T-1026-85
Canada Packers Inc. (Applicant)
v.
Minister of Agriculture (Respondent)
and
Information Commissioner of Canada (Party
Intervenant)
and
Jim Romahn (Party Intervenant)
T-1119-85
Canada Packers Inc. (Applicant)
v.
Minister of Agriculture (Respondent)
and
Ken Rubin (Party Intervenant)
INDEXED AS: CANADA PACKERS INC. V. CANADA (MINISTER
OF AGRICULTURE)
Trial Division, Jerome A.C.J.—Toronto, Septem-
ber 8, 9, 10; Ottawa, December 11, 1987.
Access to information — Access to Department of Agricul
ture meat inspection audit team reports — Burden of proof
under Act s. 20(1) re exemption from disclosure — Balancing
of public versus private interests — Purpose of Act and
government accountability — Information not confidential in
nature — Negative impact not expected to be material.
Pursuant to requests filed by the intervenors herein under the
Access to Information Act, the Information Commissioner
recommended the release of certain government reports on
Canadian meat packing plants. In compliance with that recom
mendation, the Department of Agriculture informed the appli
cants that the audit team reports would be released, with the
exception of information exempted as confidential under para
graph 20(1)(b) of the Act. These applications were filed under
section 44 of the Act for a review of the Department's decisions
to disclose.
Held, the applications to resist disclosure should be dismissed
for the reasons given herein, as well as for those set out in the
Piller Sausages and Intercontinental Packers decisions.
Submissions were made on the issue of burden of proof in
section 44 applications. The argument that the wording of
paragraphs 20(1)(c) and (d) obviates any burden to show by
quantitative evidence that release of the information at issue
will result in material financial loss is not well taken. There
must be sufficient evidence to establish that such harm can be
"reasonably expected" to result from the release of the
information.
It is not for the courts to balance the competing interests of
the public's right to know and the private interests of an
applicant in avoiding prejudice to its business. That balancing
process has already been done by Parliament in passing the
Access to Information Act and defining the exceptions to the
general rule of disclosure. The courts examine, on the facts, the
issues of the confidentiality of the information and of a reason
able expectation of harm.
This is not the proper forum in which to argue that disclosure
of the reports will not contribute to the real purpose of access to
government information which, according to the applicant, is
government accountability. The purpose of the Act is not
specifically to enhance government accountability but to pro
vide access, subject to certain limited exceptions, to all records
under government control.
The reports cannot be considered as exempt under paragraph
20(1)(b) of the Act because, as was said in the related Inter
continental Packers and Piller Sausages cases, this information
is not confidential but public in nature. And under the circum
stances, paragraph 20(1)(c) cannot be invoked as there can be
no reasonable expectation of harm to the applicant.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 20(1),(2), 44.
CASES JUDICIALLY CONSIDERED
APPLIED:
Piller Sausages & Delicatessens Ltd. v. Canada (Minis-
ter of Agriculture), [1988] 1 F.C. 446 (T.D.); Gainers
Inc. v. Canada (Minister of Agriculture), order dated
December 11, 1987, Federal Court, Trial Division,
T-1131-85, not yet reported; Intercontinental Packers
Ltd. v. Canada (Minister of Agriculture), order dated
December 11, 1987, Federal Court, Trial Division,
T-1291-85, not yet reported; Wellford v. Hardin, 444
F.2d 21 (4th Cir. 1971).
DISTINGUISHED:
Maislin Industries Limited v. Minister for Industry,
Trade and Commerce, [1984] 1 F.C. 939; 10 D.L.R.
(4th) 417 (T.D.).
COUNSEL:
Ronald E. Mark for applicant Piller Sausages
& Delicatessens Limited.
P. L. Seitz for applicant J. M. Schneider Inc.
Colin L. Campbell, Q.C. for applicants
Canada Packers Inc., F. W. Fearman Com
pany Limited, Toronto Abattoirs Limited and
Oscar Mayer Foods Corporation.
John J. Chapman for applicants Gainers Inc.
and Burns Meats Ltd.
Robert H. McKercher, Q.C. for applicant
Intercontinental Packers Limited.
Gary A. Maavara for applicant IBP Inc.
G. N. Sparrow for respondent Minister of
Agriculture.
Hilde M. English for intervenant (requestor)
Jim Romahn in T-1024-85, T-1025-85,
T-1456-85, T-1471-85, T-1491-85, T-1506-85
and T-2338-86.
Michael L. Phelan for intervenant Informa
tion Commissioner of Canada in T-1024-85,
T-1025-85 and T-1026-85.
APPEARANCE:
Ken Rubin on his own behalf as intervenant
(requestor) in T-1118-85, T-1119-85,
T-1131-85, T-1140-85, T-1253-85,
T-1291-85.
SOLICITORS:
Sutherland, Hagarty, Mark & Somerville,
Kitchener, Ontario, for applicant Piller Sau
sages & Delicatessens Limited.
