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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Bacon International Inc. v. Department of Agriculture and Agri‑Food Canada
Indexed as: Bacon International Inc. v. Canada
(Department of Agriculture and Agri-Food)

File Nos.:	T-2290-98, T-2291-98, T-2292-98, T-2294-98
Reference:	[2002] A.C.F. No.776 (QL) (F.C.T.D.)
Date of decision:	May 23, 2002
Before:	Beaudry J.
Sections(s) of ATIA / PA:	Ss. 20(1)(b), (c), (d), 44 Access to Information Act (ATIA)

Abstract

Role of Court with respect to application under s. 44 of the ATIA
Third party's burden of proof with respect to an application under s. 44 of the ATIA
Criteria making paras. 20(1)(b), (c) and (d) of the ATIA applicable

Issues

Do the exceptions provided under paras. 20(1)(b), (c) and (d) of the ATIA apply to the record?

Has Parliament encroached on a matter falling within provincial jurisdiction by adopting paras. 20(1)(b), (c) and (d) of the ATIA?

Facts

This is an application for judicial review under s. 44 of the ATIA following the respondent's decision to disclose a record, which the applicants are requesting the non-disclosure of based on paras. 20(1)(b), (c) and (d) of the Act.

The applicants each run a slaughterhouse and meat processing plant in Quebec. The respondent conducts inspections and gives the facilities overall ratings in carrying out its mandate of protecting the public in the food industry.

The respondent received a request for access to information to obtain the rating given by the Department to all facilities specializing in slaughtering and meat processing in Quebec. The respondent informed each of the applicants about the request for information and invited them to send their written comments with respect to the reasons why the record should not be disclosed. The applicant parties all argued in support of paras. 20(1)(b), (c) and (d). The applicants did not convince the respondent that sub. 20(1) applied in order to allow the non-disclosure of the record; therefore, the respondent decided to disclose it.

Decision

The application for judicial review is dismissed and it is ordered that the records be disclosed.

Reasons

Issue 1

General principles
The judge pointed out that in an application for judicial review under s. 44 of the ATIA, the Court must hear the matter de novo.

He added that in access to information, disclosure of records is the rule and exemption is the exception, and that the third party opposing the disclosure of the information must prove, according to the balance of probabilities, that the requested information should not be disclosed.

Paragraph 20(1)(b)
Referring to Air Atonabee Limited v. Canada (Ministry of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.), the judge confirmed that the third party claiming the exception provided by para. 20(1)(b) must prove that the record:

(a) contains financial, commercial, scientific or technical information, according to the usual meanings of these terms;

(b) was supplied by the third party to a federal institution;

(d) was consistently treated in a confidential manner by the third party.

In the present case, the Court ruled that the applicants did not meet the burden of proof incumbent upon them pursuant to para. 20(1)(b) because the record does not meet the criteria of containing information supplied to the federal institution by the third party itself. In fact, the record for which the applicants are trying to obtain an exemption to disclosure contains a rating for facilities issued by the respondent in carrying out its mandate of protecting the public in the food industry.

Paragraphs 20(1)(c) and (d)
For paras. 20(1)(c) and (d) of the Act to apply, there must be a reasonable expectation of probable harm. Therefore, the applicants must demonstrate a probability of harm, and not only a possibility of harm. It is necessary that the applicants submit evidence demonstrating to the Court how and why the disclosure would probably cause the alleged harm. In the present case, the applicants' statements concerning the harm that they could suffer are too general and brief for the Court to be able to find that it is preferable to not disclose the record. In other words, it is not only by claiming that the disclosure will cause them financial loss, interfere with their competitiveness and their negotiations that the applicants will meet the burden of proof.

The disclosure of the rating issued by the respondent in 1998 will not give rise to an expectation of probable harm because the rating for the applicants was good. Adopting the words of Justice MacGuigan in Canada Packers Inc. v. Canada (Department of Agriculture), [1989] 1 F.C. 47 (C.A.), the judge added that even if the 1998 records had been unfavourable, "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 [third party] or of prejudice to its competitive position or of interference with its contractual or other negotiations."

Issue 2

The applicants allege that subs. 20(1) of the ATIA must be interpreted according to the principles of civil law enforced in the province of Quebec because the record is their trade secret and that only Quebec can legislate in the area of "property and civil rights." The Court has determined that in this case, it is unnecessary to address this issue, because, on one hand, the applicants did not discharge the onus of proving that subs. 20(1) applies, and, on the other hand, the record was not supplied by the applicants and is thus not the applicants' property or asset.

Comments

This decision is under appeal.