Date: 20110607
Docket: T-724-10
Citation: 2011 FC 641
Ottawa, Ontario, June 7,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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TOP ACES CONSULTING INC
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Applicant
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and
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THE MINISTER OF NATIONAL DEFENCE AND
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review pursuant to section 44 of the Access to
Information Act, R.S.C., 1985, c. A-1 (the Act), concerns the decision
rendered on April 22, 2010 by the Department of National Defence (DND) to
disclose certain records in its possession that relates to several National
Individual Standing Offers for Interim Contracted Airborne Training Services
(the Standing Offers), and the contracts that arise from call-ups to the
Standing Offers. The application has been discontinued against the Minister of
Public Works and Government Services.
[2]
For
the reasons that follow, the application for judicial review shall be dismissed.
Facts
[3]
The
applicant, has in the past years, been awarded several contracts through the Standing
Offer process.
[4]
On
October 13, 2009, DND received an access to information request for all Standing
Offers and contracts it awarded to the applicant since January 1, 2003.
[5]
On
January 19, 2010, the respondent, DND, informed the applicant of the request
and asked that it review the enclosed documents to identify any information
that, in its view, ought to be protected under the Access to Information Act
(the Act). The applicant provided its representations on the matter
between February 5, 2010 and April 20, 2010, (Applicant’s Record, Vol. II, Tab
4, Affidavit of Linda LeBlanc, para 4, sworn July 26, 2010).
[6]
The
applicant agreed to the disclosure of certain records, but objected to the
disclosure of its unit prices as set out in the Standing Offers.
[7]
On
April 22, 2010, DND advised the applicant that it was going to release
the unit prices notwithstanding the applicant’s objection; it is this letter (the
Decision) that is under review in the present application.
Decision under review
[8]
The
April 22, 2010 letter states that, due to the disclosure clause found at section
31.0a of the Standing Offers, the unit prices could not be withheld. DND states
that such information could be protected in contracts but not in the Standing Offers.
Relevant legislation
[9]
The
relevant legislation is in the attached appendix.
Issues
[10]
The
only issue in this application is as follows:
1. Whether
the disclosure clause in the Standing Offers can be considered consent by the
applicant pursuant to section 30 of the Defence Production Act, R.S.C.,
1985, c. D-1, (DPA).
Standard of Review
[11]
The
applicant submits that the standard of review applicable to the judicial review
of government decisions pursuant to the Act is correctness, citing 3430901
Canada Inc. v. Canada (Minister of Industry), 2001, FCA 254, at paras
28-42.
[12]
The
applicant underscores that, although it was released before Dunsmuir v. New Brunswick,
2008 SCC 9, the Federal
Court of Appeal in the above decision addressed the factors that need to be
examined in a standard of review analysis (listed in Dunsmuir, supra, at
paras 51 to 55).
[13]
The
respondent argues that review pursuant to section 44 of the Act requires
that the Court undertake a new and independent review of the matter, comparable
to a trial de novo. It is therefore up to the Court to arrive at its
own conclusions based on the evidence adduced (Blood Band v. Canada (Minister of
Indian Affairs and Northern Development), 2003 FC 1397, at paras
45 and 46).
[14]
I
adopt the reasons in Blood Band, supra, at para 46 and as such; the Court
shall review the evidence and arrived at its own conclusions.
a. Whether the
disclosure clause in the Standing Offers can be considered consent by the
applicant pursuant to section 30 of the Defence Production Act, R.S.C.,
1985, c. D-1, (DPA)?
Applicant’s arguments
[15]
The
applicant submits that the government is required to refuse to disclose records
requested under the Act (section 24(1)) where disclosure is restricted pursuant
to section 30 of the DPA, which is listed in Schedule II of the
Act.
[16]
The
applicant highlights section 1.9 of the Standing Offers, which states that
contracts arising from call-ups to the Standing Offers are defence contracts pursuant
to the DPA. It appears to indicate that the Standing Offers themselves are
not defence contracts. But the applicant adds that the DPA does not merely
prohibit the disclosure of defence contracts, but rather prohibits the
disclosure of information obtained “under or by virtue of this act.” As such,
the applicant contends that the prohibition is significantly broader than the
government purports it to be, and includes the information presented in Standing
Offers.
[17]
It
underscores that DND derives its authority to enter into defence contracts
from section 16 of the DPA. Pursuant to the wording of this section, the
applicant argues that Standing Offers, which give the government the ability to
expedite new contracts for services related to national defence, are “incidental
to or necessary or expedient for” the procurement of goods and services.
[18]
The
applicant further states that this interpretation of section 30 of the DPA has
previously been confirmed by the Court in Siemens Canada Ltd v. Canada (Minister
of Public Works & Government Services), 2001 FCT 1202, at para 19. In
that case, the Court held that it did not matter whether the information
requested was part of the contract or was a pre-condition to the formation of
the contract for the purpose of section 30 of the DPA.
