Date: 20060314
Docket: T-984-05
Citation: 2006 FC 335
[UNREVISED ENGLISH
CERTIFIED TRANSLATION ]
Ottawa, Ontario, March 14, 2006
PRESENT: The
Honourable Madam Justice Johanne Gauthier
BETWEEN:
LES
VIANDES DU BRETON INC.
Applicant
and
CANADIAN
FOOD INSPECTION AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1]
Les
Viandes du Breton Inc. is seeking a review, pursuant to subsection 44(1) of the
Access to Information Act, R.S.C. 1985, c. A-1 (the Act), of a decision by
the Canadian Food Inspection Agency (the Agency) authorizing the disclosure of
inspection reports (form AGR-1427) issued in 2003 and 2004 concerning its
abattoirs and meat processing units.
BACKGROUND
[2]
The
applicant is an agricultural business that produces organic pork. Its principal
place of business is in Rivière-du-Loup. As a meat processing unit, it is the
subject of regular inspections by Agency inspectors who, when making these
inspections, prepare a report of their observations using form AGR-1427.
[3]
On
March 8, 2005, the Agency received an access to information request from a
person whose identity remains confidential, but who is known to be in the [TRANSLATION]
“media” category.
[4]
The
request sought the following information:
(1) visit and evaluation reports for abattoirs
and meat processing units in Quebec (form AGR-1427) for 2001, 2002, 2003 and
2004;
(2) a complete list of the agri-food
establishments under the jurisdiction of the Agency in Quebec.
[5]
On
March 22, the request was amended orally: it now includes only the reports for
2003 and 2004.
[6]
In
checking the records covered by the request, the Agency identified some fifteen
reports on the applicant's facilities. As these records are the subject of a
confidentiality order, the Court will deal with the information they contain only
in very general terms.
[7]
On
May 11, 2005, the Agency notified the applicant that it had received
the access request [TRANSLATION] “concerning records relating to inspection
reports for abattoirs and meat processing units in Quebec (form
AGR-1427)”. All the reports the Agency proposed to disclose were attached to
this notice.
[8]
On
May 30, 2005, the applicant notified the Agency that it objected to the
disclosure of the inspection reports. First, it submitted that the records the
Agency proposed disclosing were not records within the meaning of section 3 of
the Act (this argument was discontinued at the hearing).
[9]
Then,
relying on subsection 20(1) of the Act, the applicant submitted that the
disclosure of this information could result in financial loss to the business,
as well as prejudicing its competitive position and future negotiations. In the
applicant's submission, the reports contain confidential technical information
on its facilities and its management and commercial operating methods. It
maintained that the reports were also protected by the professional secrecy of
the veterinary surgeon who prepared them.
[10]
The
applicant also requested a copy of the access to information request so it
could submit its representations on the correlation between the request and the
records the Agency was proposing to make public.
[11]
On
May 31, 2005, the Agency notified the applicant of its decision to disclose the
records sent to it. It explained its decision as follows:
[translation]
We have
reviewed your representations and concluded that they do not meet the exception
criteria set out in subsection 20(1) of the Act. As federal agencies are
required to disclose as much information as possible (section 25), we will
accordingly proceed with disclosure of the records to the person requesting
access.
[12]
In
accordance with section 28 of the Act, the Agency informed the applicant of its
rights under section 44 of the Act.
[13]
It
was only as part of the application for review that the applicant was able to
obtain a copy of the access request (October 11, 2005) and question the senior
analyst who signed the letter dated May 31, 2005.
ISSUES
[14]
The
applicant submits that the Agency breached its duty of procedural fairness by
not giving it a copy of the request. It further submits that no reasons or
insufficient reasons were given for the Agency's decision.
[15]
The
applicant further argues that the Agency cannot disclose the inspection reports
because they fall under the exception provided for in paragraph 20(1)(b)
of the Act and, in addition, are protected by professional secrecy which only
the applicant could waive.
