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Info Source Bulletin Number 28

Aventis Pasteur Limited v. Attorney General of Canada

Indexed as: Aventis Pasteur Ltd. v. Canada (Attorney General)

File No.:	T-808-02
Reference:	2004 FC 1371
Date of decision:	October 7, 2004
Before:	Kelen J.
Sections of ATIA / PA:	*Ss. 20(1)(b), (c) and (d) and 44 Access to Information Act* (ATIA)**

Abstract

Information the release of which could be used to determine other information that has been exempted from release under para. 20(1)(b) should also be exempted from disclosure under that provision
Government institutions should inform parties during the bidding process whether the financial terms of a contract, after it is awarded and after public funds are committed to it, will remain confidential

Issues

Was the information in question exempt as confidential financial and commercial information supplied to the Department pursuant to para. 20(1)(b)?
Was there a reasonable expectation that the disclosure of the information in question could result in material financial loss or gain or prejudice the applicant's competitive position pursuant to para. 20(1)(c)?
Was there a reasonable expectation that the disclosure of the information in question could interfere with contractual negotiations pursuant to para. 20(1)(d)?

Facts

Aventis Pasteur ("the applicant") was awarded a contract by Public Works for the supply of its influenza vaccine. The Public Works ATIP Office received a request for access under the ATIA to records containing the annual price per dose of the vaccine, the number of doses purchased per year from 2001 forward, and similar information. The applicant objected to the release of the unit prices per dose of vaccine, the quantities of doses and the volume ranges used to determine the price per dose, claiming that this information was exempt pursuant to paras. 20(1)(b), (c) and (d) of the ATIA. On review, the ATIP Office concluded that the unit prices per dose were exempt under paras. 20(1)(b) and (c), but that the quantities of doses and the volumes ranges were not. The applicant then sought judicial review on the ground that, because the total value of the contract was public, the release of the quantity of doses and volume ranges would allow a third party to determine the approximate unit prices of the vaccine, the very thing the ATIP Office had decided was exempt.

The only decision under judicial review was the decision to disclose the portions of the contract containing the quantity of doses and volume ranges. The decision to withhold the unit prices per dose was not before the Court.

Decision

The application was allowed on the basis of paras. 20(1)(b) and (c) ATIA.

Reasons

With respect to the standard of review, the Court reiterated that the standard of review under s. 44 ATIA is correctness, i.e. the Court will consider whether the information at issue ought to be disclosed on a de novo basis. Thus, the decision of Public Works to disclose is not owed any deference. On the question of onus, the Court referred to a number of decisions to the effect that a party seeking exemptions from disclosure bears a heavy onus to prove that the information is exempt from disclosure.

Issue 1

In order to bring the information in question within the exemption set out in para. 20(1)(b), the applicant must establish, on a balance of probabilities, that the information:

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

The Court was satisfied that conditions 1 and 4 had been met. The information was undoubtedly financial and commercial. Moreover, the applicant had consistently treated the information in a confidential manner.

With respect to condition 2, the jurisprudence sets out three criteria that must be met in order for the information to be considered confidential. These were summarized by MacKay J. in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.) at para. 42^[2].

The Court was satisfied that the first criterion of the Air Atonabee test had been met since the information in question was not available from any other source.

With respect to the second and third criteria of the Air Atonabee test, the Court here considered the direction given by the Federal Court of Appeal in Canada (Minister of Public Works and Government Services) v. Hi-Rise Group Inc., 2004 FCA 99. In that case, the Federal Court of Appeal considered an application by a commercial landlord to prevent the disclosure of rent being paid by the federal government for one of the landlord's buildings, as well as the option prices at which the building could be acquired. The Federal Court of Appeal had concluded, relying in part on the reasons of Strayer J. in Société Gamma Inc. v. Canada (Department of State) (1994), 79 F.T.R. 42 (F.C.T.D.), that the information in question was not confidential within the meaning of para. 20(1)(b) because the landlord could not reasonably have expected that the amounts paid by the government under the contract would be kept from the public.

While the Federal Court of Appeal relied upon Société Gamma for the proposition that the confidentiality of amounts paid or payable by a government pursuant to a contractual obligation with third parties is not confidential after the bidding process has been completed and the contract awarded, Kelen J. noted here that in Société Gamma the unit prices per word for the translation contract were not being disclosed and were not the subject of review by Justice Strayer. However, in the present case, there had been a history of confidentiality between the applicant and Public Works. Public Works had agreed in the past and in this case that the unit prices per dose were confidential financial and commercial information not to be disclosed. Accordingly, Hi-Rise Group Inc. did not apply here. Further, any other information in the contract which would disclose the unit price would also remain confidential. Public Works could not switch horses in midstream. It could not say the unit prices were confidential and then propose to disclose part of the contract which would enable the confidential part to be easily calculated.

With respect to the third criterion of the Air Atonabee test, whether the public benefit is fostered by keeping the information confidential, the Court concluded that since Public Works considered it in the public's benefit to withhold the unit prices, it followed that it was in the public's benefit to withhold information that enables a third party to calculate the approximate unit prices. Thus, the last criterion of the Air Atonabee test was met.

Turning to condition 3 of the para. 20(1)(b) test, the Court was of the view that the unit prices per dose in the different ranges of quantities and the volume ranges to which the unit prices applied were supplied by the applicant to the government and were not negotiated terms. The fact that the applicant selected one particular quantity within the volume range did not mean that that quantity was not part of the information supplied by the applicant.

The Court added in obiter that Public Works ought to inform parties during the bidding process whether the financial terms of a contract, after it is awarded and after public funds are committed to it, will remain confidential. The Court agreed with the Court of Appeal in Hi-Rise Group Inc., that "absent special circumstances, the public ought to know how its money is being spent, including the terms of the contract". This is to ensure that the government is accountable to the public. If Public Works decides that there is a public interest in maintaining the confidentiality of certain terms of a contract, then Public Works ought to make that decision, and make it known to companies submitting tenders or proposals. It should also clearly set out how the public benefit is fostered by maintaining confidentiality. Such a determination by Public Works would not foreclose a s. 44 review by the court, but it would go a long way to clarifying the expectations of the parties and identifying the public interest considerations involved.

Issue 2

It is well established that in order to rely on the exemption under para. 20(1)(c), the applicant must demonstrate, on a balance of probabilities, that there is a "reasonable expectation of probable harm." In this regard, it is not sufficient for the applicant to generally speculate as to the probability of harm which the disclosure would cause; rather, the applicant must clearly show that the disclosure will probably cause it harm.

After a careful review of the confidential evidence, the Court was satisfied that the information in question fell within the exemption in para. 20(1)(c). The disclosure of the information could reasonably be expected to prejudice the competitive position of the applicant in upcoming bids and result in financial loss to the applicant. Obviously, the applicant's competitors would undercut the prices charged by the applicant if at all possible. As indicated by counsel for the applicant, this prejudice would only be aggravated by the fact that the applicant would not have similar information about its competitors.

The Court further stated that whether it was in the public interest that the applicant's competitors know the price paid was a decision for Public Works to make before it called for future bids. Public Works should make clear to the parties submitting bids whether or not the ultimate contract, in all of its details, would be made public or kept confidential. If the contractor were informed in advance that the contract would be completely public, then para. 20(1)(c) would not apply.

Issue 3

The Court was not satisfied that the applicant has adduced any evidence of specific contract negotiations which would allegedly be interfered with if the information were disclosed. The applicant has an obligation to provide tangible evidence to discharge its burden under this exemption, which it has not satisfied.