Date: 20060908
Docket: T-2049-05
Citation: 2006 FC 1075
Ottawa,
Ontario, the 8th day of September 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
LES
VIANDES DU BRETON INC.
Applicant
and
CANADIAN
FOOD INSPECTION AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 44 of the Access to
Information Act, R.S.C. 1985, c. A-1 (the Act), filed by Les Viandes du
Breton Inc. (the applicant) against a decision of the Canadian Food Inspection
Agency (the respondent) to authorize the disclosure of certain documents
relating to the applicant, in response to an access to information application.
RELEVANT FACTS
[2]
On
September 25, 2005, an access to information application under the Act was
received by the respondent. This access to information application initially
concerned the obtaining of inspection reports on abattoirs filed between
January 2003 and December 2004, and was then amended by telephone to concern Quebec abattoir
inspection reports filed between January and March 2005.
[3]
Among
the documents covered by this application were three [TRANSLATION] “plant inspection
reports” (the reports) relating to the applicant’s abattoir and dated January,
February and March 2005.
[4]
On
October
17, 2005,
Denis Châtelain of the respondent’s access to information division sent the
applicant a letter telling it of this access to information application along
with a copy of the three reports mentioned in paragraph 3. In this letter the
applicant was invited to submit its comments on whether these three reports met
the exceptional criteria set out in subsection 20(1) of the Act for denying
disclosure of the documents.
[5]
On
November 3, 2005, the applicant sent the respondent a letter containing its
comments in this regard, through its counsel.
[6]
On
November
8, 2005,
the respondent sent the applicant its decision in another letter, informing it
that the comments submitted did not meet the exceptional criteria set out in
the Act and accordingly that it intended to release the reports to the party requesting
them.
[7]
On
November 16, 2005, the applicant filed an application for judicial review
pursuant to section 44 of the Act.
ISSUES
[8]
The
issues are the following:
(1)
Should the applicant have been informed of the identity of the party applying
for the documents under the Act?
(2) Did the
respondent fail in its duty to give reasons, and so to observe procedural
fairness, in its decision dated November 8, 2005?
(3)
Did the applicant adequately establish that the reports in question met the exceptional
criteria set out in subsection 20(1) of the Act?
ANALYSIS
[9]
As
the Federal Court of Appeal determined in Wyeth-Ayerst Canada Inc. v. Canada
(Attorney General), 2003 FCA 257, according to the pragmatic and functional
approach the standard of review applicable to consideration of a decision to
disclose certain documents under the Act is that of correctness.
(1) Disclosure of
identity of party applying for documents
[10]
First,
the applicant submitted that the access to information application form sent by
the respondent did not meet the requirements set out in the Act in that it did
not specify the identity of the party applying for the documents or whether
that party was a Canadian citizen or permanent resident.
[11]
Contrary
to the position taken by the applicant, there is nothing in the Act requiring
the respondent to disclose to the applicant the identify of the party applying
for the documents or whether that party is a Canadian citizen or permanent
resident. Under subsection 27(1) of the Act, the respondent had to notify the
applicant in writing of its intention to disclose certain documents relating to
it. Subsection 27(3) indicates what should be included in such a notice:
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(a) a statement that the head of the government
institution giving the notice intends to release a record or a 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; and
(c) a statement that the third party may, within
twenty 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.
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a) la mention de l’intention du responsable de
l’institution fédérale de donner communication totale ou partielle du
document susceptible de contenir les secrets ou les renseignements visés au
paragraphe (1);
b) la désignation du contenu total ou partiel du document
qui, selon le cas, appartient au tiers, a été fourni par lui ou le concerne;
c) la mention du droit du tiers de présenter au
responsable de l’institution fédérale de qui relève le document ses observations
quant aux raisons qui justifieraient un refus de communication totale ou
partielle, dans les vingt jours suivant la transmission de l’avis.
