Date: 20120307
Docket:
A-255-11
Citation: 2012 FCA 75
CORAM: NOËL
J.A.
GAUTHIER J.A.
STRATAS
J.A.
BETWEEN:
TOP ACES
CONSULTING INC.
Appellant
and
THE MINISTER
OF NATIONAL DEFENCE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench, at Ottawa, Ontario, on March 7, 2012.)
NOËL J.A.
[1]
At
issue in this appeal is whether a waiver allowing the Minister of National
Defence (the Minister) to disclose specified information gathered pursuant to
the Defence Production Act, R.S.C. 1985, c. D-1 (DPA), constitutes a
consent under section 30 of the DPA, and if so, whether this consent relieves
the Minister from its duty to refuse to disclose the subject information
pursuant to subsection 24(1) of the Access to Information Act, R.S.C.
1985, c. A-1 (ATIA).
[2]
Beaudry
J. of the Federal Court (the Federal Court judge) answered both questions in
the affirmative in refusing to grant the judicial review of a decision by the
Department of National Defence to disclose unit prices contained in Standing
Offers made by the appellant for Airborne Training Services. For the reasons
which follow, the appeal cannot succeed.
[3]
Section
30 of the DPA provides:
|
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.
|
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.
|
[My emphasis]
Section 30 of the DPA is listed in the schedule
referred to in subsection 24(1) of ATIA which provides:
|
24. (1) The
head of a government institution shall refuse to disclose any record
requested under this Act that contains information the disclosure of which is
restricted by or pursuant to any provision set out in Schedule II.
…
|
24. (1) Le
responsable d’une institution fédérale est tenu de refuser la communication
de documents contenant des renseignements dont la communication est
restreinte en vertu d’une disposition figurant à l’annexe II.
[…]
|
[4]
The
waiver clause agreed to by the appellant reads :
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.
[5]
The
Federal Court judge held that by agreeing to this clause the appellant gave its
“consent” to the release of the unit prices as this word is used in section 30
of the DPA. He further held that subsection 24(1) of the ATIA did not operate
to prevent the release of this information.
[6]
The
appellant contends that the Federal Court judge erred in holding that it
authorized the release of its unit prices and that even if it did, subsection
24(1) of the ATIA remains operative and prevents the Minister from releasing
this information. According to the appellant, the Federal Court judge failed to
follow the majority decision of this Court in Canada (Information
Commissioner) v. Canada (Minister of Industry), 2007 FCA 212, [2007] F.C.J.
No. 780 [Minister of Industry] in construing subsection 24(1) as he did.
[7]
The
question whether the appellant consented to the release of its unit prices as
contemplated by section 30 of the DPA arguably raises a mixed question of fact
and law to be assessed on a standard of reasonableness, and the question
whether subsection 24(1) of the ATIA operates as an absolute bar to the release
of the requested information raises a question of law to be reviewed on a
standard of correctness (Merck Frosst Canada Ltd. v. Canada (Health),
2012 SCC 3 at paras. 53 and 54).
[8]
Dealing
with the first question, we are of the view that regardless of the standard of
review to be applied, the Federal Court judge committed no error in holding
that the appellant consented to the disclosure of its unit prices pursuant to
section 30 of the DPA and that accordingly the Minister was not bound by the
restriction set out in that provision. The appellant has failed to advance any tenable
argument to counter the conclusion reached by the Federal Court judge on this
point.
[9]
The
appellant’s contention that subsection 24(1) of the ATIA operates to prevent
the Minister from releasing its unit prices even though it authorized their
disclosure requires more elaboration. In support of this contention, the
appellant relies on the opinion of Evans J.A. in Minister of Industry
who held in the context of that case that subsection 24(1) (Minister of
Industry at para. 69):
“imposes an unqualified duty
on the head of a government institution to “refuse to
disclose any record requested under this Act”
which contains information, the disclosure of which is “restricted”
by a provision listed in Schedule II.”
