Skip to content | Skip to institutional links

Common menu bar links

Institutional links

InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Air Transat A.T. Inc. v. Transport Canada
Indexed as: Air Transat A.T. Inc. v. Canada (Transport)

File No.:	T-307-00
References:	[2001] F.C.J. No.108 (QL) (F.C.T.D.) [aff'd in part, 2002 FCA 404, A-112-01, judgement dated October 22, 2002-see "Comments" at the end of this summary]
Date of decision:	January 30, 2001
Before:	Rouleau J.
Sections(s) of the ATIA / PA:	S. 20(1)(b), (c) Access to Information Act (ATIA)

Abstract

Confidentiality of information contained in an inspection report
Terms of affidavits too general

Issue

Do paras. 20(1)(b) and (c) of the ATIA apply to the record?

Facts

The respondent inspected the applicant's aircraft in November 1998 and wrote an inspection report in 1999. The applicant was informed in November 1999, that an access to information request had been filed. The applicant then informed the respondent that one part of the information in the assessment report of 1999 should not be disclosed because of the application of s. 20 of the ATIA. On January 28, 2000, the respondent informed the applicant that only the information protected under subs. 19(1) and para. 20(1)(d) would not be disclosed.

The applicant filed an application for judicial review pursuant to s. 44 of the ATIA following this decision. The applicant is arguing that certain portions in the report should not be disclosed in accordance with paras. 20(1)(b) and (c) of the ATIA.

Decision

The application for judicial review is allowed in part.

Reasons

Paragraph 20(1)(b) ATIA
At first, the Court dismissed the respondent's argument that the report did not meet the objective confidentiality criteria because it is a government record. It is not enough that a record be considered a government record subject to the ATIA to find that the record's contents cannot fall within the exemption provided in para. 20(1)(b). When there is a request for access to an inspection report, the party arguing the exemption under the Act must prove the confidentiality of the information originally provided, as well as demonstrate the continued confidentiality of the information.

In other words, it must demonstrate that the information was confidential when it was given to inspectors and that it must remain confidential throughout the entire inspection process, which includes information in the final report. This must be demonstrated by producing direct evidence.

In the present case, Justice Rouleau found that the four criteria for the application of para. 20(1)(b) were satisfied: (1) the report contains technical information (information on methods of operation written in the Maintenance Control Manual); (2) the report contains several copies of documents provided by the applicant; (3) the report contains confidential information, at least, as specified by Rouleau J., with respect to the documents provided by the applicant; and (4) there is no doubt about the consistent confidentiality of the documents provided by the applicant.

Justice Rouleau proceeded to prepare a table listing the outcome of the information at issue. The information, which consists of observations made by the inspectors, information which is no longer being challenged or which is a directive of the respondent, must be disclosed. However, the applicant's aircraft registration numbers do not have to be disclosed.

Paragraph 20(1)(c) ATIA
The applicant invoked the exemption under para. 20(1)(c) of the ATIA. According to the applicant, the disclosure of incidents indicating that the applicant did not entirely comply with the regulatory requirements could [translation] "irreparably harm the image of Air Transat A.T. Inc., and this would have an immediate effect on its good will".

The Court believes that the affidavits that were prepared were too general and that the applicant did not meet the necessary burden of proof in the application of para. 20(1)(c). The Court said the following:

[Translation]

[...] showing that a reasonable expectation of probable harm exists requires more than mere general allegations of the type contained in the affidavits filed by the plaintiff. In the case at bar, there is no evidence of the extent of the harm anticipated. Further, the plaintiff gave no indication of the link between the information and the harm described.

Comments

The appeal from the Trial Division decision (2002 FCA 404, A-112-01, judgement dated October 22, 2002) was allowed in part. No portion of the inspection report was protected under para. 20(1)(c). The aircraft numbers and/or flight numbers did not fall within the para. 20(1)(c) exemption.