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[12]
Further,
the release by the respondent of personal information on the party applying for
the documents would have been a breach of section 19 of the Act and section 3
of the Privacy Act, R.S.C. 1985, c. P-21 (PA), which provide:
Access to Information Act
|
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under this Act that
contains personal information as defined in section 3 of the Privacy Act.
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19. (1)
Sous réserve du paragraphe (2), le responsable d’une institution fédérale est
tenu de refuser la communication de documents contenant les renseignements
personnels visés à l’article 3 de la Loi sur la protection des
renseignements personnels.
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Privacy Act
|
3. In this Act,
“personal information” means information about an
identifiable individual that is recorded in any form including, without restricting
the generality of the foregoing,
. . . . .
(f) correspondence sent to a government
institution by the individual that is implicitly or explicitly of a private
or confidential nature, and replies to such correspondence that would reveal
the contents of the original correspondence,
. . . . .
(i) the name
of the individual where it appears with other personal information relating
to the individual or where the disclosure of the name itself would reveal
information about the individual . . .
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3. Les définitions qui suivent s’appliquent à la présente
loi :
. . . . .
« renseignements personnels »
Les renseignements, quels que soient leur forme et leur
support, concernant un individu identifiable, notamment :
. . . . .
f) toute correspondance de nature, implicitement ou
explicitement, privée ou confidentielle envoyée par lui à une institution
fédérale, ainsi que les réponses de l’institution dans la mesure où elles
révèlent le contenu de la correspondance de l’expéditeur;
. . . . .
i) son nom lorsque celui-ci est mentionné avec d’autres
renseignements personnels le concernant ou lorsque la seule divulgation du
nom révélerait des renseignements à son sujet . . .
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[13]
Finally,
the identity of the party applying is not relevant to the ultimate decision of
whether to disclose the documents requested. As Charles Doherty Gonthier J.
noted in Canada (Information
Commissioner) v. Canada (Commissioner of the
Royal Canadian Mounted Police), [2003] 1 S.C.R. 66, the Act “does not
confer on the heads of government institutions the power to take into account
the identity of the applicant or the purposes underlying a request”.
Accordingly, any argument made by the applicant and based on the identity of
the party applying for the documents could not be considered by the respondent
as part of its analysis.
[14]
At
the hearing the applicant relied heavily on the fact that the respondent’s
representative had not taken the minimum action necessary to ensure that the
party applying for the documents met the requirements of the Act.
[15]
In
the circumstances the requirements are minimal, since the order adopted
pursuant to section 4(2) of the Act extended the right of access to documents
to every artificial or natural person present in Canada.
[16]
The
replies by Mr. Châtelain, the respondent’s representative, in his written
examination are eloquent and show that he was probably convinced that the
applicant for access was eligible under the Act.
[17]
Accordingly,
I conclude that the respondent discharged its minimal obligation and that there
is nothing to justify the Court’s intervention.
[18]
As
to the description of the access to information application ([TRANSLATION] “inspection
reports filed on Quebec abattoirs from January to March 2005”), this
was clearly disclosed in Mr. Châtelain’s letter dated October 17, 2005. The
Court is satisfied that the three plant inspection reports dealing with the
applicant’s abattoirs were clearly covered by this access application.
[19]
In
the case at bar, the respondent had no duty to disclose the identity of the
party applying for the documents and the lack of disclosure thus does not in
any way affect the validity of the access application.
(2) Failure to give
reasons (procedural fairness)
[20]
In
his letter dated November 8, 2005, Mr. Châtelain said the following:
[TRANSLATION] “We have considered your comments and decided they do not meet
the exceptional criteria set out in section 20(1) of the Act” (applicant’s
confidential record, page 26). The applicant maintained that the respondent had
failed in its duty to give reasons, and accordingly in procedural fairness,
since this letter dismissed the arguments made by the applicant without
explaining how the comments submitted did not meet the exceptional criteria.
