Date: 20070705
Docket: T-592-06
Citation: 2007 FC 704
Ottawa, Ontario, the 5th day of July 2007
PRESENT:
THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
FÉDÉRATION
DES PRODUCTEURS ACÉRICOLES DU QUÉBEC
and
CINTECH
AGROALIMENTAIRE, DIVISION INSPECTION INC.
Applicants
AND
CANADIAN
FOOD INSPECTION AGENCY
and
ATTORNEY
GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
Under
section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the
AIA), the applicants, the Fédération des producteurs acéricoles du Québec (the
Fédération) and Cintech Agroalimentaire, Division Inspection Inc. (Cintech),
are applying for a review in this Court of a decision by the Canadian Food
Inspection Agency (the Agency) dated March 14, 2006 authorizing the disclosure of
certain documents relating to the applicants. The Attorney General of Canada
(AGC), a co-respondent with the Agency in this matter, argues that the
application at bar should be dismissed.
I. BACKGROUND
[2]
The
Fédération is a federation of eleven professional maple producers’ unions and
is officially responsible for marketing maple syrup products in the province of
Quebec for the purposes of section 65 of the Act respecting the marketing of
agricultural, food and fish products, R.S.Q., c. M-35.1. It applies and administers the
Plan conjoint des producteurs acéricoles du Québec (decision 5057 of the
Régie des marchés agricoles et alimentaires du Québec (the RMAAQ), 1990 G.O. 2,
743) (the Joint Plan). To administer the Joint Plan, the RMAAQ approved inter alia the Réglement
sur l’agence de vente des producteurs acéricoles (decisions 7449 and 7484
of the RMAAQ, 2002 G.O. 2, 1707, amended by subsequent RMAAQ decisions) (the
Sales Agency Regulation).
[3]
Essentially
the Fédération, which is the sales agency for maple products in Quebec, is a
single outlet through which all maple syrup produced in Quebec and marketed in
large containers is sold by maple producers to interested buyers. The
Fédération uses two maple syrup warehouses in Quebec for which the Fédération holds
a registration under the Maple Products Regulations (C.R.C. c. 289).
These warehouses belong to 9020-2292 Québec Inc., which also does business
under the name “Decacer”. Accordingly, as required by the Règlement des
producteurs acéricoles sur les normes de qualité et le classement (decision
7360 of the RMAAQ, 2001 G.O. 2, 7217) (the Quality Standards Regulation), all
syrup produced in Quebec in large containers must be inspected and graded
before being sold by the Fédération on behalf of producers.
[4]
The
Quality Standards Regulation also allows the Fédération to conclude agreements
delegating the performance of the tasks of grading and inspection to a third
party. Under this power, the Fédération concluded various agreements with the
Centre d’innovation technologique agro-alimentaire (Cintech Agroalimentaire)
that together covered the period from January 18, 2002 to February 28, 2006.
Additionally, Cintech Agroalimentaire may itself assign the functions of
grading and inspection to one of its wholly-owned subsidiaries, which it did by
assigning these duties to Cintech. In practice, it is the employees of Cintech
who act as inspectors.
[5]
The Agency
is a body corporate created pursuant to the Canadian Food Inspection Agency
Act, S.C. 1997, c. 6 (the CFIA Act), which exercises its powers only as an
agent of Her Majesty the Queen in right of Canada. The Agency is responsible
for implementing and overseeing the application of certain legislation,
including the Canada Agricultural Products Act, R.S.C. 1985
(4th Supp.), c. 20. Additionally, the Maple Products Regulations pursuant
to which the Fédération obtained a registration were adopted in accordance with
this enabling legislation on agricultural products.
II. FACTS GIVING RISE TO
THE APPLICATION AT BAR
[6]
On or about
December 5, 2005, a complaint was filed with the Agency against the Fédération.
Various documents belonging to the applicants were attached to the complaint
and were filed without their consent. Although the name of the person
responsible for the complaint was not disclosed by the Agency (under the law,
the person’s identity must remain confidential), the applicants argue that the
documents attached to the complaint came from a former Cintech employee who was
dismissed.
