T-1470-00
2003 FCT 250
H.J. Heinz Company of Canada Ltd. (Applicant)
v.
Attorney General of Canada (Respondent)
Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General) (T.D.)
Trial Division, Layden-Stevenson J.--Ottawa, February 17; Fredericton, February 27, 2003.
Access to Information -- Information requested of Canadian Food Inspection Agency (CFIA) under Access to Information Act -- CFIA deciding to release records with certain redactions -- Act, s. 44 review application by third party -- Fearing competitive position prejudiced if confidential information released -- Whether records responsive to request -- Whether "correspondence" restricted to letters or including communication -- What required by Privacy Act, ss. 3, 8 -- Whether only s. 20(1) exemption to be considered upon Act, s. 44 application -- Act containing two exemption types: mandatory, discretionary -- Procedure to be followed in dealing with both types -- Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) considered -- F.C.A. having entertained third party arguments outside s. 20(1) -- Applicant having shown some, not all, information to be commercial, financial, scientific, technical -- Requirement that information confidential met -- Records created by CFIA from information supplied by applicant -- Court determining material requiring severance.
Construction of Statutes --Access to Information Act -- Attorney General relying on Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) for proposition when dealing with s. 20, other mandatory exemptions to be ignored -- Case not establishing blanket prohibition -- Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) suggesting if s. 24 mandatory exemption available to third party, so too that in s. 19 -- Otherwise, illogical result, contrary to statutory construction principle articulated by S.C.C. in Rizzo and Rizzo Shoes Ltd. (Re).
The Canadian Food Inspection Agency (CFIA) was in receipt of a request under the Access to Information Act which involved a third party, H.J. Heinz Company of Canada Ltd. Heinz was called upon to identify any information it wished protected against disclosure and to furnish justification therefor. Finding the justification provided to be inadequate, the Agency informed Heinz of its intention to release the records, subject to certain redactions. This was an application for review, under section 44 of the Act. Heinz says that these records contain confidential financial, commercial, scientific and technical information which it disclosed to the Agency. If given out by CFIA, the competitive position of H.J. Heinz could be prejudiced. Heinz sought to have the CFIA decision set aside and an order prohibiting disclosure of the records or, at least, without redaction of the third party information.
Held, the application should be granted.
A preliminary issue was raised by applicant: the records are not responsive to the request. The request was for "correspondence" related to certain topics; Heinz submitted that the records are not "correspondence" and thus fall outside the scope of the request. Applicant relied upon the decision of McKeown J. in Cistel Technology Inc. v. Canada (Correctional Service) holding that a payment voucher and task requests/authorization were not invoices. The request being for invoices, those documents were not included in the request. Heinz suggested that the meaning of "correspondence" is restricted to "letters" while respondent argued for the broader definition "communication". The Oxford English Dictionary defines "correspondence" as including both "letters that pass between correspondents" and "vital, practical or active communication". The argument advanced by Heinz on this issue could not prevail.
Applicant argued that the interaction of Privacy Act, sections 3 and 8 requires the Agency to refuse disclosure of information not in the public domain regarding an identifiable individual absent that person's consent. The Agency's submission was that, upon an application under section 44 of the Act, the right of review applies where a third party seeks to prevent disclosure of confidential information protected by subsection 20(1) and does not extend to any other exemption or exclusion under the Act, including section 19. Sections 27, 28 and 44 were said to constitute a complete code which does not confer a right to receive notice, to make submissions or to seek review, except with regard to confidential information described in section 20. For its position, the Agency relied upon the judgment of the Federal Court of Appeal in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services).
The Act contains two types of exemptions, mandatory and discretionary. In the latter case, two decisions are necessary: (1) does the record fall within the description contemplated by the statutory exemption invoked; and (2) if it does, should the record nevertheless be disclosed? The procedure to be followed in dealing with both mandatory and discretionary exemptions was explained in the reasons of this Division in Canadian Jewish Congress v. Canada (Minister of Employment and Immigration). As for the section 19 mandatory exemption, the position taken by the Minister has been inconsistent. In the case at bar, respondent relied on Saint John Shipbuilding for the proposition that, when dealing with section 20, the other mandatory exemptions are to be ignored. That case did not, however, establish a blanket prohibition against use of the other mandatory exclusions just because section 20 is invoked. Under section 28, a third party may make "representations" against disclosure. No restrictions are stated. Furthermore, in two cases the Federal Court of Appeal entertained third party arguments outside the ambit of subsection 20(1). The reasoning of the Trial Division, affirmed on appeal, in Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services), would suggest that if the mandatory exemption provided by section 24 is available to a third party, so too must be the mandatory exemption in section 19. To hold otherwise would yield an illogical result, contrary to the statutory construction principle articulated by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re).
