Les Viandes du Breton Inc. c. Canada (Department of Agriculture), docket T-1819-98

                                                                                                                                  Date: 20001215

                                                                                                                             Docket: T-1819-98

Ottawa, Ontario, December 15, 2000

Before:            Marc Nadon J.

Between:

                                                LES VIANDES DU BRETON INC.

                                                                                                                                               Plaintiff

                                                                         - and -

                         THE DEPARTMENT OF AGRICULTURE AND AGRI-FOOD

                                                                                                                                           Defendant

                                                                         - and -

                                                       BERNARD DRAINVILLE

                                                                                                                                           Defendant

                                                                       ORDER

The application for review of the Department's decision is dismissed and the plant inspection reports must be disclosed.

If the plaintiff wishes to appeal my decision, I direct that none of the documents requested under the Act be released by the Department for the moment. I further direct that all the confidential documents in question, the filing of which in sealed envelopes was previously ordered by this Court, shall remain so sealed. If no appeal has been filed on expiry of the specified deadline, (a) the Department may release the documents requested to Mr. Drainville, and (b) the confidential documents will be removed from the sealed envelopes and entered in the public record in the case at bar.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                                                                                                  Date: 20001215

                                                                                                                             Docket: T-1819-98

Between:

                                                LES VIANDES DU BRETON INC.

                                                                                                                                               Plaintiff

                                                                         - and -

                         THE DEPARTMENT OF AGRICULTURE AND AGRI-FOOD

                                                                                                                                           Defendant

                                                                         - and -

                                                       BERNARD DRAINVILLE

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

NADON J.

[1]         The plaintiff filed an application to review a decision of the defendant, the access to Information and Protection of Privacy Unit of the Department of Agriculture and Agri-food ("the Department"), dated August 28, 1998, authorizing the disclosure of food or agri-food plant inspection reports. The Department's decision was made in response to an access to information request made to the Canadian Food Inspection Agency by the defendant Bernard Drainville on May 11, 1998 pursuant to s. 4 of the Access to Information Act, R.S.C. 1985, c. A-1 ("the Act").

[2]         The application for review filed by the plaintiff on September 17, 1998 was made pursuant to s. 44(1) of the Act, which provides that:

[3]         In support of its application the plaintiff maintained that the Department had erred in fact and in law when it decided that the plant inspection reports could be disclosed to Mr. Drainville, since the tests for exceptions to the disclosure of documents contained in s. 20(1)(c) and (d) of the Act had not been met. Section 20(1) of the Act reads as follows:

[4]         The plaintiff, who operates a hog kill cut plant, argued that the tests for applying the exceptions in s. 20(1)(c) and (d) of the Act were met in the case at bar. It maintained that it had shown that disclosure of the inspection report on its plant would cause it probable material financial loss, probably prejudice its competitive position and probably interfere with contractual negotiations.

Analysis

[5]         Section 2 of the Act confirms its purpose, namely the public's right to disclosure of documents of the federal government. That section states that:

[6]         It has been held several times that since releasing documents is the general rule the burden of showing that one or more documents should not be disclosed rests with the party opposing disclosure and seeking to obtain an exemption. In Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare) (1992), 41 C.P.R. (3d) 512 (F.C.T.D.), aff. by (1992), 45 C.P.R. (3d) 390 (F.C.A.), Jerome A.C.J. summarized this rule as follows at 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 Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1988), 30 C.P.R. (3d) 473 at p. 476, 20 C.I.P.R. 302, 20 F.T.R. 73 (T.D.). 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, 10 D.L.R. (4th) 417, [1984] 1 F.C. 939 (T.D.).

[7]         Consequently, it is for the plaintiff in the case at bar to show that the plant inspection reports should not be disclosed to Mr. Drainville and that it can take advantage of the exemptions allowed by s. 20(1) of the Act.

[8]         In order to discharge the burden imposed on it and to benefit from the exemptions mentioned in s. 20(1)(c) and (d) of the Act, the plaintiff must show that it is confronted by a reasonable expectation of probable harm, as the Federal Court of Appeal indicated in Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.), at 60:

The words-in-total-context approach to statutory interpretation which this Court has followed in Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346; (1985), 60 N.R. 321 and Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494 requires that we view the statutory language in these paragraphs in their total context, which must here mean particularly in the light of the purpose of the Act as set out in section 2. Subsection 2(1) provides a clear statement that the Act should be interpreted in the light of the principle that government information should be available to the public and that exceptions to the public's right of access should be "limited and specific". With such a mandate, I believe one must interpret the exceptions to access in (c) and (d) to require a reasonable expectation of probable harm. [Footnotes omitted.]

