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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Canada Post Corporation v. National Capital Commission
Indexed as: Canada Post Corp. v. Canada (National Capital Commission)

File No.:	T-558-01
Reference:	[2002] F.C.J. No. 982 (QL) (F.C.T.D.)
Date of decision:	June 21, 2002
Before:	Kelen J. (F.C.T.D.)
Section(s) of ATIA / PA:	Ss. 20(1)(b), (c), and (d), 44 Access to Information Act (ATIA)

Abstract

S. 44 standard of review
Negotiated amounts of financial assistance not information "supplied to a government institution by a third party"
Disclosure of sponsorship rates can prejudice the competitive position of a sponsor
Possibility of pressure from third parties for matching sponsorship funds and pressure from competitors not constituting interference or obstruction with contractual negotiations

Issue

Whether the amounts paid by Canada Post Corp. (CPC) for sponsoring the Canada Day event, the Sound and Light Show, and the Christmas Lights event are exempt from disclosure pursuant to either para. 20(1)(b), or (c) or (d) of the ATIA.

Facts

A request was filed with the National Capital Commission (NCC) for access to information related to financial assistance received from sponsors, for public events for which the NCC is responsible. The NCC informed CPC of this request. Attached to the letter was a Record detailing information about CPC with respect to contributions made by it for events on Canada Day, the Sound and Light Show, and the Christmas Lights, that the NCC intended to release, on the grounds that the information was not protected under subs. 20(1) ATIA.

Canada Post provided the NCC with submissions objecting to the release of the information on grounds based upon paras. 20(1)(b), (c) and (d). The NCC subsequently rejected Canada Post's submissions, hence this s. 44 application.

Decision

The application was allowed on the basis of para. 20(1)(c) ATIA. The absence of a confidentiality agreement between CPC and the NCC, together with the NCC's success on two of the three grounds for exemption, led the Court to order that the parties bear their own costs.

Reasons

Standard of review and onus
Referring to the decision in St. Joseph Corp. v. Canada (Public Works and Government Services), [2002] F.C.J. No. 361 (QL) (F.C.T.D.), the Court found that the standard of review under s. 44 is correctness and that it is its role to consider whether the information ought to be disclosed on a de novo basis. Since the purpose of the Act is to provide the public with a right of access to information, the onus is on the party attempting to prevent disclosure to show that clear grounds exist to justify the exemption.

Paragraph 20(1)(b)
Applying the Air Atonabee test, as summarized in St. Joseph, the Court rejected CPC's argument based on para. 20(1)(b). Although the amounts of financial assistance for sponsorship were "financial and commercial information" and that this information was confidential in nature (notwithstanding the absence of a confidentiality agreement), the Court found that negotiated amounts of financial assistance did not constitute information "supplied to a government institution by a third party". The intention of Parliament in exempting financial and commercial information from disclosure applies to confidential information submitted to the government, not negotiated amounts for goods or services. Otherwise, every contract amount with the government would be exempt from disclosure, and the public would have no access to this important information. Moreover, there would be no need for Parliament to have enacted paras. 20(1)(c) and (d).

The Court further found that the information had not been treated consistently in a confidential manner by the applicant, as shown from its affidavit. Although the instances where the information had not been treated confidentially may have occurred through no fault of the applicant, the Court found that these instances nevertheless showed a lack of careful, consistent measures by the applicant to restrict access to the information.

Paragraph 20(1)(c)
The applicant met the test set out in para. 20(1)(c). An analogy was drawn between this case and Perez Bramalea Ltd. v. Canada (National Capital Commission), [1995] F.C.J. No. 63 (QL) (F.C.T.D.). Just as disclosure of rental rates paid by one tenant was found, in Perez, to prejudice the competitive position of a landlord, the disclosure of sponsorship rates can prejudice the competitive position of a sponsor by permitting private sector competitors to try to outbid it, and by permitting others to use the information to seek increased sponsorship funding. Canada Post provided tangible evidence of probable harm as opposed to merely speculative evidence.

Paragraph 20(1)(d)
Applying the test in Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.), in which Strayer J. said "[...] when paragraph 20(1)(d) refers to disclosure which could 'interfere' with contractual negotiations it must refer to an obstruction to those negotiations and not merely to the heightening of competition for the third party which might flow from disclosure", Kelen J. found that the possibility of pressure from third parties for matching sponsorship funds and pressure from competitors could not be considered interference or obstruction with future contractual negotiations. That submission was relevant to the exemption in para. 20(1)(c), not para. 20(1)(d). Paragraph 20(1)(d) was therefore not applicable.