ARCHIVED - InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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Canadian National Railway Company v. Attorney General of Canada
Indexed as: Canadian National Railway Co. v. Canada (Attorney General)

File No.:	T-2027-00
Reference:	[2002] F.C.J. No. 1283 (QL) (F.C.T.D.)
Date of decision:	September 13, 2002
Before:	Pelletier J.
Section(s) of ATIA/PA:	Ss. 19, 20(1)(b), (c), (d), 44 Access to Information Act (ATIA)

Abstract

• The fact that certain information can be found at registry offices is sufficient to make it information to which the public has access

Issues

Should the information sought be disclosed if an interested party can find it in sources to which the public has access?

Do the exemptions set out in s. 19 and in paras. 20(1) (b), (c) and (d) of the ATIA apply to the records at issue?

Facts

Every year, the applicant prepares a list of the non-rail assets it has sold over the previous year and sends it to Transport Canada. The applicant is required to prepare and submit this list under an agreement signed during the applicant's privatization. Transport Canada received a request to disclose the list for 1996 and 1997, but refused the request at the applicant's request. The documents contain the following information: name of the purchaser, the municipality of the property, its approximate surface area, the selling price, the date of sale, the costs of the sale and the net revenue of the sale. The parties agree that the costs associated with the sale and the net revenue of the sale must not be disclosed.

The person requesting access filed a complaint with the Information Commissioner regarding the decision not to disclose the information. Transport Canada subsequently decided it would disclose the contents of this list for the years in question. The reasons for this decision include the fact that one of the applicant's employees had agreed to disclose the information earlier and the fact that the information requested was accessible to the public because it was registered at the registry offices of various provinces.

Decision

The application for judicial review is dismissed

Reasons

Section 19 and paragraph 20(1)(b)
Justice Pelletier ruled that s. 19 and para. 20(1)(b), have a common element that is among the most relevant to the decision. In both cases, the fact that some of the information can be found in registry offices is relevant to understanding the obligation to disclose documents.

Pelletier J. noted that confidentiality cannot not be raised in a case where the public has access to information (subs. 19(2)) or when the information can be obtained from sources to which the public has access (para. 20(1)(b)). Justice Pelletier found that it is the very nature of registry offices that the public have access thereto and that, prima facie, for the 166 transactions where the exact selling price can be found at registry offices, no information is confidential.

The Court then examined the issue raised by the applicant as to whether the Act only requires that the public have access to sources containing the information in question, or if it is necessary that the public actually be able to have access to this information. The applicant alleges that, although the information was registered at registry offices, it would be impossible to access this information by only knowing the purchaser's name or that the applicant was the vendor.

In the Court's view, any ambiguity with respect to this question must be resolved in favour of disclosure. The Court found that the registration of the purchasers' names, of the description of the property, of the date of sale and of the selling price at the registry offices makes this information accessible to the public, and, consequently, this information is not confidential.

Paragraphs 20(1)(c) and (d) ATIA
According to the Court, paras. 20(1)(c) and (d) apply when the disclosure of certain information would cause losses to third parties or would obstruct negotiations for contracts by third parties.

In regard to para. 20(1)(c), the applicant alleges that the purchasers will suffer harm if the property's purchase price is disclosed in that their ability to resell the land for the best possible price will be compromised because the interested parties will know what their selling price was. The Court dismissed this argument. On one hand, the selling price can be found in registry offices for 166 of the 183 transactions in question. On the other hand, even for the purchasers of the 17 properties which do not have the purchase price registered in registry offices, one cannot find that knowledge of the purchase price would have a deciding effect on the possible conclusion of the negotiations.

The Court also dismissed the applicant's claim that it would suffer a loss. The applicant alleges that proceedings could be instituted against it by some purchasers who, after learning about the disclosed documents, could claim to have suffered a loss on the basis of others benefiting from better conditions. The judge believed that this allegation is improbable because these were commercial transactions between people at arm's length.

With respect to para. 20(1)(d) of the Act, the applicant claims that its negotiations for the sale of other properties will be obstructed by the comparative elements which the potential purchasers will have after the information is disclosed. However, the judge ruled that the selling price varies according to the circumstances, in such a way that a purchaser should know much more than the gross price paid in other transactions to enjoy a considerable advantage in negotiations with the applicant.

The Court rules that s. 19 and paras. 20(1)(b), (c) and (d) of the Act do not apply to the 166 cases where the exact selling price appears at registry offices.

With respect to the 17 transactions for which the selling price does not appear in the registry offices, the Court ruled that the agreement between the parties to not disclose the costs associated with the sale and the net revenue of the sale will result in this information and the selling price being omitted from the documents to be disclosed.

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