ARCHIVED - Info Source Bulletin Number 28

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Brookfield Lepage Johnson Controls Facility Management Services and Minister of Public Works and Government Services Canada

Indexed as: Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services)

File No.:	A-164-03
Reference:	2004 FCA 214
Date of decision:	May 31, 2004
Before:	Stone, Sexton, and Evans JJ.A.
Sections of ATIA / PA:	Ss. 20(1)(c), 44 Access to Information Act (ATIA)

Abstract

• Paragraph 20(1)(c) is to be read disjunctively
• Having established a reasonable expectation that disclosure will probably prejudice its competitive position, an applicant does not also have to prove "harm"

Issues

1. Has the Applications Judge misinterpreted para. 20(1)(c) ATIA when she decided that the records at issue were not covered by that provision?
2. Is para. 20(1)(c) ATIA to be read disjunctively, and does it require proof both that disclosure will probably prejudice the applicant's competitive position and also harm?

Facts

The applicant had sought an order prohibiting the respondent from disclosing certain documents which the applicant had submitted to the respondent as part of its bid in response to requests for proposals to provide property management services for properties belonging to the Government of Canada. The Applications Judge denied the application (2003 FCT 254). Before the Court of Appeal the applicant challenged the Applications Judge's conclusion that disclosure was not prohibited by para. 20(1)(c) on the grounds that she had misinterpreted that provision when she decided the records in question were not covered by it. The applicant pointed to the following sentence in the Applications Judge's decision (para. 22) to support its challenge:  "At its highest, it can only be said that the competitive position of the application will be prejudiced."^[6]

Decision

The application was dismissed with costs.

Reasons

The two limbs of para. 20(1)(c) (financial loss or gain on the one hand, and competitive prejudice on the other) are disjunctive. Thus, an applicant who establishes a reasonable expectation of probable competitive prejudice is entitled to require that the records in dispute not be disclosed. Having established a reasonable expectation that disclosure will probably prejudice its competitive position, an applicant does not also have to prove "harm". However, this may be no more than a matter of semantics, because the concept of prejudice itself implies harm.

The Court found that counsel for the applicant had not discharged the onus of establishing that it should be inferred from the disputed sentence that the Applications Judge misinterpreted the Act or the jurisprudence in the ways alleged. The sentence must be read in the entire context of the Judge's discussion of para. 20(1)(c). The reasons indicate that the Applications Judge meant to conclude that, on the basis of the evidence, there was no reasonable expectation of probable prejudice to BLJC's competitive position as a result of disclosure. Nor do they support the view that the Applications Judge misinterpreted the Act or the relevant jurisprudence.

While the Court could not be sure what the Judge did mean by the one sentence in question, this was not enough to justify allowing the appeal given that the Court was not satisfied that it showed that the Applications Judge must have erred in law in dismissing the application. Judges are surely to be given credit for not intending to contradict themselves in consecutive sentences, especially when, in all other respects, their reasons, including those dealings with para. 20(1)(c), are cogent and careful and, apparently, not thought by experienced counsel to provide any basis for an appeal.

Comments

Brookfield Lepage's application for leave to appeal to the Supreme Court of Canada was denied on January 21, 2005.

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