ANALYSIS
[16]
The
Court must first determine the standard of review to be used. Where a breach of
procedural fairness is concerned, there is no reason to perform a pragmatic and
functional analysis. If there was a breach, the Court must intervene (Ha v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No 174 (F.C.A.) (QL),
paragraphs 42 to 45).
[17]
The
issue of whether the records are exempt under subsection 20(1) of the Act or
are protected by the professional secrecy of the veterinary surgeon is a question
of mixed fact and law, since the Agency must interpret the exceptions based on
the facts before it. In Wyeth-Ayerst Canada Inc. v. Canada (Attorney
General), [2003] F.C.J. No. 916 (F.C.A.) (QL), Chief Justice Richard
determined by means of the pragmatic and functional approach the standard of
review applicable to a question which I consider to be entirely comparable to
the one that was before the Agency in the case at bar. The Court adopts the
reasoning found at paragraphs 11 to 15 of Wyeth-Ayerst, above, and finds
that the standard of review applicable here is correctness.
A) Procedural
fairness
[18]
The
applicant emphasizes what it calls the lack of consistency between the access request
and the notice it received on May 11, 2005. In its view, if the Agency had
given it a copy of the request it could have relied on a further argument,
namely, that there are no records corresponding to the access request. In its
submission, the inspection reports cannot be regarded as visit and evaluation
reports. It further submits that disclosure of the access request, which it
specifically requested, would have enabled it to determine the identity of the person
requesting access and make representations in this regard. It considers that
there was therefore a breach of its right to make representations [TRANSLATION]
“based on accurate information”.
[19]
On
the duty to provide reasons, the applicant submits that the Agency had a duty
to describe its reasoning in greater detail on each of the arguments it made in
its letter of May 30.
[20]
In
its submission, the content of the letter of May 31 did not enable it to fully
exercise its right to have the decision reviewed pursuant to section 44 of the
Act.
[21]
The
content of the duty of procedural fairness varies according to the context. As
the Supreme Court of Canada indicated in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 21, the
content of this duty, which is flexible and variable, depends on an
appreciation of the context of the particular statute and the rights affected.
The Court must accordingly analyze the situation considering inter alia
the factors mentioned in Baker, above.
[22]
The
first factor, namely, the nature of the decision and the process set out in the
Act, is used to determine how close the administrative process is to the
judicial process. The Court must consider the decision-maker's function, the
nature of the agency and the process to be followed. This analysis will take
place at the same time as the analysis of the second factor (the nature of the
statutory scheme), the primary purpose of which is to determine whether a right
of appeal or judicial review exists.
[23]
The
Act provides that a request for access to a record shall be made in writing to
the government institution that has control of the record. A reply is to be
given quickly, usually within 30 days. If disclosure is refused, the person
requesting access may file a complaint with the Information Commissioner and
then ask to have that decision reviewed by the Federal Court.
[24]
The
primary aim of the Act is to expand access to records of the federal
government, establishing the principle of the public's right to their
disclosure. Accordingly, the right of a federal institution to refuse
disclosure is subject to specific and limited exceptions.
[25]
When
the federal institution determines that no exception is applicable and that a
record should be disclosed, it must under subsection 27(1) give notice of its
intention to disclose the record to any third party directly affected by the
information to be disclosed within 30 days after the request is received.
However, this provision indicates that the notice should only be given if the
third party can reasonably be located.
[26]
Subsection
27(3) describes certain points that this notice must contain, namely:
(a) a statement that the head of the
government institution giving the notice intends to release a record or part
thereof that might contain material or information described in subsection (1);
(b) a description of the contents of the
record or part thereof that, as the case may be, belong to, were supplied by or
relate to the third party to whom the notice is given;
(c) a statement that the third party may,
within 20 days after the notice is given, make representations to the head of
the government institution that has control of the record as to why the record
or part thereof should not be disclosed.
[27]
The
right of the third party to make representations is specifically set out in
section 28 of the Act, which also indicates the time limit within which
such representations, generally made in writing, must be submitted.
[28]
The
Act provides that the notice of a decision to disclose a record must be sent
after receiving the representations of the third party or after the time limit
for receiving such comments has expired. Such notice must mention the third
party's right to seek judicial review and indicate that, if this remedy is not
exercised, the record will be disclosed in whole or in part.
