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Info Source Bulletin Number 27

Dyane Dussault v. Canada Customs and Revenue Agency and Canada Post Corporation

Indexed as: Dussault v. Canada (Customs and Revenue Agency)

File No.:	T-1062-01
References:	2003 FC 973; [2003] F.C.J. No. 1253 (QL)
Date of decision:	August 25, 2003
Before:	Dawson J.
Section of ATIA / PA	*S. 20(1)(c) Access to Information Act* (ATIA)**

Abstract

Standard of review applicable to Minister's decision
Burden of proof on party resisting disclosure
Reasonable expectation of probable harm to competitive position met

Issue

Did the Canada Customs and Revenue Agency (CCRA) establish, on a balance of probabilities, that Canada Post Corporation (CPC) had a reasonable expectation of probable harm if the financial terms of an agreement were disclosed?

Facts

This is an application under s. 41 of the Access to Information Act for judicial review of the decision of CCRA refusing to disclose certain information. The applicant, Dussault, was requesting access to a memorandum of understanding between CCRA and CPC regarding the roles, responsibilities, and financial arrangements pertaining to the processing and clearance of international mail and parcels. CCRA identified the "Agreement Concerning Processing and Clearance of Postal Imports" as relevant to the request. The agreement in question is a commercial fee-for-service contract between CPC and CCRA, whereby CPC provides services that were previously carried out by CCRA.

Upon notification of the access request by CCRA, CPC identified various portions of the agreement that it believed should be exempted under para. 20(1)(c) of the Access to Information Act. CCRA agreed and a copy of the agreement was provided to the applicant, minus the exempted portions. The applicant disagreed and filed a complaint with the Office of the Information Commissioner. As a result of the Commissioner's investigation, CCRA agreed to disclose additional information to the applicant, but maintained that the remainder of the record was exempted under para. 20(1)(c) on the ground that its disclosure would injure the competitive position of CPC. The Commissioner agreed with this assessment.

The portions of the agreement that were not disclosed are described as the financial terms of the agreement. In an affidavit filed in confidence, the Director of Economic Strategy and Regulatory Affairs at CPC explained that, since CPC is a commercial undertaking that operates in a competitive environment, and that CPC has no statutory protection from private-sector competition, it his highly probable that the information contained in the agreement would be used by competitors to bid against CPC for the provision of CCRA services. CPC would be particularly disadvantaged in any future bidding process since it would not be able to obtain similar information with respect to its competitor's operations.

Decision

The application for judicial review was dismissed.

Reasons

The standard of review to be applied to the decision of CCRA is correctness. The person resisting disclosure must establish, on a balance of probabilities, a reasonable expectation of probable harm if the information is disclosed; this does not consist in a general assertion or speculative evidence of that harm. There must also be a direct linkage between the disclosure and the harm alleged.

The Court concluded that CCRA had indeed established, on a balance of probabilities, that CPC had a reasonable expectation of probable harm if the remaining information was disclosed. Three factors led to this conclusion:

The information found in the agreement provided a fairly accurate picture of the structure and nature of the compensation negotiated between CCRA and CPC. As such, this information could be used by competitors to bid against CPC for the services provided to CCRA.
The CPC director testified that if the information were disclosed, it would be highly probable that it would be used by competitors to bid against CPC. Considerations relating to the specific financial harm was provided by the director. The evidence was not contradicted or repudiated by the applicant.
The applicant's employer, Global Public Affairs, is on Industry Canada's lobbyist registration as a lobbyist for UPS. In turn, UPS is involved in a NAFTA proceeding with CCRA, and UPS and other such courier companies could compete against CPC for the provision of services to CCRA.
As well, the Court had regard to the report and recommendations of the Information Commissioner.

The applicant had argued that there was no evidence that the services would be performed by others, particularly since CCRA had never publicly tendered the services, that for another party to perform the services, an amendment to the Customs Act would be required, and that no linkage between the asserted harm and the information existed due to CPC's existing monopoly on mail delivery.

Judge Dawson disagreed with the applicant's first argument on the basis that the agreement could be terminated by either party giving 120 days' notice, and that, prior to 1992, CCRA performed the tasks now contracted to CPC. As for the argument that an amendment to the Customs Act would be necessary to permit a competitor to provide the services, Judge Dawson disagreed, saying that the relevant section of the Act (s. 147.1 Customs Act^[1]) is permissive, not mandatory. CCRA would therefore be able to contract out or even perform the functions itself upon termination of the agreement with CPC. As to the applicant's final argument that CPC has a monopoly on the services performed, the Judge determined that the exclusive privilege pertains to the collection, transmission, and delivery of letters, not the collection of duties and taxes, as described in the agreement. A number of CPC's competitors would therefore be capable of performing those services.

Comments

This decision was not appealed.