[2016] 3 F.C.R. D-1
Access to Information
Judicial review of two materially identical decisions by Minister of Public Works and Government Services Canada (PWGSC) refusing to redact portions of applicant’s confidential business records under Access to Information Act, R.S.C., 1985, c. A-1 — Applicant winning 2009 Request for Standing Offer (RFSO) by PWGSC to provide research assistants — Bid containing personnel rates for specialized, technical fields — Personnel rates redacted in 2009 by Department of National Defence (DND) pursuant to Act, s. 20(1)(c) — RFSO, resulting contract containing disclosure clause wherein offer or agrees to disclosure of standing offer unit prices or rates — No difference between disclosure clause at issue herein, one at issue in 2009 — Applicant opposing disclosure by PWGSC, requesting redaction of its personnel rates including redactions similar to those requested, granted in 2009 — PWGSC issuing two decisions pursuant to Act, s. 28 declining to redact personnel rates, stating personnel rates not confidential third party information prejudicial to applicant’s competitive position — Whether personnel rates entitled to redaction pursuant to Act, ss. 20(1)(c),(d), affected by disclosure clause; whether head of institution required to consider discretion to redact personnel rates pursuant to Act, s. 20(5) — Exemption for applicant’s personnel rates warranted under s. 20(1)(c) — Rates crucial to applicant’s competitive position, ability to win contract in highly competitive RFSO bidding process — Current personnel rates significantly more confidential than fully burdened unit prices in past standing offers — Disclosure of personnel rates creating high degree of potential harm to applicant — Fact decisions involving different decision makers (DND in 2009, PWGSC in 2014), different subject matter not persuasive grounds to deny applicant statute’s protection from public disclosure of personnel rates — Executive authority in both cases Crown, acting through relevant head of institution — PWGSC not permitted to act in arbitrary or capricious manner — Present case not involving stare decisis — Disclosure clause not preventing Court from finding personnel rates warranting exemption under s. 20(1)(c) — Court having to consider all relevant facts, considerations, circumstances that “could reasonably be expected” to establish listed consequences referred to in legislation — Reasonable expectation by applicant that any access request would be released with personnel rates redacted having effect of depriving disclosure clause of determinative effect urged by respondents — Exemption also warranted under Act, s. 20(1)(d) — Head of institution failing to discharge legal duty to consider discretion to refuse to disclose created by use of word “may” in Act, s. 20(5) — Court in Attaran v. Canada (Foreign Affairs), 2011 FCA 182, holding that Act, s. 15(1) requiring head of institution to consider exercise of discretion — Attaran’s rationale applying to discretion under s. 20(5) — Decisions set aside for failure to consider exemption — As to exemption under Act, s. 20(1)(b), applicant not meeting four-part test outlined in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.) — Claim for protection under Act, s. 20(1)(b) therefore failing — Claim under Act, ss. 18(b),(d) also failing — Application allowed.
Calian Ltd. v. Canada (Attorney General) (T-291-14, T-1481-14, 2015 FC 1392, Brown J., judgment dated December 18, 2015, 46 pp.)