H.J. Heinz submitted that all the hallmarks of confidentiality articulated in Air Atonabee Ltd. v. Canada (Minister of Transport) are here present. Respondent's counter-argument was that the third party's evidence failed to demonstrate that the information sought to be exempted is commercial, financial, scientific or technical. It was further said that the information was not furnished by the third party but rather was created by CFIA.
Applicant showed that some, but not all, of the information is commercial, financial, scientific or technical in nature. Regarding confidentiality, the Court was satisfied that most of the information is unavailable to the public. The requirement that the information be confidential had been met. While these records were indeed created by CFIA, they contain information supplied by Heinz. The final requirement was also met, for respondent did not seriously challenge the fact that this information had been consistently treated in a confidential manner by the third party.
The Court's obligation with respect to severance is found in Act, section 51and an order determining what portions of the material required severance was made.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 4, 13 (as am. by S.C. 2000, c. 7, s. 21), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29(1), 44, 51.
| Defence Production Act, R.S.C., 1985, c. D-1, s. 30. |
| Privacy Act, R.S.C., 1985, c. P-21, ss. 3 "personal information", 8. |
cases judicially considered
applied:
Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 (F.C.T.D.); Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 9 Admin. L.R. (2d) 161; 45 C.P.R. (3d) 390; 148 N.R. 147 (F.C.A.); Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 70 C.R.R. (2d) 278; 251 N.R. 220 (F.C.A.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2001), 15 C.P.R. (4th) 470; 213 F.T.R. 125 (F.C.T.D.); affd (2002), 21 C.P.R. (4th) 575 (F.C.A.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; (1995), 102 F.T.R. 30 (T.D.); Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.).
considered:
Maislin Industries Limited v. Minister for Industry, Trade and Commerce, [1984] 1 F.C. 939; (1984), 10 D.L.R. (4th) 417; 8 Admin. L.R. 305; 27 B.L.R. 84; 80 C.P.R. (2d) 253 (T.D.); Cistel Technology Inc. v. Canada (Correctional Service), 2002 FCT 253; [2002] F.C.J. No. 328 (T.D.) (QL); Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315; 207 N.R. 89 (F.C.A.); Société Gamma Inc. v. Canada (Department of Secretary of State) (1994), 27 Admin. L.R. (2d) 102; 17 B.L.R. (2d) 13; 56 C.P.R. (3d) 58; 79 F.T.R. 42 (F.C.T.D.).
referred to:
Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47; (1988), 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 81 (C.A.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 148 D.L.R. (4th) 385; 46 Admin. L.R. (2d) 155; 213 N.R. 161; Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265; (1988), 52 D.L.R. (4th) 671; 32 Admin. L.R. 196; 21 C.P.R. (3d) 1; 86 N.R. 186 (C.A.); Northern Cruiser Co. v. Canada (1995), 99 F.T.R. 320n (F.C.A.); Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; (1988), 31 Admin. L.R. 103; 20 F.T.R. 314 (T.D.); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427; (1992), 12 Admin. L.R. (2d) 81; 49 C.P.R. (3d) 79; 57 F.T.R. 180 (T.D.).
authors cited
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989. "correspondence".
APPLICATION to set aside a decision of the Canadian Food Inspection Agency to disclose certain records and for an order prohibiting disclosure or disclosure without redaction of third party information. Application granted.
appearances:
Nicholas P. McHaffie for applicant.
Christopher M. Rupar for respondent.
solicitors of record:
Stikeman Elliott, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Layden-Stevenson J.: This matter arises out of an application, by H.J. Heinz Company of Canada Ltd. (Heinz), under the Access to Information Act, R.S.C., 1985, c. A-1 (the Act). It concerns the decision of the president of the Canadian Food Inspection Agency (CFIA) by his delegate, the co-ordinator of Access to Information and Privacy, dated September 7, 2000.
