InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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H.J. Heinz Company of Canada Ltd. v. Attorney General of Canada
Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

File No.:	T-1470-00
References:	2003 FCT 250; [2003] F.C.J. No. 344 (QL) (F.C.T.D.)
Date of decision:	February 27, 2003
Before:	Layden-Stevenson J.
Section(s) of ATIA/PA:	Ss. 19, 20(1)(b), (c), 20(6), 25, 27, 28, 44, 51 Access to Information Act (ATIA)

Abstract

• Scope of request–Meaning of "correspondence"
• Applicability of s. 19 in a s. 44 review
• Para. 20(1)(b) criteria
• Mere speculation of harm insufficient for para. 20(1)(c)

Issues

Does the term "correspondence" encompass only letters with the result that the records sought do not come within the scope of the request?

Can the applicant raise the s. 19 ATIA exemption in order to justify non-disclosure in a s. 44 review?

Did the Canadian Food Inspection Agency err in its application of paras. 20(1)(b) and (c) to the records proposed to be disclosed?

Facts

This case deals with an application by H.J. Heinz Company of Canada Ltd. (Heinz) under subs. 44(1) of the ATIA.

The Canadian Food Inspection Agency (CFIA) received an access request for records containing information concerning a third party (Heinz). The records included information pertaining to the operations of the commercial enterprise or information that relates or pertains to matters of finance or commerce. CFIA invited Heinz to identify any information it wished to protect along with its explanation supporting the non-disclosure.

Heinz made submissions to CFIA indicating that the records should not be disclosed because the records contain financial, commercial, scientific and technical information that is confidential information supplied to CFIA by Heinz and that has been treated consistently as confidential by Heinz. Heinz further alleges that the records contain information, the disclosure of which could reasonably be expected to result in material loss to Heinz and could reasonably be expected to prejudice the competitive position of Heinz. Lastly, Heinz alleges that the disclosure of the information in the records would not be in the public interest.

CFIA determined that the applicant's justifications were insufficient to withhold all of the requested information. Therefore, CFIA informed Heinz of its intention to release the records, subject to certain redactions. Heinz thereafter applied for judicial review, seeking an order prohibiting the disclosure of the records or, alternatively, an order prohibiting the release of the records without redaction.

Decision

The application to prohibit the release of the records or portions was substantially allowed with costs.

Reasons

Issue 1
The initial request was for various documents pertaining to a variety of topics. The request was subsequently modified to include only "correspondence" related to specified topics. The applicant's submission that "correspondence" included letters only was rejected. The Court referred to the definition of "correspondence" in the Oxford Dictionary, 2nd ed., to conclude that, while "correspondence" includes letters, it is not so restricted and does include a "communication" as argued by the respondent.

Issue 2
The respondent's submission that s. 44 does not confer the right to oppose disclosure on the basis of exemptions or exclusion other than subs. 20(1) was rejected. Firstly, the Court distinguished St. John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.) stating (a) that the comments made therein to the effect that a third party's interest is limited to matters set out in subs. 20(1) were to be read in their context (which the Court herein restricted to St. John's argument that the records were not responsive to the request) and (b) that the Court's comments in St. John regarding s. 15 ATIA related to a discretionary exemption, not a mandatory one like the one at issue. Secondly, while the notice provision in s. 27 refers specifically to the provisions of s. 20, there is no such reference in s. 28. Section 28 provides that the third party may make "representations" as to why the record or part thereof should not be disclosed. They are no stated restrictions as to the representations available to the third party provided that they are relevant to the issue of disclosure. Finally, the Court, relying on Siemens Canada Ltd. v. Canada (Minister of Public Works and Government Services), [2001] F.C.J. No. 1654 (QL) (F.C.T.D.); aff'd [2002] F.C.J. No. 1475 (QL) (F.C.A.), concluded that if the s. 24 mandatory exemption was available to a third party (as found in Siemens), so too must be the mandatory exemption provided for in s. 19. To hold otherwise would yield an irrational and illogical result and one that would be contrary to the principles of statutory interpretation articulated in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.

Issue 3
The applicant must satisfy four requirements to establish that the para. 20(1)(b) exemption from disclosure is warranted:

• the information is financial, commercial, scientific or technical;
• the information is confidential;
• the information was supplied to the government institution by a "third party", and
• the information was treated consistently in a confidential manner.

With respect to the first requirement, the Court adopted the approach set out in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.) that the words therein are to be commonly understood. As a result, some, but not all of the information in the records qualified as being commercial, financial, scientific or technical.

With respect to the second requirement, the Court held that the applicant met the three-fold test laid out in Air Atonabee to establish confidentiality. More specifically, the Court was satisfied, based on the evidence, that Heinz' relationship with CFIA was consistent with the public interest as confidentiality of the information "enabled and encouraged [Heinz] to be open and frank with inspectors".

With respect to the third requirement, the Court found that although the records were created by CFIA, they contained information supplied by Heinz and only the latter can be subject to a para. 20(1)(b) analysis.

Finally, the evidence showed that the final requirement was met.

The applicant failed to demonstrate that disclosure would result in a reasonable expectation of probable harm to its competitive position pursuant to para. 20(1)(c). The threshold is probability, not possibility nor speculation.

The Court's obligation with respect to severance is found in s. 51 of the ATIA. Pursuant to that provision, the Court ordered that, except for the passages specifically severed, the records were to be disclosed.

Comments

The Attorney General of Canada has appealed this decision.

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