[Emphasis in
the original]
[10]
Relying
on this reasoning, the appellant submits that the simple fact that its unit
prices constitute information the disclosure of which is “restricted” by a
provision listed in Schedule II of the ATIA (i.e. section 30 of the DPA)
ought to have ended the matter.
[11]
The
Federal Court judge rejected this contention after pointing out that the above
reasoning is contained in the dissenting reasons of Evans J.A. However, as the
appellant correctly points out, although Décary J.A. ultimately adopted the
solution proposed by Richard C.J., he expressly adopted the reasons of Evans
J.A. on this point (Minister of Industry at para. 28). It therefore
becomes necessary to determine precisely what was decided by Evans J.A. and
agreed to by Décary J.A.
[12]
The
Court in that case was confronted with a request for the release of information
which could potentially be accessed by two distinct statutory methods, the
first being the one set out in the ATIA, and the other being subsection 17(2)
of the Statistics Act, R.S.C. 1985, c. S-19 [Statistics Act],
which authorizes the Chief Statistician to release specified information
subject to specific terms and conditions. The Information Commissioner took the
position that a refusal by the Chief Statistician to disclose information,
which may be disclosed under subsection 17(2), could be reviewed within the
framework of the ATIA despite the prohibition set out in subsection 24(1) (Minister
of Industry at paras. 66 to 69).
[13]
Evans
J.A. rejected this contention. He referred to the statements made before the
Parliamentary Committee responsible for the ATIA which suggested that
provisions from other statutes referred to in Schedule II of the ATIA, such as
section 17 of the Statistics Act, were part of the scheme under which
information could be accessed by different methods crafted to deal with the
particularities of the information gathered under these particular statutes (Minister
of Industry at paras. 72 to 74). According to Evans J.A., subsection 24(1)
of the ATIA, by prohibiting the release of this information under the ATIA,
constitutes a clear acknowledgment by Parliament that these alternative methods
of accessing information operate to the exclusion of the ATIA (Minister of
Industry at para. 75). The appropriate recourse was therefore the one set
out in subsection 17(2) of the Statistics Act (Minister of Industry
at para. 76). This reasoning so far as it goes is unimpeachable particularly when
regard is had to the statutory objective set out in subsection 2(2) of the ATIA
which confirms that the ATIA is intended to complement and not replace existing
procedures for access to government information.
[14]
However,
the situation with which we are confronted is entirely different in that, as
the appellant itself asserts, “the DPA does not in any way deal with a
mechanism to request or to disclose documents” (Memorandum of the appellant at
para. 41). It follows that construing subsection 24(1) of the ATIA as the
appellant suggests would leave the person who is seeking the release of the
subject information in the present case without any statutory method for
accessing it, even though the appellant has consented to its release.
[15]
This
cannot have been the intent of Parliament when regard is had to subsection 2(1)
of the ATIA which provides for a right of access to government information
subject only to “necessary exceptions”. Rather, it seems clear that when
the disclosure of information is restricted by a statutory provision set out in
Schedule II of the ATIA in circumstances where no alternative method for
accessing this information is provided in the statute enacting the restriction,
subsection 24(1) of the ATIA must be construed as incorporating the restriction.
[16]
We
note that this reading is consistent with the decision of the Federal Court in Siemens
Canada Ltd. v. Canada (Minister of Public Works and Government Services),
2001 FCT 1202 [Siemens] later affirmed by this Court (2002 FCA 414),
which was decided on the basis that section 30 of the DPA had been so
incorporated (Siemens at paras. 12 and 18 to 20).
[17]
The
Federal Court judge proceeded on proper principle when he considered the
restriction set out in section 30 of the DPA and ordered the disclosure of the unit
prices on the basis that this information was not “restricted” within the
meaning of subsection 24(1) of the ATIA by reason of the consent given by the
appellant.
[18]
The
appeal is accordingly dismissed with costs which we fix on consent at $1,500.
“Marc
Noël”
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