[2]By letter dated August 15, 2000, CFIA informed Heinz, in accordance with section 27 of the Act, of the receipt of a request pursuant to the Act and of CFIA's identification of the records responsive to the request, but containing information concerning a third party (Heinz). CFIA invited Heinz to identify any information it wished to protect along with its explanation supporting non-disclosure.
[3]By letter dated September 1, 2000, Heinz made submissions to CFIA, pursuant to section 28, indicating that the records should not be disclosed because they fell within the descriptions contained in subsection 20(1) of the Act. CFIA determined that the applicant's justifications were insufficient to withhold all of the requested information and by letter dated September 7, 2000, CFIA informed Heinz of its intention to release the records, subject to certain redactions. Heinz commenced this application for review on September 27, 2000, pursuant to section 44 of the Act.
[4]Heinz alleges that the records contain financial, commercial, scientific and technical information that is confidential information supplied to CFIA by Heinz and has been treated consistently as confidential by Heinz. The applicant further alleges that the records contain information, the disclosure of which could reasonably be expected to result in material loss to Heinz and could reasonably be expected to prejudice the competitive position of Heinz. Lastly, Heinz alleges that the disclosure of the information in the records would not be "in the public interest as it relates to public health, public safety or protection of the environment" to such an extent that the public interest would clearly outweigh the importance of the financial loss and prejudice to the competitive position of Heinz. The applicant relies upon the evidence contained in the affidavit and attached exhibits of Becky McMullin sworn December 8, 2000.
[5]Heinz requests that the CFIA decision be set aside and that an order issue prohibiting disclosure of the records or, alternatively, that an order issue prohibiting the disclosure of the records without redaction of the third party information contained in the records. It also requests costs.
[6]By order of the Federal Court Trial Division dated December 7, 2001, any affidavits or documentary material marked as "confidential" by either party were ordered to be filed in sealed envelopes and treated as confidential and not available for review by the public without further order of the Court. A similar provision was included regarding the transcripts of any cross-examination of affiants. Finally, any oral hearings with respect to this matter were ordered to be conducted in camera, subject to further order of the Court. The applicant was granted an extension of time for the filing of supporting affidavits and documentary exhibits.
[7]Hence, the records of both the applicant and the respondent were filed in sealed envelopes and the hearing was conducted in camera. I presume that the respondent advised the party requesting the records in question of the application of Heinz. The requesting party did not take any part in the proceedings.
[8]The relevant statutory provisions are attached to these reasons as Schedule "A". Reference to specific provisions will be included where required for ease of reference and clarity.
[9]I begin with a review of basic principles. Subsection 2(1) of the Act contains its purpose, which is to provide the public with a right of access to information in records under the control of the government. Exceptions to that right of access should be limited and specific: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) (Canada Packers); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (Dagg). Public access ought not be frustrated by the courts except in the clearest of circumstances. It is a heavy burden of persuasion that rests upon the party resisting disclosure: Maislin Industries Limited v. Minister for Industry, Trade and Commerce, [1984] 1 F.C. 939 (T.D.) (Maislin); Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) (Rubin); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.). The standard of proof to be applied in reviewing exemptions under subsection 20(1) of the Act is that of a balance of probabilities: Northern Cruiser Co. v. Canada (1995), 99 F.T.R. 320n (F.C.A.).
[10]The applicant raises a preliminary issue and alleges that the records are not responsive to the request. While the initial request was for various documents pertaining to a variety of topics, the request was subsequently modified to include only "correspondence" related to specified topics.
[11]Heinz submits that section 4 of the Act dictates that access shall be provided "on request". Relying on Cistel Technology Inc. v. Canada (Correctional Service), 2002 FCT 253; [2002] F.C.J. No. 328 (T.D.) (QL) (Cistel), it submits that the records in issue are not "correspondence" and do not come within the scope of the request.
[12]In Cistel, McKeown J. determined that a payment voucher and a task request/authorization were not invoices. Since the request related to invoices, the aforementioned documents lay outside the scope of the request. Heinz regards "correspondence" as meaning "letters" whereas the respondent characterizes it as "communication". At the hearing, Heinz agreed that if the respondent's interpretation was found to be correct, its argument in this respect must fail.