Mackay, Artindale, Wunder, Kitchener,
Ontario, for applicant J. M. Schneider Inc.
McCarthy and McCarthy, Toronto, for appli
cants Canada Packers Inc., F. W. Fearman
Company Limited, Toronto Abattoirs Limited
and Oscar Mayer Foods Corporation.
Miller, Thompson, Sedgewick, Ferris &
Healy, Toronto, for applicants Gainers Inc.
and Burns Meats Ltd.
McKercher, McKercher, Stack, Korchin &
Laing, Saskatoon, Saskatchewan, for appli
cant Intercontinental Packers Limited.
Borden & Elliott, Toronto, for applicant IBP
Inc.
Deputy Attorney General of Canada for
respondent Minister of Agriculture.
Haney, White, Ostner, English & Linton,
Waterloo, Ontario for intervenant (requestor)
Jim Romahn in T-1024-85, T-1025-85,
T-1456-85, T-1471-85, T-1491-85, T-1506-85
and T-2338-86.
Osler, Hoskin & Harcourt, Ottawa, for
intervenant Information Commissioner of
Canada in T-1024-85, T-1025-85 and
T-1026-85.
INTERVENANT ON HIS OWN BEHALF:
Ken Rubin as intervenant (requestor) in
T-1118-85, T-1119-85, T-1131-85,
T-1140-85, T-1253-85, T-1291-85.
The following are the reasons for order ren
dered in English by
JERCME A.C.J.: These matters are two of the
fourtee, ï applications under section 44 of the
Access to Information Act [S.C. 1980-81-82-83,
c. 111, Schedule I] which came on for hearing
before me on September 8, 1987 in Toronto,
Ontario. The applicants all seek to restrict the
disclosure of meat inspection audit team reports
prepared by the Department of Agriculture. The
nature of those reports was described in detail in
the Piller Sausages & Delicatessens Ltd. v.
Canada (Minister of Agriculture), [1988] 1.F.C.
446 (T.D.) decision. While the facts of each
application vary slightly, the principles involved
are the same. I have therefore indicated that the
reasons for the Piller Sausages judgment will
apply, with appropriate modifications, to these
applications.
In 1983 and 1985, the requestor/intervenors in
this case, who are a newspaper reporter and a
consumer researcher, respectively, filed requests
under the Access to Information Act for the 1982,
1983 and 1984 meat inspection audit reports on
Canadian slaughter/meat packing plants. Reports
on Canada Packers were included in all these
requests. Like the other applicants in this case, the
company filed objections to the release of the
reports. The first request by Jim Romahn was the
subject of an investigation by the Information
Commissioner. Her resulting recommendation to
disclose is quoted in the Piller Sausages decision
and led the Department of Agriculture to inform
the applicants that all the reports requested would
be released, with the exception of information
exempted as confidential under paragraph
20(1)(b). A similar decision to release was reached
with respect to the subsequent requests. These
applications were then filed under section 44 of the
Act for a review of the Department's decisions to
disclose.
The intervenor, Ken Rubin, raised some prelim
inary points at the hearing of these applications.
He asked me to review the decision not to disclose
the portions of the reports which had already been
exempted under paragraph 20(1)(b) and to declare
all of the reports disclosable under subsection
20(2). My reasons for rejecting those submissions
are set out in the Gainers Inc. v. Canada (Minister
of Agriculture) decision, (order dated December
11, 1987, T-1131-85, not yet reported).
Like the other applicants, Canada Packers seeks
to show that the information in the reports is
exempt from disclosure under subsection 20(1) of
the Act. That section reads:
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.
The applicant's arguments under this section are
in some respects unique and to that extent they
must be addressed separately.
First, this applicant makes submissions on the
issue of burden of proof in section 44 applications.
While not disputing that the burden rests generally
with the party opposing disclosure, the applicant
argues that the wording of paragraphs 20(1)(c)
and (d) obviates any burden to show by quantita
tive evidence that release of the information at
issue will result in material financial loss. It cites
in support the American cases dealt with in the
Piller Sausages decision. As I indicated in those
reasons, both the American and Canadian stand
ard of proof in these cases requires evidence show
ing at least a likelihood of substantial injury. The
Court is asked by the legislation to determine if
such harm can be "reasonably expected" to result
from the release of the information. There must,
therefore, be sufficient evidence to establish such a
reasonable expectation.
The applicant further argues that the Court is
required to balance the competing interests of the
public's right to know and the private interests of
the applicant in avoiding prejudice to its business.