[9]         Further, 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. MacKay J. confirmed this in SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 (T.D.), at 127:

The applicant does not demonstrate probable harm as a reasonable expectation from disclosure of the Record and the Proposal simply by affirming by affidavit that disclosure "would undoubtedly result in material financial loss and prejudice" to the applicant or would " undoubtedly interfere with contractual and other negotiations of SNC-Lavalin in future business dealings". These affirmations are the very findings the court must make if paragraphs 20(1)(c) and (d) are to apply. Without further explanation based on evidence that establishes those outcomes are reasonably probable, the court is left to speculate and has no basis to find the harm necessary to support application of these provisions.

[10]       For the exemption mentioned in s. 20(1)(d) of the Act, the Federal Court of Appeal in Saint John Shipbulding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 (F.C.A.), at 316, the Federal Court of Appeal clarified the concept of "interference with negotiations":

As to the notion of interference, we think that in order to justify an application by a third party under s. 44 there must necessarily be an interference whose consequences will likely be damaging to that party. "Interference" is used here in its sense of "obstruct" ("entraver", in French), much as it is in sports parlance, when the player is penalized for "interference". Here again, the threshold must be that of probability and not, as the appellant would seem to want it, mere possibility or speculation. (My emphasis.)

[11]       Consequently, it is not sufficient for the plaintiff to show a possibility of harm or to speculate as to the probability of harm which the disclosure would cause it in negotiations. As laid down by the courts, the plaintiff must clearly show that the disclosure will probably cause it harm.

[12]       In Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.), Rothstein J. (as he then was) drew up a list of principles that could be used to determine whether the disclosure of documents would occasion a reasonable expectation of probable harm:

1. The exceptions to access require a reasonable expectation of probable harm: Canada Packers, supra, at page 60.

2. The considered opinion of the Information Commissioner should not be ignored: Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.), at page 272.

3. Use of the information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probable harm: Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), at page 210.

4. It is relevant to reconsider if the information sought to be kept confidential is available from sources otherwise available by the public and whether it could be obtained by observation or independent study by a member of the public acting on his or her own: Air Atonabee, supra, at page 202.

5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure: Canada Packers, supra, at page 63; Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.), at page 488.

6. Evidence of the period of time between the date of the confidential record and its disclosure is relevant: Ottawa Football Club, supra, at page 488.

7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short of meeting the burden of entitlement to an exemption from disclosure: Ottawa Football Club, supra, at page 488; Air Atonabee, supra, at page 211.

8. Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure; Canada Packers, supra, at page 64.

9. Section 25 of the Act provides for severance of material in a record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless: Montana Band of Indians v. Can. (Min. of Indian & Nor. Affairs), [1988] 5 W.W.R. 151 (F.C.T.D.), at page 166.

10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record: Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), at pages 109-110; and Merck Frosst Canada Inc. v. Canada (Department of Health and Welfare Protection Branch) (1988), 20 C.P.R. (3d) 177 (F.C.T.D.), at page 179.

[13]       All these points must accordingly be taken into account in assessing the evidence submitted by the plaintiff in order to determine whether there is a reasonable expectation of probable harm associated with disclosure of the plant inspection reports.

[14]       Both the Federal Court of Appeal and this Court have at various times, in Canada Packers, supra, International Packers Limited v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 142 (F.C.T.D.) and Gainers Inc. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 133 (F.C.T.D.), aff. by (1988), 87 N.R. 94 (F.C.A.), ordered the disclosure of plant inspection reports similar to the reports at issue in the case at bar.

[15]       Further, the decision of the Department which is at issue here has already been the subject of litigation, in Coopérative fédérée du Québec (c.b.u. Aliments Flamingo) v. Canada (Agriculture and Agri-food), [2000] F.C.J. No 26 (T.D.) (hereinafter "Aliments Flamingo"). In that case the plaintiffs were objecting to the disclosure of inspection reports which dealt with their chicken plants and abattoirs among the reports sought by Mr. Drainville. In assessing the inspection reports and the evidence filed Pinard J., who dismissed the application for review, made the following comments at paras. 9 to 11:

It is interesting to note that the documents in question consist of inspection reports of the same type as those considered by the Federal Court of Appeal in Canada Packers, supra. After reviewing the reports in question, the Court of Appeal, in this other case, stated at pages 64 and 65:

In the cases at bar, I have carefully scrutinized each report and have also considered that in relations to the others requested. (I refrain from explicit comments on their contents to preserve their confidentiality through the time for appeal). I would say in summary form that, although all are negative to some degree, I am satisfied in each case that, particularly now, years after they were made, they are not so negative as to give rise to a reasonable probability of material financial loss to the appellant, or of prejudice to its competitive position or of interference with its contractual or other negotiations . . . The appellant has not, therefore, met the onus on it to establish that the reports should not be released.