[13]The Oxford English Dictionary, 2nd ed. provides a number of definitions for "correspondence" including:
Correspondence . . . The action or fact of corresponding or answering to each other in fitness or mutual adaptation, congruity, harmony, agreement. . . . Relation of agreement, similarity, or analogy . . . Of persons and things: vital, practical or active communication . . . The letters that pass between correspondents; also, letters contributed to a news paper or journal.
[14]Thus, while "correspondence" includes letters, it is not so restricted and it indeed includes communication. Heinz concedes that it has placed all of its eggs in one basket with respect to this argument and it is readily apparent that its argument must fail.
[15]The next issue relates to section 19 of the Act which provides:
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
[16]The definition in section 3 of the Privacy Act, R.S.C., 1985, c. P-21 defines "personal information" as being "information about an identifiable individual that is recorded in any form including . . . the name of the individual where it appears with other personal information relating to the individual" (paragraph (i)). The definition contains a number of additional examples of personal identification as well as specific exceptions to the definition, none of which apply here.
[17]Heinz maintains that section 8 of the Privacy Act provides for certain circumstances in which personal information that falls within the definition of section 3 may nonetheless be disclosed, but that none of those circumstances are applicable in this case. Therefore, the interaction of the provisions requires CFIA to refuse to disclose any information about an identifiable individual in the absence of the person's consent unless the information is in the public domain.
[18]The respondent, on the other hand, contends first, that it is not open to the applicant to raise exemptions other than those set out in section 20 of the Act and second, that the applicant cannot invoke section 19 of the Act in this application. The respondent submits that the application is brought pursuant to section 44 of the Act and that provision confers on a third party a right to apply for review of a decision of the head of a government institution in relation to the proposed release of records under the Act. However, this right of review is provided only to third parties who receive notice pursuant to subsection 28(1) or 29(1) of the Act. Here, the relevant provision is subsection 28(1), which is triggered only when notice is given to a third party under section 27. Subsection 27(1), in turn, provides for notice to the third party only in circumstances where the head of the government institution intends to disclose records that may contain information described in subsection 20(1) of the Act i.e., third party information. Briefly stated, it is argued that section 44 provides a right of review where a third party seeks to prevent disclosure of confidential information protected by subsection 20(1). Section 44 does not go further and does not confer the right to oppose disclosure on the basis of any other exemption or exclusion under the Act, including section 19. Parliament has provided a third party with a very specific right of review. That right is consistent with the scheme of the Act and the protection afforded a third party's confidential information.
[19]The respondent's submission, pared to its core, is that sections 27, 28 and 44 of the Act constitute a complete code whereby the third party is provided recourse to the Court to seek protection, but no more. The codification does not confer a right to receive notice, to make submissions or to seek review, except in the case of the confidential information described in section 20 of the Act. The respondent relies on Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 (F.C.A.) (Saint John Shipbuilding) to support its position.
[20]Determination of this issue requires an appreciation and awareness of the exemption provisions of the Act. The Act contains two types of exemptions, mandatory (sections 13 [as am. by S.C. 2000, c. 7, s. 21] 19, 20, 24) and discretionary (sections 14, 15, 16, 17, 18, 21, 22, 23). In the case of mandatory exemptions, the only decision to be made is whether the record comes within the description that the Act requires be exempted from disclosure. In the case of discretionary exemptions, two decisions are necessary: first, does the record come within the description that is contemplated by the statutory exemption invoked in a particular case; and second, if it does, should the record nevertheless be disclosed: Canada (Information Commissioner) v. Canada (Prime Minister), supra.
[21]The procedure to be followed regarding mandatory and discretionary exemptions is articulated in Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.), at pages 280-281:
If the exemption provision was mandatory, then there is only one type of decision: the factual decision as to whether the material comes within the description of the exempting provision. There is no second type of decision, as if the material is found to fall within the description, then the head of the institution is obligated to refuse disclosure. If a decision made under a mandatory exemption provision were to come before this Court for review . . . then firstly the Court would have to go through the record and determine whether or not the Minister was authorized to refuse disclosure. In so doing, the Court is effectually reviewing the factual decision. If the Court determined the Minister was in fact not authorized to refuse disclosure, then the Court would have to make an appropriate order. In the case of a mandatory exemption, an order for disclosure of the record would be an appropriate order if the Court determined the Minister had erred in the factual decision. The Act is clear in those cases that the material shall not be disclosed if falling within the exemption and the material shall be disclosed if it does not.
