfy the Court that one of the exceptions applies.
Exceptions to disclosure
[35] When the Court assesses the applicability of s. 20(1), it must take into consideration certain rules which will help it to determine the possible risk resulting from disclosure. Rothstein J. drew up a list of the guidelines in Canada (Information Commissioner) v. Canada (Prime Minister), supra. At page 444 he said:
The Canadian jurisprudence interpreting the Access to Information Act has established guidelines that can be useful in assessing whether or not there is a reasonable expectation of probable harm from disclosure in a given situation and the procedures to be followed. The following are not exhaustive:
1. The exceptions to access require a reasonable expectation of probable harm: Canada Packers, supra, at page 60.
2. The considered opinion of the Information Commissioner should not be ignored: Rubin v. Canada (Canada Mortgage and Housing Corporation), [1989] 1 F.C. 265 (C.A.), at page 272.
3. Use of the information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probable harm: Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), at page 210.
4. It is relevant to consider if the information sought to be kept confidential is available from sources otherwise available by the public and whether it could be obtained by observation or independent study by a member of the public acting on his or her own: Air Atonabee, supra, at page 202.
5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure: Canada Packers, supra, at page 63; Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.), at page 488.
6. Evidence of the period of time between the date of the confidential record and its disclosure is relevant: Ottawa Football Club, supra, at page 488.
7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short of meeting the burden of entitlement to an exemption from disclosure: Ottawa Football Club, supra, at page 488; Air Atonabee, supra, at page 211.
8. Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure: Canada Packers, supra, at page 64.
9. Section 25 of the Act provides for severance of material in record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless: Montana Band of Indians v. Can. (Min. of Indian & Nor. Affairs), [1988] 5 W.W.R. 151 (F.C.T.D.), at page 166.
10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record: Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), at pages 109-110; and Merck Frosst Canada Inc. v. Canada (Department of Health and Welfare Protection Branch) (1988), 20 C.P.R. (3d) 177 (F.C.T.D.), at page 179.
[36] Paragraph 20(1)(b) of the Act deals with confidential information. A third party claiming exemption for non-disclosure of a document must show that the document at issue:
(a) contains financial, commercial, scientific or technical information, in the usual sense of those words;
(b) was supplied by it to the government institution;
(c) is confidential in nature, which means that:
(i) the content of the document is such that the information it contains cannot be obtained from sources to which the public has access otherwise or cannot be obtained by observation or independent study by an ordinary person acting on his own;
(ii) the information must have been submitted confidentially with the reasonable assurance that it would not be disclosed;
(iii) the information must be released either because the law requires it or because it was supplied free of charge in accordance with a relationship of trust between the government and the person supplying it or in a relationship that is not contrary to the public interest, and disclosure of the confidential information must promote that relationship in the public interest;
(d) was consistently treated in a confidential manner by it.
These rules are set out in Air Atonabee, at pages 207-210.
[37] In the case at bar, the document for which the plaintiffs are seeking a disclosure exemption was not supplied by them but originated with the defendant. In the course of its function of protecting the public in matters involving food the defendant carries out inspections and gives businesses ratings. The content of the document at issue contains just such a rating of the plaintiffs.
[38] Accordingly, it does not meet the test that the document should contain information supplied to the government institution by a third party. Paragraph 20(1)(b) thus does not apply in the case at bar. In Canada Packers, MacGuigan J.A. suggested at page 54:
Paragraph 20(1)(b) relates not to all confidential information but only to that which has been "supplied to a government institution by a third party". Apart from the employee and volume information which the respondent intends to withhold, none of the information contained in the reports has been supplied by the appellant. The reports are, rather, judgments made by government inspectors on what they have themselves observed. In my view no other reasonable interpretation is possible, either of this paragraph or of the facts, and therefore paragraph 20(1)(b) is irrelevant in the cases at bar.
[39] Paragraphs 20(1)(c) and (d) of the Act deals with disclosure that will probably cause harm. The applicable test is that of a reasonable expectation of probable harm, and MacGuigan J.A. went on, at page 60:
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.