[19]
The
applicant therefore argues that, since it does not consent to the
disclosure of the records, the government cannot agree to the disclosure
request.
[20]
With
regards to the respondent’s position that a disclosure clause in the Standing
Offers allows DND to disclose the records, the applicant urges that DND’s
own actions and admissions lead to the conclusion that the disclosure clause
cannot be interpreted in this manner because DND has admitted that
information contained in contracts is exempt from disclosure by virtue of
section 30 of the DPA (Applicant’s Record, letter from DND to the applicant, January
19, 2010, pages 319 and 320). Therefore, even though a disclosure
clause in the Standing Offers is present, DND has agreed not to disclose any
such information.
[21]
The
applicant states that DND admitted in its April 22, 2010 letter that
information contained in contracts is exempt from disclosure by virtue of
section 30 of the DPA notwithstanding the disclosure clause and has therefore
agreed not to disclose any such information. The same reasoning should
apply for the disclosure clause in the Standing Offers. The applicant therefore
submits that the government cannot disclose its unit prices without its consent.
Respondent’s
arguments
[22]
The
respondent’s position is that the information is not exempt pursuant to section
30 of the DPA.
[23]
It
argues that the Siemens’ decision is distinguishable from the case
at bar because in that case there was no disclosure clause. Justice McKeown wrote
at paragraph 20, “Therefore, pursuant to section 30 of the DPA, the documents
should not be disclosed since the applicant has not provided its consent”
(my underline). The respondent contends that, in the present case, the
applicant provided its consent for the purpose of section 30 of the DPA by
virtue of the disclosure clause in the Standing Offers.
[24]
The
respondent submits that the applicant cannot consent to disclosing its
unit prices and then later revoke that consent. It further argues that
there is no evidence in the record to suggest that the applicant was not aware
of the disclosure clause when it signed the Standing Offers, or that it did not
intend to comply with the disclosure clause or agreed to the disclosure clause
in error.
[25]
The
respondent also states that, the disclosure clause is a valid consent by the
applicant for the purpose of section 30 of the DPA. Therefore, the
respondent can disclose the unit prices as set out in the Standing Offers.
Analysis
[26]
Section
30 of the DPA states:
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30. No
information with respect to an individual business that has been obtained
under or by virtue of this Act shall be disclosed without the consent of the
person carrying on that business, except
(a) to a
government department, or any person authorized by a government department,
requiring the information for the purpose of the discharge of the functions
of that department; or
(b) for the
purposes of any prosecution for an offence under this Act or, with the
consent of the Minister, for the purposes of any civil suit or other
proceeding at law.
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30.
Les renseignements recueillis sur une entreprise dans le cadre de la présente
loi ne peuvent être communiqués sans le consentement de l’exploitant de
l’entreprise, sauf :
a) à
un ministère, ou à une personne autorisée par un ministère, qui en a besoin
pour l’accomplissement de ses fonctions;
b) aux
fins de toute poursuite pour infraction à la présente loi ou, avec le
consentement du ministre, de toute affaire civile ou autre procédure
judiciaire.
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[27]
The disclosure
clause in the Standing Offers provides that: (Applicant’s Record, Vol. II, page
423, section 31.0a)
“a. The Offeror agrees to the disclosure
of its unit prices by Canada, and further agrees that it
shall have no right of claim against Canada,
the Minister, the Identified User, their employees, agents or servants, or any
of them, in relation to such disclosure.”
[28]
I
also note the purpose of the Act as set out in subsection 2(1):
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2. (1) The purpose of this Act is to extend the present laws of Canada
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, that necessary exceptions to
the right of access should be limited and specific and that decisions on the
disclosure of government information should be reviewed independently of
government.
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2. (1) La présente loi a pour objet d'élargir l'accès aux
documents de l'administration fédérale en consacrant le principe du droit du
public à leur communication, les exceptions indispensables à ce droit étant
précises et limitées et les décisions quant à la communication étant
susceptibles de recours indépendants du pouvoir exécutif.
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[29]
Considering
these provisions, I must conclude that the underlying principle here is
the existence of a restriction of disclosure of information concerning a
business which information was obtained "under or by virtue of the
Act"(section 30 of the DPA) without the consent of the responsible person
for that business. The exceptions pursuant to paragraphs 30a) and b)
have no relevance here.
[30]
Applying
this principle to the case at bar, I determine that the unit prices included in
the Standing Offers were obtained "under or by virtue of the Act".
In fact, the information was obtained as a pre-condition to the calls-up or the
contracts. Once the contracts come under the DPA, then section 30 does not
distinguish between documents which were part of the contract and documents
which were part of the solicitation Siemens, para 19.