If the exemption provision in question is a discretionary provision, then there are two decisions to be reviewed by the Court . . . . Firstly, as in the case of a mandatory exemption, the Court shall review the record to determine if the head of the institution erred in the factual decision as to whether or not the requested information fell within the exempting provision. If the Court determines the material does fall within the exemption, then the Court must review the discretionary decision of the head of the institution. However . . . the Court must only consider whether or not the discretion was properly exercised, but should not itself attempt to exercise the discretion de novo. If the Court finds the discretion was properly exercised, an appropriate order is simply to uphold the decision of the head of the institution to refuse disclosure. However, the determination of an appropriate order becomes somewhat more complicated if the Court finds the discretion was improperly exercised. If the Court strikes down the discretionary decision of the head of the institution, then the question arises as to whether it is appropriate for the Court to then proceed to make this discretionary decision, thereby exercising the discretion itself, or whether the Court ought to refer the matter back to the head of the institution to exercise his/her discretion properly.
[22]Regarding the application of the section 19 mandatory exemption, the position of the Minister has been less than consistent. In Maislin, supra; Société Gamma Inc. v. Canada (Department of Secretary of State) (1994), 27 Admin. L.R. (2d) 102 (F.C.T.D.) (Société Gamma); and Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.) (Air Atonabee), all of which are relied on by the respondent here, albeit in other respects, the Minister conceded that section 19 information was exempt. While it may be said that Maislin and Air Atonabee preceded Saint John Shipbuilding, supra, Société Gamma did not. The respondent relies on the following passage from Saint John Shipbuilding [at page 317]:
Two minor points should be mentioned in closing. First, the appellant suggested that the material ordered to be released was in some respects different from what had been requested; the short answer to that is that the appellant's interest, as third party intervenor in a request for information, is limited to those matters set out in s. 20(1), and it has no status to object that the government may have given more or less than it was asked for. Secondly, the appellant urges that, because this is a defence contract, the Court should be specially reticent in releasing information. On this we can do no better than to quote the judge:
| Under s. 15 of the Act the respondent has the discretionary authority to refuse to disclose any record if its release could reasonably be expected to be injurious to the defence of Canada. The respondent does not purport to act under that section of the Act but under s. 20. I agree that my review is limited to the considerations set out in s. 20 of the Act and that the matter of national security is irrelevant to this hearing. |
[23]It is submitted that from this passage emerges a proposition that, when dealing with section 20 of the Act, the other mandatory exemptions of the Act are to be ignored. With respect, I cannot subscribe to such an interpretation nor do I believe that the Court intended any such thing. The comments above must be considered in the context in which they were made. First, the remarks were restricted to the appellant's argument that the released material was not responsive to the request. In that context (and not in relation to mandatory exemptions contained in the Act), it appears that the third party is limited to those matters set out in subsection 20(1) and cannot be heard to complain that the government gave more or less than what was requested. I do not view the excerpt, when viewed in its proper context, as a blanket prohibition against the use of the other mandatory exclusions of the Act merely because section 20 is invoked. I am reinforced in my view when regard is had to Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services) (2001), 15 C.P.R. (4th) 470 (F.C.T.D.); affirmed by (2002), 21 C.P.R. (4th) 575 (F.C.A.) (Siemens) about which I will have more to say in short order. Second, and to the extent that it is necessary to do so, I note that the comments regarding section 15 of the Act relate to a discretionary exemption rather than a mandatory one. The procedural implications relative to the distinction between mandatory and discretionary exemptions have been delineated above.
[24]Additionally, while the notice provision in section 27 refers specifically to the provisions of section 20, there is no such reference in section 28. It provides that the third party may make "representations" as to why the record or the part thereof should not be disclosed and there are no stated restrictions as to the representations available to the third party provided, of course, they are relevant to the issue of disclosure. Further, in Tridel Corp. v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 (F.C.T.D.), Campbell J. interpreted the excerpt from Saint John Shipbuilding as follows [at paragraph 19]:
I read this passage as authority for the proposition that a s. 44 review is limited to the information proposed to be released. I do not believe that the passage can be extended to restrict the arguments on fact and law that can be made regarding the proposed release of particular information.
