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Info Source Bulletin Number 30

Les Viandes Du Breton Inc. v. Canadian Food Inspection Agency

Indexed as: Viandes du Breton Inc. v. Canada (Canadian Food Inspection Agency)

File Nos.:	T-984-05
Reference:	2006 FC 335
Date of decision:	March 14, 2006
Before:	Gauthier J.
Sections of ATIA / PA:	Ss. 2, 3, 4, 20(1)(b), 27(1), 27(3), 28, 44 Access to Information Act (ATIA)
Other statutes:	Canadian Food Inspection Agency Act, S.C. 1997, c. 6, s. 13(3); Veterinary Surgeons Act, R.S.Q., c. M-8, ss. 7, 8 and Code of Ethics of Veterinary Surgeons, R.Q., c. M-8, r. 4.01, s. 24; Professional Code, R.S.Q., c. C-26; Civil Code of Québec, S.Q. 1991, c. 64, art. 2588; Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 9

Abstract

Application for review of a decision of the CFIA to release inspection reports relating to the third party
The CFIA complied with its duty of procedural fairness
Para. 20(1)(b) of the ATIA not applicable
Inspection reports not covered by veterinary surgeons' professional secrecy

Issue

(1) Whether the CFIA breached its duty of procedural fairness by failing to give to the third party a copy of the access request and by failing to give (or by giving insufficient) reasons for its decision.

(2) Whether inspection reports are protected by para. 20(1)(b) of the ATIA and by veterinary surgeons' professional secrecy which may be waived only by the third party.

Facts

This was an application by Viandes du Breton (the applicant) under s. 44 of the ATIA for review of a decision of the Canadian Food Inspection Agency (the CFIA) to release inspection reports made in 2003 and 2004.

The CFIA received an access request in respect of, inter alia, [translation] "entry and assessment reports relating to the slaughterhouses and processing units […] (form AGR-1427)" of the applicant. Because those records contained third party information, the CFIA first gave the applicant notice of its intent to disclose the inspection reports. The applicant made representations which, in the opinion of the CFIA, did not meet the criteria for the exemptions set out in subs. 20(1) of the ATIA. The CFIA therefore informed the applicant of its rights under s. 44.

In support of its application for judicial review, the applicant argued that the CFIA had breached its duty of procedural fairness by failing to provide it with a copy of the access request and that the CFIA failed to give reasons or gave insufficient reasons. More specifically, the applicant asserted that the "entry and assessment reports" are not inspection reports and, therefore, that if it had obtained a copy of the access request it would have been able to make the argument that there were no records that were responsive to the access request. On the question of the duty to provide reasons, it argued that the CFIA had a duty to describe, in its s. 28 notice, its rationale in greater detail in relation to each of the arguments that the applicant had raised in response to the notice under subs. 27(1) of the ATIA. The applicant also argued that the inspection reports could not be disclosed because they fell within the exemption set out in para. 20(1)(b) and, moreover, were protected by veterinary surgeons' professional secrecy, which may be waived only by the applicant.

Decision

The application for review was dismissed with costs.

Reasons

The Court started by determining the standard of review that applied to the decision. On the first point raised, the breach of the duty of procedural fairness, the Court reiterated that it was required to intervene if a breach were found to have occurred.^[15] On the second point, the exemption to disclosure under subs. 20(1) of the ATIA and the protection conferred by veterinary surgeons' professional secrecy, the Court concluded that because these were questions of mixed fact and law, it had to apply the standard of review of correctness.^[16]

Issue 1

Relying on Baker,^[17] the Court examined the content of the duty of procedural fairness by analyzing the context of the ATIA and the rights in question. Applying Baker, three factors were considered. First, the nature of the decision and the process provided for by the ATIA; second, the nature of the statutory scheme; and third, the impact of the decision. In its contextual analysis, the Court concluded that the duty of procedural fairness that applied in this case did not require that a copy of the access request be provided to the applicant. However, the Court said that the CFIA was required to describe the subject matter of the request accurately and in sufficient detail and that it was satisfied with the description provided. The Court added, in obiter, that it would be wise, in future, for the CFIA to quote the description in the access request verbatim and confirm that the requirements of s. 4 of the ATIA (right of access) had in fact been met. The Court also stated that it was satisfied that the duty to give reasons for the decision had been met by the CFIA. Having regard to the discussions between the parties, the nature of the records to be disclosed and the access request, the CFIA was not required to provide further details than those it provided in its s. 28 letter. The Court therefore concluded that the CFIA had not breached its duty of procedural fairness.

Issue 2

The Court had to consider whether the records were protected by the exemption set out in para. 20(1)(b)^[18] of the ATIA and by the veterinary surgeons' professional secrecy. Relying on Canada Packers,^[19] the Court concluded that para. 20(1)(b) was not relevant in this case because none of the information in the inspection reports had been supplied by the applicant, and it consisted, rather, of judgments by government inspectors regarding what they themselves had observed. The Court further concluded that the information in the reports should not be treated as confidential. It adopted the comments made by Pinard J. in Coopérative fédérée du Québec,^[20] that "these records are collected by a government agency and in legal terms constitute records of the Government of Canada". The Court noted that the applicant was legally required to submit to inspection by the CFIA and that the fact that it had opened its doors to the CFIA inspectors did not mean that it had provided the information in the reports itself. The Court also concluded that, having regard to its past experience, the applicant should have known that inspection reports were, in general, disclosed.^[21] The fact that the applicant treated the reports as confidential internally does not change how the CFIA treats them and the principles set out in the ATIA.

Relying on s. 24 of the Code of Ethics of Veterinary Surgeons, the applicant argued that it had not waived the professional secrecy by which the inspectors – veterinarians – are bound and citing art. 2588 of the Civil Code of Québec and s. 9 of the Quebec Charter of Human Rights and Freedoms, it asked that the veterinary surgeon's duty of professional secrecy to the client be honoured. The CFIA argued that the Canadian Food Inspection Agency Act did not require that the inspectors be veterinarians and that even if this were the case their issuance of inspection reports had nothing to do with the practice of that profession. The Court was not satisfied that inspections and issuance of reports are acts that fall under the Veterinary Surgeons Act and that the applicant is actually the client of the veterinary surgeon inspectors, and found that the reports were not subject to professional secrecy.

Comments

The applicant, Viandes du Breton, has appealed this decision.