ARCHIVED - Info Source Bulletin Number 28

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Canadian Pacific Hotels Corporation v. Attorney General of Canada

Indexed as: Canadian Pacific Hotels Corp. v. Canada (Attorney General)

File No.:	T-616-01
Reference:	2004 FC 444
Date of decision:	March 25, 2004
Before:	Russell J.
Sections of ATIA / PA:	Ss. 2(1), 6, 20(1)(c) and (d), 44 Access to Information Act (ATIA)

Abstract

• Standard of review
• No exemption based on relevancy available to s. 44 ATIA applicant 
• More competitive environment not giving rise to a reasonable expectation of material financial loss or prejudice to third party's competitive position under para. 20(1)(c) ATIA
• Short and long term impact of disclosure upon on-going contractual negotiations

Issues

1. Can a third party on a s. 44 application raise relevance and scope of request objections to forestall disclosure?
2. Would release of the Crown leases give rise to a reasonable expectation of harm to the applicant under para. 20(1)(c)?
3. Would release of the Crown leases impact upon on-going contractual negotiations under para. 20(1)(d)?

Facts

The applicant, now FHR Real Estate Corporation, received a letter from the respondent, advising that the respondent had received a request under the ATIA for a copy of all agreements signed with Jasper Park Lodge since April 1, 1997. Attached to the letter were several documents the respondent was considering releasing, including commercial retail leases between tenants at Jasper Park Lodge and the applicant ("retail leases") and two agreements from 1969 and 1982 between Her Majesty the Queen in Right of Canada and Canadian National Railway Company ("Crown leases") in respect of lands in Jasper National Park on which Jasper Park Lodge is located.

In a letter to the respondent, the applicant opposed the disclosure of both the retail and Crown leases. In reply, the ATIP Coordinator advised the applicant of the respondent's decision to disclose the retail leases with certain key, confidential terms removed. This was acceptable to the applicant. The ATIP Coordinator also indicated that the respondent intended to release the Crown leases in their entirety. This decision is the subject of the applicant's s. 44 application. Amongst the arguments invoked by the applicant is that the Crown leases do not come within the scope of the request because they are not agreements signed since April 1997. The respondent is of the view that the leases should be disclosed because they are referenced in other documents that come within the request and because they carry a historical and contextual relevance for agreements signed since April 1997.

Decision

The application was allowed in part.

Reasons

Preliminary issue

The Court held that the appropriate standard of review applicable to the issues raised was that of correctness.

Issue 1

Parliament's intention as embodied in subs. 2(1) is that government information should be available to the public, and that any exception to this right of access should be limited and specific. Such limited and specific exceptions must be specifically set out in the Act. There is no exception based upon scope and relevance that a third party can rely upon when seeking review under s. 44.

The only place where relevance and scope come into play is in the context of s. 6 and the procedure for making a request for access. This is a facilitating provision. Sufficient detail is required to permit identification of a record and adequate response to the request. The wording of s. 6 contains no prohibition against disclosing documents that are not relevant to the request. In fact, s. 6 does not even address the concept of relevancy. It merely stipulates that a request must be made in writing and must provide sufficient detail to allow the identification of the record requested. It would take a substantial amount of reading in to conclude that this imposes an obligation on the government institution to refrain from disclosing information that is not relevant to the request. Bearing in mind the underlying objectives of Parliament in enacting the Act, there is no exemption available to the applicant based upon relevancy.

Issue 2

In order to invoke para. 20(1)(c), the applicant bears the burden of demonstrating, on a balance of probabilities, that there is a reasonable expectation of probable harm to the applicant's competitive or financial position that would result from disclosure. The evidence required to justify an exemption under this provision must be detailed and convincing and must demonstrate a direct link between disclosure and the alleged harm. Speculation is not sufficient. The applicant must demonstrate a reasonable expectation of harm.

The evidence brought forward by the applicant on this ground remains in the realm of speculation. The applicant's argument is, essentially, that disclosure of the key terms of the Crown leases could subject the applicant to a much more competitive environment concerning the Jasper Park Lodge than it has had to content with in the past. However, a more competitive environment does not give rise to a reasonable expectation of a material financial loss or prejudice to the applicant's competitive position within the meaning of para. 20(1)(c) and its interpretive jurisprudence. The connection is too tenuous and not sufficiently proven in this case.

Issue 3

Taking into account the legal burden on the applicant to establish real, as opposed to speculative, interference with contractual negotiations, and the need for a direct link between disclosure and the harm envisaged, the applicant has met the burden on this ground. However, the harm referred to is temporary and not perpetual; it arises out of the exigencies of a particular situation faced by the applicant.

With these factors in mind, the Court took the view that the Crown leases should be disclosed but in a redacted form to ensure that the harm envisaged by the applicant under para. 20(1)(d) does not materialize. Once the dangers of the immediate situation have passed, the Court took the view that the policy and specific wording of the Act required the terms of the Crown leases to be disclosed in their entirety.

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