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Info Source Bulletin Number 27

SNC Lavalin Inc. v. Minister for International Co-operation and Minister of Foreign Affairs

Indexed as: SNC Lavalin Inc. v. Canada (Minister of International Co-operation)

File No.:	T-387-01
References:	2003 FCT 681; [2003] F.C.J. No. 870 (QL)
Date of decision:	May 30, 2003
Before:	Gibson J.
Sections of ATIA / PA:	*Ss. 19, 20, 27, 28 and 44(1) Access to Information Act* (ATIA)**

Abstract

Representations made pursuant to subs. 28(1) can be made only with respect to an exemption arising under s. 20 ATIA
Information not confidential
Description of harm in conditional language and speculative nature thereof not meeting test of paras 20(1)(c) and (d)

Issues

Can the third party, in the course of a s. 44 application for judicial review, claim an exemption pursuant to s. 19 of the ATIA and, if so, has it met the burden placed on it in respect of that exemption?
Has the third party met the burden placed on it in respect of the exemption claimed pursuant to s. 20 of the ATIA?

Facts

SNC Lavalin (the "applicant") was advised as a third party that the Access to Information Coordinator for CIDA had received a request under the ATIA for auditors' working papers related to the Comprehensive Audit of the River Nile Protection and Development Project and intended to disclose some records in response. The records proposed to be disclosed were made available to the applicant. The applicant made representations to the head of CIDA as to why the records or parts thereof should not be disclosed, as contemplated in subs. 28(1) of the ATIA. The head of CIDA made a decision to disclose the records, or parts thereof, and gave notice of his or her decision to the applicant, once again as provided in subs. 28(1) of the ATIA.

The applicant sought an order exempting the records concerned from disclosure or, in the alternative, further severance of the records to be disclosed. After the hearing of the application by the Federal Court, Trial Division, the respondent Ministers agreed to further severance pursuant to s. 19 of the ATIA, but not to a degree that rendered the application moot.

Decision

The application was dismissed.

Reasons

Issue 1

Subsection 27(1) of the ATIA requires the head of a government institution, subject to subs. 27(2), to provide written notice to a third party where a requester seeks access to records that are, in the reasonable belief of the head of the government institution, within the scope of the mandatory exemptions described in subs. 20(1) of the ATIA.

The Court found particularly significant the fact that the ATIA contains no equivalent obligation to notify a third party and to provide an opportunity to make representations where a record requested might be the subject of another mandatory exemption such as ss. 13, 19, or 24 ATIA.

Thus, unless the opportunity to make representations provided by s. 28 of the ATIA is restricted to representations as to the grounds for exemption set out in s. 20 of the ATIA, a third party to whom notice is given as required by s. 27 of the ATIA would be provided with an opportunity to make representations as to exemptions beyond the scope of s. 20 in circumstances where no equivalent opportunity to make representations would be extended to a third party in relation to a record that might fall within a mandatory exemption such as is provided by ss. 13, 19, or 24.

The words of the ATIA are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the ATIA, the object of the ATIA, and the intention of Parliament. To read the words of subs. 28(1) of the ATIA to confer on a third party a right to make representations beyond the scope of exemptions provided by s. 20 of the ATIA would require the "reading in" of words into that subsection. Given that the purpose of the ATIA, as clearly enunciated by Parliament, is to facilitate access to government information and that the provision of independent review of proposed disclosure is only a "fairness" adjunct to that purpose and, given the entire context of the ATIA, and the somewhat ambiguous tenor of the grammatical and ordinary sense of the words of subss. 27(1) and 28(1), the Court found that the applicant was not entitled to rely on the s. 19 exemption in its subs. 28(1) representations.

Issue 2

The basic purpose of the ATIA is to provide the public with a right of access to information in records under government control. Exceptions to that right of access should be limited and specific. Public access ought not be frustrated except in the clearest of circumstances. A heavy burden of persuasion rests upon the party resisting disclosure.

Exemptions provided by s. 20 of the ATIA are mandatory. At the same time they are forward looking and thus the harm contemplated by them is, of necessity, not realized but rather potential. The applicant here fails to meet the criteria for obtaining an exemption under paras. 20(1)(b), (c), or (d). Under para. 20(1)(b), the applicant failed to show that the information supplied to CIDA was confidential in nature by an objective standard, taking into account its substance and the purposes for which and the conditions under which it was prepared or provided. Nothing on the record indicated that the information was ever considered by CIDA to be confidential, nor that the applicant at any time before it was consulted pursuant to s. 27 of the ATIA communicated to the respondents its view that the information it had supplied to CIDA was confidential, this notwithstanding the applicant's sophistication and experience.

Under para. 20(1)(c), the applicant's speculative statement of expectation of loss, using conditional language, failed to meet the standard of reasonable expectation of material financial loss or prejudice to its competitive position. It is simply not sufficient for the applicant to establish that harm might result from the disclosure. Similarly, the applicant failed to meet the heavy burden on it to demonstrate under para. 20(1)(d) the negative impact it could reasonably expect to have regarding contractual or other negotiations, given that its claim was couched largely in conditional language.

Comments

This case is being appealed.