[31]
The
remaining question therefore is whether or not there has been consent to
disclosure, or, in other words, whether the disclosure clause constitutes
“consent” under section 30 of the DPA.
[32]
In
my view, the disclosure clause is clear and not ambiguous. The applicant
has never argued that it did not understand the disclosure clause. Rather, it
acknowledges having signed it, but argues that it should not be interpreted as
applying in this case. I cannot accept this argument.
[33]
The
applicant cites Canada (Information Commissioner) v. Canada (Minister of
Industry), [2007] ACF 780, for the proposition that subsection 24(1)
of the Act imposes an unqualified duty on the head of a government institution
to refuse to disclose any record requested under the Act which contains
information, the disclosure of which is restricted by a provision listed in
schedule II (para 69).
[34]
I
note that Evans J.A. wrote the dissenting reasons. Although Décary J.A. agreed
with the identification of issues 1 to 4 as proposed by his colleague Evans, he
adopted the solution proposed by the Chief Justice.
[35]
In
Canada (Information
Commissioner), three statutes were at issue, the Access to Information
Act, the Statistics Act and the Privacy Act. Kelen J., the
presiding Judge of the Federal Court in that case, had also made an analysis of
section 35 of the Constitution Act, 1982.
[36]
In
Siemens, supra, McKeown J. dealt specifically with subsection 24(1) of
the Act and section 30 of the DPA. The appeal in that case was dismissed (2002
FCA 414). I see no reasons why I should depart from his reasoning.
[37]
After
a review of the evidence in the case at bar, I have to conclude that by signing
the disclosure clause in the Standing Offers, the applicant provided its consent
pursuant to section 30 of the DPA. Based on the foregoing, I find that
the unit prices in question are not exempt from disclosure by virtue of that
section.
[38]
At
the suggestion of the Court, the parties agree that an amount of $4,000 for
costs should be allocated to the winning party.
JUDGMENT
THIS COURT
ORDERS that the application be
dismissed. The applicant shall pay costs for an amount of $4,000 to the
respondent.
“Michel
Beaudry”
APPENDIX
Defence
Production Act (R.S.C.
1985, c. D-1)
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16. The
Minister may, on behalf of Her Majesty and subject to this Act,
(g) do
all such things as appear to the Minister to be incidental to or necessary or
expedient for the matters referred to in the foregoing provisions of this section
or as may be authorized by the Governor in Council with respect to the
procurement, construction or disposal of defence supplies or defence
projects.
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16. Le ministre peut, au nom de Sa Majesté et sous réserve des
autres dispositions de la présente loi :
g) prendre toute autre mesure qu’il
juge accessoire, nécessaire ou utile aux matières visées au présent article
ou que le gouverneur en conseil peut autoriser en ce qui a trait à la
fourniture, la construction ou la disposition de matériel de défense ou
d’ouvrages de défense.
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30. No
information with respect to an individual business that has been obtained
under or by virtue of this Act shall be disclosed without the consent of the
person carrying on that business, except
(a) to a
government department, or any person authorized by a government department,
requiring the information for the purpose of the discharge of the functions
of that department; or
(b) for the
purposes of any prosecution for an offence under this Act or, with the
consent of the Minister, for the purposes of any civil suit or other
proceeding at law.
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30.
Les renseignements recueillis sur une entreprise dans le cadre de la présente
loi ne peuvent être communiqués sans le consentement de l’exploitant de
l’entreprise, sauf :
a) à
un ministère, ou à une personne autorisée par un ministère, qui en a besoin
pour l’accomplissement de ses fonctions;
b) aux
fins de toute poursuite pour infraction à la présente loi ou, avec le
consentement du ministre, de toute affaire civile ou autre procédure
judiciaire.
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Access
to Information Act R.S.C.
1985, c. A-1
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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;
(b.1)
information that is supplied in confidence to a government institution by a
third party for the preparation, maintenance, testing or implementation by
the government institution of emergency management plans within the meaning
of section 2 of the Emergency Management Act and that concerns the
vulnerability of the third party’s buildings or other structures, its
networks or systems, including its computer or communications networks or
systems, or the methods used to protect any of those buildings, structures,
networks or systems;
(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;
(b.1)
des renseignements qui, d’une part, sont fournis à titre confidentiel à une
institution fédérale par un tiers en vue de l’élaboration, de la mise à jour,
de la mise à l’essai ou de la mise en oeuvre par celle-ci de plans de gestion
des urgences au sens de l’article 2 de la Loi sur la gestion des urgences et,
d’autre part, portent sur la vulnérabilité des bâtiments ou autres ouvrages
de ce tiers, ou de ses réseaux ou systèmes, y compris ses réseaux ou systèmes
informatiques ou de communication, ou sur les méthodes employées pour leur
protection;
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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