[7]
On or
about January 16, 2006, the Agency received an access to information request in
respect of the complaint. Representatives of the Quebec operational centre of
the Agency identified and forwarded to the access to information division 45
pages of relevant documents, numbered 1 to 45. After deleting certain pages
which he considered subject to section 3 of the AIA, Denis Châtelain,
senior analyst in the Agency’s Access to Information and Privacy Division,
notified the applicants by letters dated February 13, 2006 of the existence of
the access to information request and invited them to submit written
representations in this regard.
[8]
By letter
dated March 1, 2006, the applicants objected to complete disclosure of all
documents with page numbers 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 43, 44 and 45, on
the ground that their disclosure was prohibited under section 20 of the AIA.
They further objected, relying in so doing on the same section of the AIA, to
complete disclosure of the document numbered page 4, which set out the
complaint itself and contained information which the applicants regarded as
ill-founded and defamatory.
[9]
By a
letter dated March 14, 2006, Mr. Châtelain notified the applicants that the
Agency would disclose only part of the 45 pages. In particular, pages 4, 10 to
14, 16 and 17, 26, 36 and 37, and 41 to 45 would be disclosed, that is, 16
pages. That decision is the subject of the application for review at bar.
III.
DOCUMENTS
EXAMINED BY THE COURT
[10]
At the
start of the hearing held on May 31, 2007, counsel for the applicants confirmed
to the Court that the applicants were no longer objecting to complete
disclosure of the documents with page numbers 4 and 43. At the same time, the
Agency noted that, in connection with the access to information request, the
documents with page numbers 15, 18 to 25, 27 to 32, 34, 35 and 44 would not be
released. Additionally, pursuant to the submissions made in paragraph 96 of
their memorandum of fact and law, the applicants no longer objected to release
of the documents with page numbers 41 and 42. Consequently, the issue here
exclusively concerns the applicants’ objections to release of the documents
with page numbers 10 to 14, 16, 17, 26, 33, 36, 37 and 45 (the documents examined)
in order to prevent disclosure of their content. The applicants allege in
paragraph 96 of their memorandum of fact and law, filed with the Court on
October 2, 2006, in the section [TRANSLATION] “ORDER”, that the document
numbered page 33 was disputed and its release should be prohibited, whereas the
Agency’s decision dated March 14, 2006 had already found that the document
should not be communicated, and so should not be disclosed. Consequently, it
appears in the case at bar that the document numbered page 33 is not at issue.
IV. STANDARD OF JUDICIAL
REVIEW
[11]
In Wyeth-Ayerst
Canada Inc. v. Canada (Attorney General), 2003 FCA 257, at
paragraph 15, the Federal Court of Appeal held, in accordance with the
pragmatic and functional approach, that the appropriate standard of review for
decisions on whether an exemption under subsection 20(1) of the AIA applies to
documents to be disclosed is correctness (see also H.J. Heinz Company of
Canada Ltd. v. Canada (Attorney General), 2006 FCA 378, at para. 15).
[12]
Further,
as part of an application for review pursuant to section 44 of the AIA, the
Court should examine the matter de novo and, if necessary, proceed with
a detailed review of each of the documents at issue filed (Air Atonabee Ltd.
(c. o. b. City Express) v. Canada (Minister of Transport), [1989] F.C.J.
No. 453, at para. 30 (F.C.T.D.) (QL)). That is what was done in the case at
bar, in accordance with these provisions, although these reasons are stated in
general terms.
V. AGENCY’S CONTROL
[13]
The Court
must first deal with a preliminary argument submitted by the applicants. The
latter maintain that article 2088 of the Civil Code of Quebec, S.Q.
1991, c. 64, prevents documents illegally obtained by an employee, who was
furthermore dismissed by her employer, being communicated to the Agency. It
follows that, under section 4 of the AIA, the Agency does not have legal
“control” over the documents filed with the complaint without its consent. In
short, they maintain it is therefore not necessary to consider the application
of section 20 of the AIA.
[14]
I cannot
adopt the applicants’ argument for the following reasons.