[25]It is noteworthy that in both Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 9 Admin. L.R. (2d) 161 (F.C.A.) and Chippewas of Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 70 C.R.R. (2d) 278 (F.C.A.), the Court of Appeal entertained arguments, by a third party, that were outside the ambit of subsection 20(1). Finally, in Siemens, supra, McKeown J. determined that the Minister's proposed release of documents requested under the Act was prohibited by subsection 24(1) of the Act. Subsection 24(1) is a mandatory exemption regarding the disclosure of information that is restricted by or pursuant to any provision set out in Schedule II of the Act. Section 30 of the Defence Production Act, R.S.C., 1985, c. D-1 is incorporated by reference in Schedule II of the Act and that section prohibits disclosure of information with respect to an individual business that has been obtained under or by virtue of the Defence Production Act without the consent of the individual carrying on business. The bottom line is that McKeown J. determined that section 30 of the Defence Production Act constitutes a statutory provision designated under the statutory prohibition exemption set out in section 24 of the Act. In the result, the information could not be disclosed. I note in passing that the subsection 19(1) information was considered, by the Minister, to be exempt.
[26]On appeal, the trial decision in Siemens was affirmed. The argument advanced was that section 44 (review of the decision to disclose) of the Act limits the jurisdiction of the Court such that section 24 (mandatory exemption) cannot be invoked to prevent disclosure. In summarily dismissing the appeal, the Court of Appeal stated [at paragraph 1], "We are unable to interpret s. 44 in this way".
[27]Based on the reasoning in Siemens, it seems to me that if the mandatory exemption provided in section 24 of the Act is available to a third party, so too must be the mandatory exemption provided for in section 19. To hold otherwise, in my view, would yield an irrational and illogical result and one that is contrary to the principles of statutory interpretation articulated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and subsequent authorities. I therefore conclude, for the reasons stated, that the mandatory exemption in section 19 of the Act applies in section 44 proceedings, where relevant to the proposed disclosure.
[28]I turn now to the argument arising from subsection 20(1) of the Act, which provides:
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(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;
(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
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
[29]The applicant relies heavily on Air Atonabee, supra, and argues that the records in issue constitute confidential financial, commercial, scientific or technical information such that CFIA should refuse to disclose pursuant to paragraph 20(1)(b) of the Act. The records include information pertaining to the operations of a commercial enterprise or information that relates or pertains to matters of finance or commerce. Heinz alleges that all the hallmarks of confidentiality, as articulated in Air Atonabee, are present here. Specifically, Heinz submits that: the information is treated as confidential business secrets, is not published and is not accessible to the public; the information was communicated in the expectation that it would be kept in confidence; the relationship that Heinz maintains with CFIA and Health Canada is strong and open thereby enabling the applicant to engage in frank discussions; the relationship is important to the preservation of public safety as well as public confidence in food products; and, guarded discussions between Heinz and CFIA are not in the interests of the Canadian public.
[30]The respondent alleges that Heinz falls short of the requirements to substantiate an exemption under paragraph 20(1)(b). The evidence of the third party does not adequately support a determination that the specific information sought to be exempted is commercial, financial, scientific or technical. Regarding confidentiality, the respondent submits that it must be established objectively and it has not been so established. An expectation of confidentiality or the fact that the applicant has maintained the material in a confidential manner is only one aspect of the test. Finally, the information must be provided to the government institution by the third party. Here, the respondent contends that the information was created by CFIA.
[31]A review under section 44 is a review de novo: Air Atonabee. The standard of proof respecting subsection 20(1) is that of a balance of probabilities: Northern Cruiser, supra.
[32]The applicant must satisfy four requirements to establish that an exemption from disclosure is warranted:
(1) the information is financial, commercial, scientific or technical;
(2) the information is confidential;
(3) the information was supplied to the government institution by a "third party", and
(4) the information was treated consistently in a confidential manner.
[33]With respect to the first requirement, MacKay J., in Air Atonabee [at page 198] determined that dictionary meanings provide the best guide and, "it is sufficient for purposes of s. 20(1)(b) that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms are commonly understood". Here, some of the information in the records constitutes information regarding the Heinz operation in both its production of products and its management strategy. However, not all of the information qualifies as being commercial, financial, scientific or technical. The applicant's arguments, therefore, are relevant only with respect to those portions of the records that satisfy the first requirement.