[29]
The
right to seek judicial review and the right to complain to the Information
Commissioner and seek review of the Commissioner’s decision are an integral
part of the purpose of the Act which, as indicated in section 2, provides
that decisions of federal institutions should be reviewed independently of
government.
[30]
The
remedy under section 44 of the Act is a summary proceeding (application for
judicial review). It is of a hybrid nature since, as several decisions of this
Court and the Federal Court of Appeal have indicated, it is more like a de
novo proceeding than a typical judicial review proceeding. In most cases,
the Court may consider new evidence which was not before the respondent in
order to determine whether it was correctly decided that none of the exceptions
mentioned in the Act applied and that the records had to be disclosed (Air
Atonabee Ltd. v. Canada (Minister of Transport), [1989] F.C.J. No. 453
(F.C.) (QL); Bacon International Inc. v. Canada (Department of Agriculture
and Agri-Food), [2002] F.C.J. No. 776 (F.C.) (QL); Merck Frosst Canada
& Co. v. Canada (Minister of Health), [2003] F.C.J. No. 1824 (F.C.)
(QL); and Aliments Prince Foods Inc. v. Canada (Department of Agriculture
and Agri-Food), [2001] F.C.J. No. 144 (F.C.A.) (QL)).
[31]
It
is clear that the Agency's decision is not final and that as the applicable
standard of review indicates, the Court owes little deference to the
decision-maker.
[32]
On
the third factor, the impact of the decision, it is clear that the Agency's
decision affects the applicant's rights and may have significant repercussions
on its business if, in fact, the exceptions mentioned in subsection 20(1) of
the Act apply. In the case at bar, there is no evidence that the decision at
issue threatens the very existence of the applicant or its ability to continue
conducting its business. Nor was it shown that the disclosure would likely
result in material financial loss or prejudice the competitive position or
ongoing negotiations of the applicant. At the hearing, the applicant clearly
indicated that it was not relying on the exceptions mentioned in paragraphs
20(1)(c) and (d) of the Act.
[33]
There
is also no evidence that the applicant had legitimate expectations based on the
respondent's promises or accepted practice as to procedure, the details of the
decision to be rendered and disclosure of the access request, even though this
is clearly not the first time the applicant has been involved in this kind of
proceeding (see Viandes du Breton Inc. v. Canada (Department of Agriculture
and Agri-Food), [2000] F.C.J. No. 2088 (F.C.) (QL)).
[34]
Finally,
the Court notes the access request is an extremely simple form that contains
little information other than the personal information concerning the person
requesting access and the details of the information requested. It is not in
dispute that if this request were to be given to a third party affected, the
respondent would have a duty to redact all personal information concerning the person
requesting access.
[35]
As
I have already indicated, the Agency is not required here to exercise
discretion conferred by the Act but to apply the exceptions set out therein.
[36]
I
conclude from my analysis of the context that the duty of procedural fairness
applicable here did not require that the applicant be given a copy of the
access request. However, the Agency had to correctly and adequately describe
the purpose of the access request.
[37]
The
Court is satisfied that the description of the purpose of the access request in
the letter of May 11, 2005, was entirely adequate. The request clearly
concerned all the AGR-1427 forms issued in 2003 and 2004 in respect of the
establishments described. That is exactly what was disclosed in the notice sent
to the applicant.
[38]
This
description was sufficient to enable the applicant to fully exercise its right
to make representations.
[39]
It
is clear that in future it would be advisable for the respondent to cite
verbatim the description contained in the request (including all amendments).
It would thus avoid any misunderstanding or controversy in this regard. It
would also be helpful for it to confirm that it is satisfied the eligibility
requirements in section 4 have been met. In the case at bar, this point was not
raised in the letter of May 30 and the Court is satisfied that the respondent
did not have to present evidence in this regard for purposes of the application
for review.