[15]
Subsection
4(1) of the AIA gives Canadian citizens and permanent residents a general right
of access to documents under the control of a government institution, subject
to the exemptions set out by Parliament. Even if documents are released to a
government institution without the authorization of the third party involved,
if they are documents under the control of the government institution, the AIA
applies and for good reason. The issue then is whether the documents in
question are covered by one of the exemptions set out elsewhere in the AIA. The
way in which a government institution obtained the documents examined is not a
relevant factor in determining whether a document may be disclosed under the
AIA. In such circumstances, the fact that a government institution has
documents in its possession within the legal or physical meaning of the word
suffices for the AIA to be applicable (Canada Post Corporation v. Canada
(Minister of Public Works) (C.A.), [1995] 2 F.C. 110, affirming an appeal
from a Trial Division judgment, [1993] 3 F.C. 320).
[16]
In
general, it can certainly be said here that the documents considered are under
the “control” of the Agency, since it has the function of implementing and
overseeing the application of the Maple Products Regulations, which were
adopted pursuant to the Canada Agricultural Products Act, as
discussed earlier in this judgment. The latter prohibits the marketing –
whether in import, export or interprovincial trade – of a maple product which
has been contaminated. This also includes the marketing of any non-contaminated
product which has been mixed with a contaminated product. The complaint, which
was based on documents the disclosure of which is at issue here, mentioned
certain irregularities which occurred in the pasteurization of maple syrup in
Fédération warehouses. According to the information contained in the complaint,
the disclosure of which is no longer subject to any objection, maple syrup
unfit for consumption was mixed with syrup meeting quality standards. The maple
syrup in question had been collected from the ground and put into barrels
during pasteurization for the 2003-2004 year.
[17]
It is
clear that under sections 20 et seq. of the Maple Products
Regulations, Agency inspectors have the power to investigate a complaint,
inspect premises where the alleged acts occurred, seize any contaminated maple
product and obtain any relevant information from the applicants. Consequently,
in the course of an investigation, an inspector from the Agency could have
asked to see any relevant document held by the applicants, including the
originals of the documents attached to the complaint. That being so, the fact
that certain documents attached to the complaint dealt with inspection and
quality control procedures voluntarily adopted by the applicants under
provincial legislation or regulations is not a factor which allows the Court to
exclude these documents from the scope of the AIA. If their relevance as
evidence showing the commission of the alleged offences is disputed by the
applicants, it is up to them to apply to the Agency for the documents to be
withdrawn from the record and returned to them, if necessary. No such application
has ever been made by the applicants.
[18]
In these
circumstances, I consider that all the documents represented by the 45 pages
relating to the access to information request and mentioned in the notices sent
to the Agency pursuant to section 27 of the AIA are legally under the Agency’s
control under section 4 of the AIA and should consequently be examined by the
Court pursuant to section 47 of the AIA to determine whether any of the
exemptions mentioned in subsection 20(1) of the AIA apply here.
VI. APPLICATION OF SECTION 20 OF THE ACT
[19]
For the
purposes of these presents, only the application of paragraphs (a), (b)
and (c) of subsection 20(1) of the AIA is at issue. Those exemption
provisions are as follows:
|
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
|
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 . . .
|
[20]
Since the
documents examined are the subject of a confidentiality order, the Court will
deal with the documents in general terms only. I will first consider the
objections based on paragraphs 20(1)(a) and (c) of the AIA, which
must be dismissed based on the evidence in the Court record, and then look at
the objection pursuant to paragraph 20(1)(b) of the AIA, which this time
must be allowed in view of the evidence contained in the Court record.
A. Paragraph 20(1)(a) of the AIA
[21]
Page 45
contains the pasteurization codes and information on percentages of light
transmission in syrup, for various regulatory classes of syrup. In particular,
the applicants submitted that the pasteurization codes found on page 45 are
information of a technical nature, which was developed by Bernard Perreault of
the Fédération, with the obvious purpose of keeping it confidential. On the
other hand, the respondents maintain that the information contained on
page 45 is not a trade secret which under paragraph 20(1)(a) of the
AIA the Agency is bound to refuse to disclose.