I think it is appropriate to apply the essence of these remarks to the case at bar. Indeed, of the some 24 records in dispute, the most recent dates from 1998. The documents in relation to the inspection reports indicate in several places that the applicants have taken remedial measures. The disputed reports are periodic reports dating back one to three years and strictly concerned with the state of the facility visited, not the quality of the product found therein.

To my may of thinking, access to information should not be prohibited solely because it might be unfavourable to the persons it concerns. This is especially through when, as it happens, the information has to do with the state of facilities as a result of things done by the applicants, who operate them. What they had to establish, in order to prevent the public disclosure of this information under paragraphs 20(1)(c) and (d) of the Act, was that the information is so unfavourable that its disclosure could give rise to a reasonable probability of material financial losses to them, or to [sic] prejudice their competitive position or interfere with contractual or other negotiations (see Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare et al.) (1988), 20 F.T.R. 73, at p. 78).

[16]       In my opinion, Pinard J.'s comments are in large part applicable to the case at bar. In the seven affidavits filed by it, which I will only discuss in general terms because of the order of confidentiality covering them, the plaintiff described the consequences that might ensue if the documents were disclosed. It maintained that disclosure would cause it financial loss, prejudice its competitive position and cause ongoing negotiations to fail. In support of its arguments, it submitted various figures which it said showed the financial losses it would suffer. However, the consequences discussed by the plaintiff appear to be the result of speculation rather than of thorough analysis or study. The lack of discussion of the calculation method used in arriving at these figures or the source of the figures raises questions about the accuracy of these analyses. In my opinion these figures, as submitted by the plaintiff, do not suffice to show that there is a probability of harm.

[17]       As to the reports as such, it is clear from reading them that they deal with the condition of the plant, not the quality of the product. Further, the reports only describe the condition of the plant on the date of the inspection, which took place in 1997, and do not necessarily reflect the condition of the plant at the present time. Consequently, the harm associated with disclosure of these reports is diminished by the time that has elapsed between the inspection and disclosure of the report, and by the fact that the documents relating to the inspection reports indicate in several places that the plaintiff has taken corrective action following the inspection or has developed a plan to adopt corrective action.

[18]       Further, the Department's decision to permit disclosure of the report is accompanied by an explanatory note designed to remove any question about the nature of the reports at issue and indicating the interpretation that should be given to them. In Gainers, supra, in which an explanatory note was also part of the Department's decision and the decision had been made several years earlier, Jerome J. said the following at 137:

I am not prepared to find that the release of these audit reports, with or without possible negative publicity, will result in the market fluctuations this applicant alleges. Consumers, trading partners and importers surely cannot be expected to ignore the positive information produced by the daily inspections, the accompanying release letter, and the high rating given these plants in the reports themselves in favour of relying on a few negative comments about relatively minor deficiencies in the applicant's physical plant. Add to that the fact that these reports are all over three years old and I must conclude that no material harm can reasonably be expected to result from their release. In the alternative, the public interest in their disclosure outweighs any risk of harm to this applicant.

[19]       Pinard J. discussed the explanatory note contained in the Department's decision in the case at bar in particular in Aliments Flamingo, supra, at paras. 14 and 15. Since the explanatory note is the same, I adopt his comments here:

Nor can I presume the inability of the general public to correctly interpret the information contained in the inspection reports at issue, especially when Agriculture intends to incorporate the following paragraph in the body of the letter accompanying the information for the respondent Drainville:

[Translation]

The major purpose of the audit and inspection reports is to identify weaknesses in the facilities and operations in order that the Management of these facilities can carry out the appropriate corrective measures. They contain objective observations on the conditions that existed in the facility at the time of the inspection but not necessarily those existing at present. The gradual wear and tear on equipment and the normal deterioration of buildings necessitate repairs and regular maintenance, and it is virtually impossible to have facilities that are problem-free. The reports do not reflect the facility's operations as a whole and do not report on conditions that might be considered satisfactory.

In this context, I find no real basis in the evidence for the applicant's straightforward statements as to the financial consequences of disclosure of the information and its impact on their competitive position, or the consequences of such disclosure on future contracts. In my opinion, these are mere conjectures that fail to meet the test of "reasonable expectation of probable harm" (Saint John Shipbuilding Ltd., supra).

[20]       Like Pinard J., I consider that because of the lack of specific evidence of the financial consequences of disclosure and because further the reports only deal with the physical conditions of the plants, the inspections were made in 1997, the documents indicated that corrective action had been taken and the Department's decision included an explanatory note, the evidence submitted by the plaintiff does not allow the Court to conclude that the plaintiff could have a reasonable expectation of probable harm, financial or otherwise, to warrant an exemption from the general rule of disclosure of documents.