[40]
On
the duty to provide reasons, the Court is satisfied that, in the circumstances
of the case at bar, this was carried out. In view of the exchanges between the
parties, the nature of the records to be disclosed and the access request,
there was no reason for the respondent to give further details than it did in
its letter of May 31.
[41]
The
Court is completely able to understand the basis for the decision and, in view
of the nature of the remedy, the Court is satisfied that the applicant's
ability to raise all the arguments it wished to present has not been adversely
affected.
[42]
The
Court finds there was no breach of procedural fairness by the respondent.
B) Merits
of the decision
1) Paragraph 20(1)(b)
[43]
Paragraph
20(1)(b) of the Act provides:
|
Access
to Information Act,
R.S.C., 1985, c. A-1:
20. (1) Subject to this section, the head of
a government institution shall refuse to disclose any record requested under
this Act that contains
(b) financial, commercial, scientific or
technical information that is confidential information supplied to a
government institution by a third party and is treated consistently in a
confidential manner by the third party;
(Emphasis
added.)
|
Loi
sur l’accès à l’information, L.R.C., 1985, ch. A-1 :
20. (1) Le
responsable de l’institution fédérale est tenu, sous réserve des autres
dispositions du présent article, de refuser la communication de documents
contenant :
b) des
renseignements financier, commerciaux, scientifiques ou techniques fournis
à une institution fédérale par un tiers, qui sont de nature
confidentielle et qui sont traités comme tels de façon constante par ce
tiers;
(mon souligné)
|
[44]
As
the Federal Court of Appeal indicated in 1989 in Canada Packers Inc. v.
Canada (Minister of Agriculture), [1989] 1 F.C. 47 (F.C.A.), at paragraph
13, concerning the reports of a meat inspection audit team on abattoirs in the
Kitchener area, none of the information contained in this kind of report was
supplied by the appellant. “The reports are, rather, judgments made by
government inspectors on what they have themselves observed. In my view, no
other reasonable interpretation is possible, either of this paragraph or of the
facts, and therefore paragraph 20(1)(b) is irrelevant in the cases
at bar.”
[45]
On
the confidentiality of the information collected in the inspection reports, Justice
Pinard indicated in Coopérative fédérée du Québec (c.o.b. Aliments
Flamingo) v. Canada (Agriculture and Agri-Food), [2000]
F.C.J. No. 26 (F.C.) (QL), at paragraph 16:
Finally,
although the applicants do not specifically rely on the exemption contained in
paragraph 20(1)(b) of the Act, they do treat the inspection reports as confidential.
In this regard, suffice it to recall that these records are collected by a
government agency and in legal terms constitute records of the Government of
Canada subject to the Act (see the recent decision of the Federal Court of
Appeal in The Information Commissioner of Canada and The
President of the Atlantic Canada Opportunities Agency (November 17, 1999),
A-292-96).
[46]
The
Court has carefully examined each of the reports which were the subject of the
application for review and is satisfied that no distinctions need be made here.
[47]
The
Court cannot accept the applicant's interpretation that, as it [translation] “opened its doors” to the
inspectors, it to some extent provided the information contained in the
reports. The applicant is legally required to allow inspectors to go about
their work.
[48]
Further,
as I indicated at the hearing, in view of its past experience, it is clear that
Les Viandes du Breton Inc. could not reasonably think that these inspection
reports were or could be kept confidential by the respondent.
[49]
In
fact, in all cases where the disclosure of such reports has been challenged,
the courts have upheld the decision to disclose (see, for example, Canada
Packers Inc. v. Canada (Minister of Agriculture), above; Intercontinental
Packers Limited v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142
(F.C.); Gainers Inc. v. Canada (Minister of Agriculture) (1987), 14
F.T.R. 133 (F.C.), aff’d. (1988), 87 N.R. 94 (F.C.A.); and Viandes du Breton
Inc. v. Canada (Department of Agriculture and Agri-Food), above).
[50]
Accordingly,
the Court attaches little weight to paragraphs 34, 35 and 37 of
Mr. Breton's confidential affidavit, which does not explain the basis for
his statements about the way in which the Agency treats such reports.
