Info Source Bulletin Number 29

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H.J. Heinz Company of Canada Ltd. and James Friel v. Attorney General of Canada

Indexed as: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

File No.:	T-2214-04; T-474-04
References:	2005 FC 1314; 2005 FC 1315
Date of decisions:	September 26, 2005
Before:	von Finckenstein J.
Sections of ATIA / PA:	Ss. 6, 20(1)(b), (c), 44 Access to Information Act (ATIA)

Abstract

• Request for access to third party's submissions respecting proposed amendments to Processed Products Regulations
• Third party's public policy concerns not "financial, commercial, scientific or technical information" pursuant to para. 20(1)(b)
• Mere speculation as to what a competitor might do not meeting para. 20(1)(c) test
• Relevancy not an exemption under the ATIA

Issues

1. Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(b)?
2. Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(c)?
3. Should the "study" not be released as it is allegedly irrelevant to the access request?

Facts

These were applications for judicial review, pursuant to s. 44 of the ATIA, of two Canadian Food Inspection Agency (CFIA) decisions to release information pursuant to an access request. The records at issue consisted of correspondence between the CFIA and the H.J. Heinz Company of Canada Ltd. ("Heinz"), as well as a presentation and a study on infant food consumption. CFIA informed Heinz of its decision to release redacted copies of the correspondence and the presentation and to release the study in its entirety. Heinz is asking the Court to order the non-disclosure of records, or that they be disclosed with specific redactions.

Decision

Applications dismissed.

Reasons

Issue 1 – Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(b)?

The Court cites its decision in AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 and reiterates that the starting point of any analysis of the application of the ATIA is the purpose clause found in subs. 2(1) which is both an interpretive tool and a benchmark for the application of the Act.

Recognizing the well established principles in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, the Court reiterates the six criteria applicable to both paras. 20(1)(b) and (c).

With respect to para. 20(1)(b), the information must be:

1. financial, commercial, scientific or technical information;
2. confidential in nature;
3. supplied to a government institution by a third party, and
4. treated consistently in a confidential manner by the third party.

In the case of para. 20(1)(c), there are two circumstances under either of which information is exempt from disclosure:

5. where the disclosure of the information could reasonably be expected to result in material financial loss or gain to a third party, or
6. where the disclosure of the information could reasonably be expected to prejudice the competitive position of a third party.

The correspondence between the CFIA and Heinz and the latter's a presentation were made in response to proposed amendments to the Processed Products Regulations. The access request specifically targets these submissions. To the extent that such submissions reveal any details about Heinz's operations, its marketing strategy or its future developments, they are, of course, confidential and should be protected. But that was not the case here. While the submissions may reveal the corporation's regulatory or lobbying strategy, these have nothing to do with its operations. The Court held that even giving the most generous interpretation to the words "financial, commercial, scientific or technical information", those submissions did not fit within that meaning. The Court held the view that the submissions in question merely revealed Heinz's public policy concerns and that such concerns were not financial, commercial, scientific or technical information within the meaning of para. 20(1)(b) of the ATIA. As a result, Heinz did not meet the first part of the Air Atonabee test.

Issue 2 – Should the Heinz documents be exempted from disclosure pursuant to para. 20(1)(c)?

Heinz essentially submitted that the release of the records would show a competitor that Heinz had made a submission and, in turn, a competitor could rely on Heinz's submission and not have to expand as much time, energy or resources in developing its own position or submission on the proposed changes to the Regulations in question. The Court rejected this argument and reiterated the test to meet for the successful application of para. 20(1)(c): the third party must demonstrate that the disclosure of information could reasonably be expected to result in material financial loss or gain to it or could reasonably be expected to prejudice its competitive position. On this point, the Court stated, at para. 19:

The Court reiterated what has been held in the past, that there is a heavy onus on the party attempting to prevent disclosure.

Issue 3 – Should the "study" not be released as it is allegedly irrelevant to the access request?

Heinz argued (1) that the study was not submitted to the CFIA nor to Agriculture Canada but to Health Canada and (2) that it was not submitted to Health Canada in response to the proposed amendments to the Regulations and as such, it should not fall within the scope of the access request.

The concept of relevancy is not contained in any of the exemptions under the Act and therefore has no merit in law in terms of justifying the non-disclosure of records irrelevant to the request. The fact that Heinz had submitted the study to Health Canada as opposed to the CFIA directly is of no relevance to the request itself. The record was in the CFIA file and dealt in a generic way with the subject-matter of the request. The Court held that it should therefore be disclosed in the spirit of the Act.

Comments

The third party is appealing this decision.

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