[21]       Finally, it should be noted that the plaintiff also argued that the likelihood of harm from disclosure was also linked to the possibility of unjust or incorrect coverage of the content of the reports by the media. This fear appeared to be the real reason the plaintiff was objecting to disclosure of the inspection reports on its hog kill cut plant. In support of this argument, the plaintiff alluded to unjust press coverage which occurred in April 1998 following the disclosure of the inspection reports at another business, Aliments Flamingo.

[22]       In Aliments Flamingo, supra, the plaintiffs had alluded to the same media coverage in support of their arguments that the documents should not be disclosed. In response to the plaintiffs' concern about the media coverage which the reports might receive when they were disclosed, Pinard J. indicated the following at paras. 12 and 13:

The media reports in April 1998 on the Flamingo poultry abattoir in Joliette were of course prejudicial to Aliments Flamingo but are not related to the particular facts of this case. In the circumstances, the Court cannot, of course, presume unfair treatment of the particular information that Agriculture says it is prepared to disclose in this case. Whatever the case, the applicants are certainly not unaware of the right to damages that might accrue to them for any bad faith in the dissemination of the information, given the delictual liability that such fault would entail. In the circumstances, therefore, the merit in avoiding the risk of suppression of legitimate comment outweighs the risk of wrongful comment . . .

In the same vein, my colleague Mr. Justice Noël stated in Matol Botanique International Ltée v. Canada (Minister of National Health and Welfare) et al. (1994), 84 F.T.R. 168, at p. 178:

Despite this, the applicant attributes malevolent intention to media organizations and asserts that the information in question will be conveyed in an unbalanced manner for the purpose of discrediting its business. I believe that, here again, this is an unfounded assertion. While I am prepared to accept the fact that the media sometimes convey information in a tendentious manner, I cannot assume, without any evidence to that effect, that they will act in bad faith or that they wish to discredit the applicant's business.

[23]       Once again, I consider that Pinard J.'s comments apply in the case at bar. Media coverage cannot be presumed to be unfair or negative. The plaintiff has other legal remedies if it is the victim of unfair or unfounded coverage. The fact that the plaintiff fears bad publicity after the inspection reports are disclosed does not mean that the Court should prevent their disclosure.

[24]       For all the aforementioned reasons, in my opinion, the exemptions allowed by s. 20(1)(c) and (d) of the Act cannot be applied in the case at bar, as the Department's decision indicated. The plaintiff was unable to discharge its burden of establishing that the disclosure of inspection reports on its plant would create a reasonable expectation of probable harm and that the documents in question are covered by the exemptions allowed by s. 20(1)(c) and (d) of the Act.

Conclusion

[25]       Since the exemptions to the disclosure of documents authorized by s. 20(1)(c) and in (d) of the Act do not apply in the case at bar, the application for review of the Department's decision is dismissed and the plant inspection reports will have to be disclosed.

[26]       In the event that the plaintiff wishes to appeal my decision, I direct that none of the documents requested under the Act be released by the Department for the moment. I further direct that all confidential documents in question, the filing of which in sealed envelopes was previously ordered by this Court, shall remain so sealed. If no appeal has been filed on expiry of the specified deadline, (a) the Department may release the documents requested to Mr. Drainville, and (b) the confidential documents will be removed from the sealed envelopes and entered in the public record in the case at bar.

OTTAWA, Ontario

December 15, 2000

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                 FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                   T-1819-98

STYLE OF CAUSE:                                       LES VIANDES DU BRETON INC.

v. DEPARTMENT OF AGRICULTURE AND

AGRI-FOOD ET AL.

PLACE OF HEARING:                                 QUÉBEC, QUEBEC

DATE OF HEARING:                                   MAY 18, 2000

REASONS FOR ORDER BY:                      NADON J.

DATED:                                                          DECEMBER 15, 2000

APPEARANCES:

JULIE-SUZANNE DOYON                            REPRESENTING THE PLAINTIFF

ROSEMARIE MILLAR                                   REPRESENTING THE DEFENDANT THE DEPARTMENT OF AGRICULTURE AND AGRI-FOOD

SYLVIE GADOURY                                       REPRESENTING THE DEFENDANT BERNARD DRAINVILLE

SOLICITORS OF RECORD:

DESJARDINS, DUCHARME, STEIN,            FOR THE PLAINTIFF

MONAST

QUÉBEC, QUEBEC

MORRIS ROSENBERG                                  FOR THE DEFENDANT THE DEPARTMENT DEPUTY ATTORNEY GENERAL OF                                                 OF AGRICULTURE AND AGRI-FOOD

CANADA       

LEGAL BRANCH                                            FOR THE DEFENDANT BERNARD

CANADIAN BROADCASTING                     DRAINVILLE

CORPORATION

MONTRÉAL, QUEBEC