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Info Source Bulletin Number 28

Canada Post Corporation v. Minister of Public Works and Government Services Canada

Indexed as: Canada Post Corp. v. Canada (Minister of Public Works and Government Services)

File No.:	T-1265-02^[9]
Reference:	2004 FC 270
Date of decision:	February 24, 2004
Before:	Heneghan J.
Sections of ATIA / PA:	Ss. 20(1)(b), (c) and 25 Access to Information Act (ATIA)

Abstract

Standard of review is correctness for a s. 20 ATIA analysis
Objective standard required to determine if information is "confidential" pursuant to para. 20(1)(b)
Para. 20(1)(c) requires more than mere speculation that probable harm would result if records were released.

Issues

Are the documents exempt from disclosure pursuant to para. 20(1)(b) of the Access to Information Act?
Are the documents exempt from disclosure pursuant to para. 20(1)(c) of the Access to Information Act in that their disclosure could reasonably be expected to prejudice the applicant's competitive position or result in material financial gains for its competitors?

Facts

Canada Post (the applicant) seeks judicial review of the decision of the Minister of Public Works and Government Services Canada (the respondent) to release portions of certain records, in a severed form. According to the applicant, the two documents in question (a letter and a strategy document) are exempt from disclosure pursuant to paras. 20(1)(b) and (c) of the Access to Information Act.

The applicant argues that the information is exempt from disclosure pursuant to para. 20(1)(b) since (1) the information is of a commercial nature; (2) the information is of a confidential nature since there is no proof that it is in the public domain, it relates to a major business venture and concerns have been previously expressed regarding public disclosure; (3) the records were supplied to a government institution by the applicant; and (4) the information was consistently treated in a confidential manner as demonstrated by mutual non-disclosure agreements executed with other parties.

The applicant further argues that the information is exempt from disclosure pursuant to para. 20(1)(c) and that the filed affidavit meets the evidentiary burden.

The respondent argues that simply asserting that the information is confidential is insufficient; it must be established objectively. The information in question is not confidential since it was communicated to the government within a bidding process whereby the applicant was successful. Relying on Société Gamma^[10], the respondent takes the position that generally, such a proposal for a contract is not immune from disclosure once the contract is granted. Furthermore, the respondent relies on the fact that the applicant had been advised that this information would not be kept confidential.

As to para. 20(1)(c), the respondent states that the applicant has failed to show on a balance of probabilities that a reasonable expectation of probable harm will flow from disclosure. Mere possibility of harm is insufficient.

Decision

The application for judicial review was dismissed.

Reasons

Preliminary issue

As per Wyeth-Ayerst^[11], in a case involving the applicability of s. 20 of the Act, the standard of review is correctness. The burden of showing that a record falls within an excepted class lies upon the party seeking to prevent disclosure, here the third party. That burden is proof on the balance of probabilities.

Issue 1 - Paragraph 20(1)b)

Justice Heneghan, in her analysis of para. 20(1)(b), relied heavily on the criteria set out in Air Atonabee^[12] and St. Joseph Corp.^[13] The analysis is broken down into three components:

The information must relate to financial, commercial, scientific or technical matters : Justice Heneghan was satisfied that the information in question was "commercial information".
The information must be confidential in nature, assessed against an objective standard that takes into account the context of the information, its purpose and the conditions under which it was prepared and communicated. Relying on the indicia of confidentiality set out in Air Atonabee, Heneghan J. held as follows:
1. Whether the information content is already available to the public: There was no proof here that the information was publicly available.
2. Whether the information originated and was communicated in a reasonable expectation of confidence that it would not be disclosed: Justice Heneghan concluded that the manner in which the information was communicated to the government did not show that the applicant held a reasonable expectation of confidence. Furthermore, the disputed letter indicated that the respondent had clearly said that it could provide no guarantee of non-disclosure.
3. Whether the relationship between the government institution and the third party would be fostered for the public benefit in keeping the information confidential: Justice Heneghan concluded that there would be no benefit to the public in not disclosing this type of information.
The information must be supplied to a government institution by a third party: The information was indeed supplied by the applicant to the respondent.
The information must be consistently treated as confidential by the third party. Justice Heneghan concluded that the applicant failed to "consistently" treat the information as confidential, by providing the information to the respondent despite its knowledge that it was not subject to any confidentiality agreement or undertaking from the respondent. The Court applied the reasoning in Société Gamma. In so doing it discussed briefly the policy rationale behind the Act, stating that disclosure of information is the rule, not the exception. This includes the tendering process for government contracts. Potential bidders should know that when submitting documents as part of a bidding process, those documents could not be insulated from the government's obligation to disclose, as part of its accountability for the expenditure of public funds.

Severance argument

The applicant argued that the fact that the respondent had severed parts of the documents in question was an implicit recognition that the records in total contained confidential information. Justice Heneghan who applied the Rubin decision^[14] did not retain this argument. In Rubin, the Federal Court of Appeal had concluded that the delegate of the institution is required to examine the documents in order to decide what does or does not fit into para. 20(1)(b). The onus is therefore still on the applicant to prove that the non-severed part of the document also falls under para. 20(1)(b).

Issue 2

According to caselaw, an exemption to access pursuant to para. 20(1)(c) requires proof, on a balance of probabilities, of a reasonable expectation of probable harm. While the applicant's affidavit contained a good deal of information about the applicant's unique position in the market place and the alleged uniqueness of its product, the Court held that "this does not indicate that disclosure would likely result in a reasonable expectation of probable harm to its competitive position or financial gain to its competitors". It was only mere speculation.

Comments

The appeal filed by Canada Post Corp. was dismissed (2004 FCA 395). With respect to para. 20(1)(b), the Court held that the evidence allowed Heneghan J. to conclude that the relevant information had not been treated consistently in a confidential manner by CPC. In addition, Heneghan J. made no overriding error in not finding that keeping the information confidential would foster the relationship between the third party and the government institution for the public benefit. As to para. 20(1)(c), the Court was of the view that Heneghan J. applied the proper test despite her use of the word "would" rather than "could"^[15] in her analysis of para. 20(1)(c).

Canada Post was denied leave to appeal to the Supreme Court of Canada on May 17, 2005.