[40] Accordingly, in order to satisfy paragraphs 20(1)(c) and (d) of the Act, the plaintiffs must establish a probability of harm, not simply a possibility. In this regard, Nadon J. said in Viandes du Breton, at paras. 11 and 16:
Consequently, it is not sufficient for the plaintiff to show a possibility of harm or to speculate as to the probability of harm which the disclosure would cause it in negotiations. As laid down by the courts, the plaintiff must clearly show that the disclosure will probably cause it harm.
[...] In the seven affidavits filed by it, which I will only discuss in general terms because of the order of confidentiality covering them, the plaintiff described the consequences that might ensue if the documents were disclosed. It maintained that disclosure would cause it financial loss, prejudice its competitive position and cause ongoing negotiations to fail. In support of its arguments, it submitted various figures which it said showed the financial losses it would suffer. However, the consequences discussed by the plaintiff appear to be the result of speculation rather than of thorough analysis or study. The lack of discussion of the calculation method used in arriving at these figures or the source of the figures raises questions about the accuracy of these analyses. In my opinion these figures, as submitted by the plaintiff, do not suffice to show that there is a probability of harm.
[41] For paragraphs 20(1)(c) and (d) to apply, it is essential that the plaintiffs show the Court how and why disclosure would probably result in the alleged harm.
[42] In the case at bar, the defendant alleged that the plaintiffs had not established a probability of harm. The plaintiffs' statements on the harm they might sustain are too vague and brief for the Court to be able to conclude that it is better not to disclose the document in question. It is more a possibility of harm, not a probability, which the plaintiffs have to establish. The plaintiffs cannot meet the burden of proof simply by stating that the disclosure of the document would cause financial loss, affect their competitive position and interfere with negotiations with the access to information applicant.
[43] The documents, which in the case at bar are several years old (1998), are not risks of probable harm as the ratings are actually favourable. Even if the ratings were unfavourable, MacGuigan J.A. noted in Canada Packers, at page 64:
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.
[44] The plaintiffs did not satisfy the Court that the rating received in 1998 could cause them financial loss or interfere with future negotiations with the access to information applicant.
Civil Code of Quebec concepts for interpreting paragraphs 20(1)(b), (c) and (d) of Access to Information Act
[45] Counsel for the plaintiffs maintained that arts. 35 to 41, 1376, 1472, 1612 and 2088 of the Quebec Civil Code should be harmonized with paragraphs 20(1)(b), (c) and (d) of the Act. In my opinion it is not necessary to decide this point in the case at bar as, first, the plaintiffs did not discharge the burden of proving the exemptions mentioned in paragraphs 20(1)(b), (c) and (d) of the Act. Secondly, as I noted earlier, the document in question was not supplied by the plaintiffs and so is not the property or asset of the latter.
CONCLUSION
[46] The application for judicial review is dismissed and I authorize disclosure of the documents at issue, with costs.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed [and] the documents at issue disclosed, with costs.
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"Michel Beaudry"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-2290-98
STYLE OF CAUSE: Bacon International Inc. and Department of Agriculture and Agri-Food Canada
FILE: T-2291-98
STYLE OF CAUSE: Les Aliments Vermont Foods Inc. and Department of Agriculture and
Agri-Food Canada
FILE: T-2292-98
STYLE OF CAUSE: Bacon America Inc. and Department of Agriculture and Agri-Food Canada
FILE: T-2294-98
STYLE OF CAUSE: 122345 Canada Limitée and Department of Agriculture and Agri-Food Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: April 17, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATE OF REASONS: May 23, 2002
APPEARANCES:
Louis Masson FOR THE PLAINTIFF
Bernard Letarte FOR THE DEFENDANT
SOLICITORS OF RECORD:
Martin Bédard and Louis Masson FOR THE PLAINTIFF
Joli-Coeur, Lacasse, Lemieux, Simard, St-Pierre
Sillery, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Quebec Civil Proceedings Branch
c/o Bernard Letarte