[22]
Although
page 45 contains technical information, I do not think it contains “trade
secrets”. In Société Gamma Inc. v. Canada (Secretary of State Department),
[1994] F.C.J. No. 589 (QL), at paragraph 7, the Court defined a trade secret as
“something, probably of a technical nature . . . which is guarded very closely
and is of such peculiar value to the owner of the trade secret that harm to him
would be presumed by its mere disclosure”.
[23]
Most of
the information to be found on page 45 is already in the public domain. Exhibit
A of Sandra McKinnon’s public affidavit mentions three documents from three
websites which contain information regarding the percentages of light
transmission in syrup and their correspondence to classes of syrup. Although
those websites do not indicate pasteurization code numbers, I cannot see how
this information is of such value that harm to its owner would be presumed by
its mere disclosure. Consequently, page 45 is not covered by the exemption
provided for in paragraph 20(1)(a) of the AIA. However, this finding
does not exclude the possible application of paragraph 20(1)(b) of the
AIA, and accordingly it will be taken into account below.
B.
Paragraph
20(1)(c) of the AIA
[24]
The
applicants maintain that the exemption contained in paragraph 20(1)(c)
of the AIA applies here, since disclosure of the documents examined would have
a negative impact on the perception of consumers, buyers and producers of maple
syrup, as well as on control by the Fédération of inventory of the product,
which would be likely to harm its release. The respondents, for their part,
argue that, on the contrary, the documents examined are covered by paragraph 20(1)(c) of the Act only
if the third party in question is able to show that their disclosure would be
likely to result in harm or to show that there are clear reasons for a
reasonable expectation of probable harm.
[25]
Under
paragraph 20(1)(c) of the AIA, the head of a government institution
shall refuse to disclose 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.
In Canada Packers Inc. v. Canada (Minister of Agriculture) (F.C.A.),
[1989] 1 F.C. 47, the Court interpreted paragraph 20(1)(c) of the AIA as
requiring a “reasonable expectation of probable harm”. Further, with regard to
the requirement of evidence of “material financial loss”, Mr. Justice MacKay
concluded at paragraph 43 of SNC-Lavalin Inc. v. Canada (Minister of Public
Works), [1994] F.C.J. No. 1059 (QL), that evidence of “reasonable
expectation of probable harm” must be presented.
[26]
In my
opinion, paragraph 20(1)(c) of the AIA does not apply here. In the case
at bar, the applicants submitted no evidence on the basis of which the Court
can find that the disclosure of the documents in question could reasonably be
expected to result in probable harm. The risk alleged is speculative and
remote. In the circumstances, Bernard Perrault’s affidavit containing general
allegations that the disclosure of information could be expected to result in
material loss and damage is not persuasive.
C.
Paragraph 20(1)(b) of the AIA
[27]
Finally,
the applicants maintain that the documents examined contain information covered
by paragraph 20(1)(b) of the AIA. The respondents do not dispute that the
documents examined are not generally available to the public and that they are
directly concerned with the inspection, pasteurization and conservation of
syrup, which is undertaken by the applicants in order to sell and market maple
products. However, since the applicants’ activities are carried out in the
public interest and the marketing of maple syrup is an activity regulated by
both levels of government, in the respondents’ view the disclosure of the
documents examined should be authorized by the Court.
[28]
Considering
the evidence of a public nature entered in the Court record, after examining
each of the documents objected to by the applicants, and considering the
arguments submitted by counsel at the public hearing and at the in camera portion
of the hearing when the content of each document was discussed, I am of the
opinion that paragraph 20(1)(b) of the AIA applies to the documents
examined here as a whole.
[29]
For the
exemption set out in paragraph 20(1)(b) of the AIA to apply, the
information contained in the documents examined must be
1. financial, commercial, scientific or
technical information;
2. confidential information;
3. information supplied to a government
institution by a third party; and
4. information consistently treated in a
confidential matter by the third party.
[30]
These four
conditions have been met here.