In my opinion, however, that balancing process has
already been done by Parliament in passing the
Access to Information Act and delineating the
exceptions to the general rule of disclosure. All
that is left to the courts is the factual determina
tion of whether the applicant has established the
confidentiality of the information or a reasonable
expectation of harm under subsection 20(1). This
distinction was put well by the U.S. Court of
Appeals in WeIlford v. Hardin, 444 F.2d 21 (4th
Cir. 1971), at pages 24-25:
[5,6] Of course, a company subject to a warning letter or
detention action suffers a loss of privacy. The question, how
ever, is whether the loss of privacy involved in disclosing the
requested records is, as the Department contends, unwarranted.
Congress has already answered the question by passing the
Freedom of Information Act and the "overriding emphasis of
its legislative history is that information maintained by the
executive branch should become more available to the public."
Attorney General's Memorandum on the Public Information
Section of the Administrative Procedure Act, p. 1 (1967). After
considering voluminous testimony on both sides and balancing
the public, private, and administrative interests, Congress
decided that the best course was open access to the governmen
tal process with a very few exceptions. It is not the province of
the courts to restrict that legislative judgment under the guise
of judicially balancing the same interests that Congress has
considered.
It is also argued that the reports in this case are
significantly different from the government infor
mation ordered released in earlier applications
under this Act. Unlike the material requested in
Maislin Industries Limited v. Minister for Indus
try, Trade and Commerce, [1984 1 F.C. 939; 10
D.L.R. (4th) 417 (T.D.), for example, this infor
mation was not the result of a voluntary submis
sion by a third party for the purpose of securing
government business or assistance or any expendi
ture of public funds. Rather, these firms are
statutorily subject to the inspections and audits
which produced these reports. The thrust of the
argument, as I understand it, is that disclosure of
the reports will not contribute to the real purpose
of access to government information: government
accountability.
For the reasons indicated above, this argument
is being made in the wrong forum. The task of
assessing what information the public "needs to
know" and what must be withheld has already
been done by Parliament. The purpose of the
Access to Information Act is not specifically to
enhance government accountability, but to provide
access to all records under government control,
with certain limited exceptions. These reports are
unquestionably records under government control.
They must therefore be disclosed unless they can
be shown to come within a specific statutory
exemption, in this case subsection 20(1).
Turning to subsection 20(1), then, this applicant
argues that the whole of the reports should be
considered exempt under paragraph 20(1)(b) as
they are confidential, financial or technical infor
mation supplied by a third party. I have set out my
reasons for rejecting that argument in the Inter
continental Packers Ltd. v. Canada (Minister of
Agriculture) decision (order dated December 11,
1987, T-1291-85, not yet reported). Basically, I
am not convinced that this information is confi
dential in nature, by objective standards. It has
already been disclosed in the companion American
reports to which access is available under the U.S.
Freedom of Information Act and between 1981
and 1983, similar information was released by
Agriculture Canada. In addition, as discussed in
the Piller Sausages decision, the information in
these reports is, by its nature, public information
and should not be considered confidential.
With regard to paragraph 20(1)(c) of the Act,
the applicant contends it is difficult to weigh the
predicted impact of the release of the reports
because they have consistently been kept confiden
tial. On the basis of the respondent's and interven-
ors' evidence, the applicant is forced to admit that
audit reports were released by Agriculture Canada
on at least one occasion in 1983. Cross-examina
tion of the Information Commissioner's investiga
tor revealed, however, that the reports were with
drawn from public access at that time because of
the manner in which they were used by journalists.
The author of an internal department memo noted
that the "Kitchener-Waterloo newspaper consist
ently presented these audit results in the worst
possible light". (Cross-examination of Bruce
Anderson, Exhibit 1.)
The applicant goes on to state that such report
ing has led to material losses and prejudice to the
applicant in the past. However, the example they
give to support this statement does not relate to
publication of a government inspection report. In
January of 1986, the applicant acceded to an
Agriculture Canada request to slaughter a herd of
cattle suffering from tuberculosis. A number of
animals were determined by federal inspectors not
to be diseased and were released for human con
sumption. When this fact was published by the
news media, retail buyers of the applicant's prod
ucts cancelled standing orders, declining any asso
ciation with the suspect herd.
The problem with this evidence is that it does
not deal with a parallel case to the one at bar. I
have pointed out in a number of these decisions
that the audit reports do not deal directly with the
quality or safety of the meat produced in the
subject plants. They relate only to general condi
tions in the plant and the inspection process. The
stories about the diseased herd, however, clearly
had a direct bearing on the meat which would be
delivered to retailers. Under those circumstances,
it was reasonable to expect there would be some
cancellation of orders. I do not find such an expec
tation to be reasonable in this case. It is significant
that the applicant could produce no evidence of
loss at their Kitchener plant as a result of the
stories complained of by department officials.
For the above reasons, as well as those set out in
the Piller Sausages and Intercontinental Packers
decisions, I do not find that this applicant has
established a case for non-disclosure under subsec
tion 20(1). I have concluded that the reports may
be released in the form proposed by the Depart
ment of Agriculture. These applications to resist
disclosure are therefore dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.