[21]
Subsection
28(3) of the Act requires that the third party concerned (here the applicant)
be informed of the decision to disclose the documents requested in a notice
containing:
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(a) a statement that the third party to whom the notice
is given is entitled to request a review of the decision under section 44
within twenty days after the notice is given; and
(b) a statement that the person who requested access to
the record will be given access thereto or to the part thereof unless, within
twenty days after the notice is given, a review of the decision is requested
under section 44.
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a) la mention du droit du tiers d’exercer un recours en
révision en vertu de l’article 44, dans les vingt jours suivant la
transmission de l’avis;
b) la mention qu’à défaut de l’exercice du recours en
révision dans ce délai, la personne qui a fait la demande recevra
communication totale ou partielle du document.
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There is thus nothing in the
Act requiring the respondent to give detailed reasons for dismissing the
arguments submitted by the applicant.
[22]
Turning
now to the question of procedural fairness, the Court must conclude that the
paucity of details contained in Mr. Châtelain’s letter dated November 8, 2005
did not in any way affect the applicant’s ability to present its arguments
fully through the judicial review process, since the procedure in court is a de
novo procedure. Yvon Pinard J. put it clearly in Merck Frosst Canada & Co. v. Canada (Minister of
Health),
2003 FC 1422, at paragraph 3:
In the underlying application
for review pursuant to section 44 of the ATIA, the Court is not
reviewing the legality of the respondent’s decision, but will decide de novo,
based in part on new evidence that was not before the respondent, whether the
information contained in the records is of such a confidential or prejudicial
nature that it should be exempt from disclosure under section 20 of the ATIA.
[23]
As
the situation at bar is virtually identical to that which gave rise to Viandes
du Breton Inc. v. Canada (Canadian Food Inspection Agency), 2006 FC 335, we
can also cite Johanne Gauthier J., who concluded at paragraphs 40-41:
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 application, there was no reason for the respondent
to give further details than it did in its letter of May 31.
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.
[24]
For
the reasons mentioned above, the duty to provide reasons was met and there was
thus no breach of procedural fairness by the respondent.
(3) Analysis of
exemption criteria
[25]
First,
it is important to note that, as mentioned in subsection 2(1) of the Act, the
purpose of this legislation is “to provide a right of access to information in
records under the control of a government institution in accordance with the
principles that government information should be available to the public” and
that exceptions to this right should be “limited and specific”. Those
exceptions, concerning the disclosure of information on third parties such as
the applicant, are found in subsection 20(1) of the Act:
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20. (1) Subject to this
section, the head of a government institution shall refuse to disclose any
record requested under this Act that contains
(a) trade secrets of a third party;
(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;
(c) information the disclosure of which could reasonably
be expected to result in material financial loss or gain to, or could
reasonably be expected to prejudice the competitive position of, a third
party; or
(d)
information the disclosure of which could reasonably be expected to interfere
with contractual or other negotiations of a third party.
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20. (1) Le responsable d’une institution fédérale est tenu,
sous réserve des autres dispositions du présent article, de refuser la
communication de documents contenant :
a) des secrets industriels de tiers;
b) des renseignements financiers, 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;
c) des renseignements dont la divulgation risquerait
vraisemblablement de causer des pertes ou profits financiers appréciables à
un tiers ou de nuire à sa compétitivité;
d) des renseignements dont la divulgation risquerait
vraisemblablement d’entraver des négociations menées par un tiers en vue de
contrats ou à d’autres fins.