[31]
In the
case at bar, the documents examined contain information of a technical or
commercial nature. They may contain instructions from management regarding the
inspection of syrup, the handling of barrels of syrup or the control of
inventory. These technical notifications must be complied with by inspectors
and other employees. They may also contain internal memoranda or e-mails
exchanged between employees on the grading, disposal, pasteurization, handling
or regrading of syrup, including certain observations made by inspectors on the
quality of the syrup itself or the general condition of the barrels containing
it. The latter information relates directly to the marketing of the syrup.
[32]
I am
further persuaded that the documents examined are confidential in nature, in
that according to the evidence in the Court record they have never been
publicly circulated by the applicants and are still not available to the
public.
[33]
In this
regard, I have also considered the comments made by MacKay J. in Air
Atonabee, supra. At paragraph 41, he suggested the following procedure to
determine whether a given document contains “confidential information”:
. . . whether
information is confidential will depend upon its content, its purposes and the
circumstances in which it is compiled and communicated, namely:
(a) that
the content of the record be such that the information it contains is not
available from sources otherwise accessible by the public or that could not be
obtained by observation or independent study by a member of the public acting
on his own,
(b) that
the information originate and be communicated in a reasonable expectation of
confidence that it will not be disclosed, and
(c) that
the information be communicated, whether required by law or supplied
gratuitously, in a relationship between government and the party supplying it
that is either a fiduciary relationship or one that is not contrary to the
public interest, and which relationship will be fostered for public benefit by
confidential communication.
[34]
In the
case at bar there is no evidence in the record that the commercial and
technical information contained in the documents examined can be obtained from
sources otherwise accessible by the public or can be obtained by observation or
independent study. I also do not believe that the regulatory nature of the
Fédération’s activities confers a general right of public access to the
information contained in the documents examined. If, pursuant to federal or
provincial regulation, documents that may contain financial, commercial,
scientific or technical information are disclosed by the Fédération to the
Agency or the RMAAQ, the question would then be whether they were communicated
confidentially by the Fédération with the reasonable expectation that they
would not be disclosed to the public. The Court is not concerned here with
confidential information that was deliberately provided by third parties,
namely, the applicants, at the request of the government institution, namely,
the Agency, but information that was provided by a fourth party, namely, the
person making the complaint, without the authorization of the third party in
question.
[35]
I note
that in SNC-Lavalin, supra, the Court observed that “third party” within
the meaning of paragraph 20(1)(b) of the AIA is not limited to the
applicant under section 44 of the AIA. At paragraph 35, MacKay J. wrote the
following:
The respondent submits that paragraph
20(1)(b) cannot apply to the evaluation report because it was not
supplied to PWC by the applicant, a third party, but rather by a “fourth
party”, a consultant retained by PWC. That does not preclude the
application of this provision, in my view, for “third party” is defined by the
Act, s. 2, as including any party other than one that requests information or
the government institution.
[36]
Finally,
based on all the evidence entered in the Court record, I consider that in any
case the documents examined were treated confidentially by the applicants.
[37]
Consequently,
under paragraph 20(1)(b) of the AIA, the head of the Agency is required
to refuse to disclose the documents examined.
VII. CONCLUSION
[38]
The
application at bar must be allowed. In principle, under subsection 53(1) of the
AIA, the costs of and incidental to all proceedings in the Court shall be in
the discretion of the Court and shall follow the event, unless the Court orders
otherwise. In the case at bar, although there are two applicants and two
respondents, there will only be one bill of costs against the respondents.
ORDER
THE COURT ALLOWS the application for review and
orders the Agency to not disclose to the access to information requestor the
documents covered by the access to information request in docket A-2005-0218 /
dc and with page numbers 10 to 14, 16, 17, 26, 33, 36, 37 and 45 covered by the
decision of March 14, 2006, as well as documents with page numbers 15, 18 to
25, 27 to 32, 34, 35 and 44, which by the parties’ admission should also not be
released in order to prevent their disclosure. The applicants will be entitled
to their costs against the respondents; only one bill of costs to be prepared
in the circumstances.
“Luc
Martineau”
Certified
true translation
Susan
Deichert, Reviser
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