[34]Regarding confidentiality, the following excerpts from Air Atonobee summarize the conditions that the applicant must meet to satisfy the second requirement [at pages 199 and 202].
The second requirement under subsection 20(1)(b), that the information be confidential, has been dealt with in a number of decisions. These establish that the information must be confidential in its nature by some objective standard which takes account of the content of information, its purposes and the conditions under which it was prepared and communicated (per Jerome A.C.J., in Montana, supra, at pp. 76-7). It is not sufficient that the third party state, without further evidence, that it is confidential (see e.g., Merck Frosst Canada Inc., supra; Re Noël and Great Lakes Pilotage Authority Ltd. (1988), 45 D.L.R. (4th) 127 (T.D.)). Information has not been held to be confidential, even if the third party considered it so, where it has been available to the public from some other source (Canada Packers Inc. v. Canada (Minister of Agriculture), [1988] 1 F.C. 483 (T.D.) . . . and related cases, appeal dismissed with variation as to reasons on other grounds, 26 C.P.R. (3d) 407, [1989] 1 F.C. 47 (C.A.)), or where it has been available at an earlier time or in another form from government (Canada Packers Inc., supra; Merck Frosst Canada Inc., supra). Information is not confidential where it could be obtained by observation albeit with more effort by the requester (Noël, supra). As outlined by Jerome A.C.J. in earlier cases dealing with subsection 20(1)(b):
It is not sufficient that (the applicant) considered the information to be confidential . . . It must also have been kept confidential by both parties and . . . must not have been otherwise disclosed, or available from sources to which the public has access.
(Maislin Industries Ltd. v. Minister for Industry, Trade and Commerce [1984] 1 F.C. 939, 80 C.P.R. (2d) 253 (T.D.) at p. 257 (DMR Associates v. Minister of Supply and Services (1984), 11 C.P.R. (3d) 87 at 91 (F.C.T.D.).)
. . .
This review leads me to consider the following as an elaboration of the formulation by Jerome A.C.J. in Montana, supra, that whether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely:
| (a) that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own, |
| (b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and |
| (c) that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication. |
[35]Here, I am satisfied that, with few possible exceptions, the information in question is not available from sources accessible by the public. Regarding the information that was provided by Heinz, I find that it originated in and was communicated in a reasonable expectation of confidence that it would not be disclosed. As in Air Atonabee, I am also satisfied, on the evidence, that [at page 204] "while . . . the relationship . . . is [not] one of special confidence in which all records should be exempt from disclosure . . ., it is consistent with the public interest and the relationship would be fostered for the benefit of the public . . . by treating as confidential those communications which originate with the applicant where the applicant has considered them confidential . . . the third party would be encouraged to be open and frank with inspectors if its understanding about the restricted purposes and circulation of its communications is recognized and respected". In short, I conclude that the requirement of confidentiality in this matter falls squarely within the reasoning of Air Atonabee. In coming to that determination, I have had particular regard to paragraphs 13-17, 19, 20, 29, 30, 34, 37, 40, 44 and 45 of the affidavit of Becky McMullin.
[36]Concerning the respondent's position regarding the third requirement, that the records were created by CFIA, 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: Canada Packers, supra. Although the records here were created by CFIA, they contain information supplied by Heinz. It is only the latter that can be subject to a paragraph 20(1)(b) analysis.
[37]The final requirement, that the records were treated consistently in a confidential manner by the third party, is obvious from the evidence and is not seriously challenged by the respondent.
[38]The applicant also relies on paragraph 20(1)(c) and argues that disclosure of the records will result in a reasonable expectation of probable harm because it could reasonably be expected to result in material financial loss to the applicant or gain to a competitor, or could reasonably be expected to prejudice the competitive position of Heinz. In other words, disclosure would, it is alleged, result in a competitive advantage to an actual or potential competitor of Heinz and would result in financial detriment to Heinz.
[39]The respondent argues contra and says that the applicant has not demonstrated a reasonable expectation of harm simply by affirming in an affidavit that disclosure would result in financial loss and interfere with contractual and other relations.
[40]I agree with the respondent's position in relation to paragraph 20(1)(c). The threshold is probability, not possibility or speculation: Saint John Shipbuilding, supra. There must exist, in the affidavit evidence, an explanation establishing that those outcomes are reasonably probable. Here, the evidence merely speculates as to probable harm and does not support the position that disclosure would result in a reasonable expectation of probable harm.