[51]
In
view of the foregoing, the applicant knew or should have known that, as a rule,
these reports are disclosed to persons requesting them under the Act.
[52]
The
fact that the reports and the information they contain are treated
confidentially within the business does not in any way alter the way in which
they are treated by the Agency or the principles set out in the Act.
2) Veterinary
surgeon’s professional secrecy
[53]
The
applicant relies on section 24 of the Code of Ethics of Veterinary Surgeons,
made under the Veterinary Surgeons Act, R.S.Q., c. M-8, and the Professional
Code, R.S.Q. c. 26, which indicates that a veterinary surgeon may be
released from professional secrecy only with the authorization of the client or
when so ordered by law.
[54]
It
also relies on article 2858 of the Civil Code of Québec, which provides
that a court shall, even of its own motion, reject any evidence obtained in
violation of the right of professional privilege. It cites by analogy section 9
of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12, which
provides that “No person bound to professional secrecy by law . . . may, even
in judicial proceedings, disclose confidential information revealed to him
by reason of his position or profession, unless he is authorized to do so by
the person who confided such information to him . . .”.
[55]
It
appears from the evidence that the inspectors who prepared the reports under
consideration were all veterinarians, but there is no evidence that they are or
were entered on the roll of the Ordre des médecins vétérinaires du Québec.
[56]
Finally,
the applicant argues that it is clear that the inspections are acts performed by
veterinary surgeons. In this connection, it relies on sections 7 and 8 of the Veterinary
Surgeons Act, which defines professional acts as follows:
7. Every
act the object of which is to give veterinary advice, to make a pathological
examination of an animal, to make a veterinary diagnosis, to prescribe
medications for animals, to practise a surgical operation on an animal, to
treat a medical or surgical veterinary disorder by using a mechanical,
physical, chemical, biological or radiotherapy process, or to approve or
condemn ex officio the meat of domestic animals for consumption,
constitutes the practice of veterinary medicine.
8. A
veterinary surgeon may in the practice of his profession give advice to prevent
animal disease and promote means to ensure animal health.
[57]
The
defendant submits that the Canadian Food Inspection Agency Act, S.C.
1997, c. 6, states in subsection 12(3) that the President of the Agency
may designate any persons as inspectors for the enforcement or administration of
any Act or provision that the Agency enforces or administers, whether they are
veterinarians or not.
[58]
It
submits that, in the case at bar, even though the inspectors were
veterinarians, the issuing of inspection reports had nothing to do with the
practice of that profession and, even admitting just for the purposes of this
argument that the Veterinary Surgeons Act applies to federal employees,
none
of the reports in question pertained to acts covered by the provisions of that
Act. For example, none of the inspectors condemned “meat of domestic animals”
for consumption.
[59]
The
Court is not persuaded that inspections and the issuing of reports are acts
subject to this Quebec statute. In any event, the Court is not
satisfied that the applicant is a client of the veterinary inspector and that,
as I indicated earlier in analyzing the application of paragraph 20(1)(b)
of the Act, these reports contain confidential information that was disclosed
by the applicant.
[60]
The
Court finds that these reports are not covered by professional secrecy and that
the application for review must be dismissed.
[61]
It
further notes that the respondent undertook to point out in its disclosure letter
that the AGR-1427 forms are not visit and evaluation reports, but rather
inspection reports, and added the following:
[translation]
The primary
purpose of audit and inspection reports is to identify shortcomings in
facilities and operations so that the management of such businesses may
undertake the appropriate corrective action. They contain objective observations
on conditions existing in a business at the time of the inspection, which are
not necessarily those which exist at the present time. Gradual wear and tear of
equipment and the normal deterioration of buildings require regular maintenance
and repair and, consequently, it is practically impossible to have facilities that
are entirely problem-free. The reports do not reflect the entire operations of
a business, in that they do not set out conditions which might be regarded as
satisfactory.
ORDER
THE COURT ORDERS that:
The
application for judicial review is dismissed with costs.
“Johanne
Gauthier”
Certified
true translation
Susan
Deichert, Reviser
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