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[26]
As access
is the rule, the burden of showing that a document should not be disclosed
rests with the party seeking an exemption. James A. Jerome A.C.J., in Cyanamid
Canada Inc. v. Canada (Minister of Health and
Welfare) (1992),
41 C.P.R. (3d) 512 (F.C.T.D.),
affirmed by (1992), 45 C.P.R. (3d) 390 (F.C.A.),
summed up this principle as follows at page 527:
In a third party application under s. 44
of the Act, the party opposing disclosure bears the burden of showing that
clear grounds exist to justify exempting the documents in issue from disclosure
to the requester: Merck Frost Canada Inc. v. Canada (Minister of Health and
Welfare) (1988), 30 C.P.R. (3d) 473 at
p. 476 […]. The Access to Information Act codifies the public right of
access and the basic premise that access to records gathered for a public
purpose and at public expense ought to be available. In this light, the court
will not frustrate public access to government information except under the
clearest grounds and any doubt ought to be resolved in favour of disclosure: Maislin
Industries Ltd. v. Canada (Minister of Industry, Trade and Commerce) (1984),
80 C.P.R. (2d) 253 at
p. 256 . . .
[27]
The
applicant submitted that the three reports in question contained financial and
commercial information the disclosure of which could damage the effective
operation of the business and make the business vulnerable, but it presented no
evidence in support. As Marc Nadon J. explained at paragraph 9 of Viandes
du Breton Inc. v. Canada (Department of
Agriculture and Agri-Food), [2000] F.C.J. No. 2088, in order to obtain an
exemption under paragraphs 20(1)(c) and (d),
. . . the plaintiff should not
only state in an affidavit that disclosure of the documents would probably cause
it harm, it should also submit evidence of the likelihood of such harm.
[28]
The
applicant also stressed the confidential nature of the information contained in
the reports, in fact maintaining that if disclosure of the information
contained in the reports had been anticipated it would never have allowed
access to its abattoirs. This argument disregards the fact that the information
was not voluntarily [TRANSLATION] “provided” to the respondent by the
applicant. On the contrary, Canadian Food Inspection Agency inspectors must be
allowed access to such premises under the Meat Inspection Act, R.S.C.
1985, c. 25 (1st Supp.).
[29]
In
this regard, this Court also concurs in the analysis by Gauthier J. of the
applicability of paragraph 20(1)(b) at paragraphs 44 to 52 of Viandes
du Breton Inc. v. Canada (Canadian Food Inspection Agency), 2006 FC 335:
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, dealing with the reports of a meat
inspection verification 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”.
On the confidentiality of the
information brought together in the inspection reports, Pinard J.
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).
The Court has carefully examined
each of the reports which were the subject of the review application and is
satisfied that no distinctions need be made here.
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.
Further, as I indicated at the
hearing, in view of their past experience, it is clear that Les Viandes du
Breton Inc. could not reasonably think that these inspection reports were or
might be kept confidential by the respondent.
.
. . . .
In view of the foregoing, the
applicant knew or should have known that as a general rule these reports are
disclosed to persons requesting them under the Act.
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.
[30]
Finally,
the applicant submitted that the information contained in these reports is
protected by the professional secrecy governing the relationship between the
client and the veterinary surgeon who prepared and signed the inspection reports,
pursuant to sections 23 to 25 of the Code of Ethics of Veterinary Surgeons.
[31]
Essentially,
professional secrecy can exist in such circumstances only if the applicant is
regarded as a client of the drafter of the report, acting as a veterinary
surgeon. In the context of the inspection of plants under the Meat
Inspection Act the drafter of inspection reports, while he or she may be a
veterinary surgeon by profession (which is not necessarily the case), is acting
not as a veterinarian on behalf of the owner of the animals in the plant but as
an inspector appointed by the head of the Canadian Food Inspection Agency
pursuant to subsection 13(3) of the Canadian Food Inspection Agency Act,
S.C. 1997, c. 6.
[32]
For these
reasons, the Court concludes that (1) the applicant did not establish the likelihood
of harm which could warrant an exemption under paragraphs 20(1)(c) or (d)
of the Act, and (2) the information in the inspection reports is not protected
by professional secrecy and not confidential within the meaning of paragraph
20(1)(b) of the Act.
JUDGMENT
1. The
application for judicial review is dismissed;
2. With costs.
“Pierre Blais”
Certified true
translation
Brian McCordick,
Translator
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