[41]The applicant argues that the records proposed to be disclosed should not be disclosed and submits that redaction pursuant to section 25 is not possible because it would result in "disconnected snippets" such that severance would be unreasonable: Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.). However, in the alternative and in the event that the Court should determine that the information could reasonably be severed, the applicant seeks to have 44 passages with which it takes issue removed from the 18 pages of documents.
[42]In response, the respondent submits that once it is determined that certain passages are exempt, the head of the institution is required to determine if any part can reasonably be severed: Rubin, supra. Here, the respondent has already severed the passages he considers to be exempt.
[43]The Court's obligation with respect to severance is found in section 51 of the Act. Here, I will delineate, in accordance with these reasons, the further passages that require severance. In doing so, I will use the letter references for the passages as assigned by the applicant. I note that the respondent conceded, prior to the hearing, that passages (d) and (l) should be severed. Additionally, counsel for the respondent agreed that, in the event that I should determine that section 19 is applicable, those passages to which section 19 applies would be severed. I therefore consider that the respondent has agreed to sever the following passages: (d), (l), (w) and the name in (qq).
[44]I order that the following passages be severed: (c), (g), (h), (i), (j), (k), (n), (r), (s), (t), (v), (y), from (bb) to (kk), both inclusive, as well as the first sentence only in (nn). Except as specifically referred to as severed herein, the records shall be disclosed.
[45]The affidavits and documents contained in the records and filed on a confidential basis shall remain sealed pending the expiration of the appeal period or, if an appeal is taken, until disposition of that appeal.
[46]The applicant has been substantially successful and will therefore have costs.
SCHEDULE "A"
Access to Information Act,
R.S.C., 1985, c. A-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) 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.
. . .
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
(2) The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.
(3) For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.
. . .
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(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;
(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
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
(2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
(3) Where the head of a government institution discloses a record requested under this Act, or a part thereof, that contains the results of product or environmental testing, the head of the institution shall at the same time as the record or part thereof is disclosed provide the person who requested the record with a written explanation of the methods used in conducting the tests.
(4) For the purposes of this section, the results of product or environmental testing do not include the results of preliminary testing conducted for the purpose of developing methods of testing.
(5) The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.
(6) The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in paragraph (1)(b), (c) or (d) if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party.
. . .
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.
(2) Such committee as may be designated or established under section 75 shall review every provision set out in Schedule II and shall, not later than July 1, 1986 or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting, cause a report to be laid before Parliament on whether and to what extent the provisions are necessary.
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
. . .
27. (1) Where the head of a government institution intends to disclose any record requested under this Act, or any part thereof, that contains or that the head of the institution has reason to believe might contain
(a) trade secrets of a third party,
(b) information described in paragraph 20(1)(b) that was supplied by a third party, or
(c) information the disclosure of which the head of the institution could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party,
the head of the institution shall, subject to subsection (2), if the third party can reasonably be located, within thirty days after the request is received, give written notice to the third party of the request and of the fact that the head of the institution intends to disclose the record or part thereof.
(2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.
(3) A notice given under subsection (1) shall include
(a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);
(b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and
(c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.
(4) The head of a government institution may extend the time limit set out in subsection (1) in respect of a request under this Act where the time limit set out in section 7 is extended under paragraph 9(1)(a) or (b) in respect of the same request, but any extension under this subsection shall be for a period no longer than the period of the extension under section 9.
28. (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,
(a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and
(b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.
(2) Representations made by a third party under paragraph (1)(a) shall be made in writing unless the head of the government institution concerned waives that requirement, in which case they may be made orally.
(3) A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Act or a part thereof shall include
(a) a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and
(b) a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.
(4) Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.
. . .
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.
(2) The head of a government institution who has given notice under paragraph 28(1)(b) or subsection 29(1) that a record requested under this Act or a part thereof will be disclosed shall forthwith on being given notice of an application made under subsection (1) in respect of the disclosure give written notice of the application to the person who requested access to the record.
(3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review.
. . .
51. Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.
. . .
53. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
Privacy Act, R.S.C., 1985, c. P-21
3. In this Act,
. . .
"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
. . .
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
. . .
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.