Date: 20061117
Dockets: A-505-05
A-506-05
Citation: 2006 FCA 378
CORAM: LINDEN J.A.
MALONE
J.A.
PELLETIER
J.A.
BETWEEN:
Docket: A-505-05
H.J. HEINZ COMPANY OF CANADA LTD.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: A-506-05
H.J. HEINZ COMPANY OF CANADA LTD. and
JAMES FRIEL
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
The
issue in this appeal is the exemption from disclosure in the Access to
Information Act, R.S.C. 1985, c. A-1 (the Act) in favour of confidential
commercial information (paragraph 20(1)(b))
or competition sensitive information
(paragraph 20(1)(c)). The appeal also raises the so-called relevance
exception to disclosure.
[2]
In
a decision reported at 2005 FC 1314, von Finckenstein J. of the Federal Court
dismissed Heinz's application for a review of the decision of the Canadian Food
Inspection Agency (the Agency) to disclose documents which Heinz claims are
exempt from disclosure. Heinz now appeals to this Court from that decision.
THE FACTS
[3]
The
facts are not complicated. The Agency received a request under the Act for
records concerning:
…all submissions made by
any party (including but not limited to H.J. Heinz Company of Canada Ltd. and
the Consumers Association of Canada to the Canadian Food Inspection Agency
and/or Agriculture Canada since January 1, 2001, regarding the adequacy,
inadequacy, advisability, or legality of any restrictions on the format of
containers, in terms of volume, weight or otherwise, for any food or drink,
classified as infant or junior food under the Processed Products Regulations or
any proposal for the amendment or replacement of that regulation as it applied
to the container formats of infant and junior food.
[4]
The
Agency identified certain documents which it considered responsive to the
request, including seven documents which contained information about Heinz (the
Records). On October 19, 2004, the Agency wrote to Heinz, identifying the documents
in question and giving Heinz the opportunity to comment as to whether the
documents should be released. The Records included the PowerPoint presentation
(the Presentation) of a talk given by the appellant James Friel on behalf of
Heinz. On November 17, 2004, the Agency wrote to Heinz once again to advise
that it had located
another document which is considered
responsive to the access request, specifically a submission made by Heinz to
the Department of Health on the subject of infant nutrition (the Submission).
[5]
Heinz
objected to the release of the Records on the ground that they contained
commercial information which it had always treated as confidential, and invoked
the exemption for confidential commercial information found at paragraph 20(1)(b)
of the Act. Heinz argued that it enjoyed a very close relationship with the
Agency in which there were often exchanges of confidential information, a
relationship which would be impaired if information could not be shared in
confidence. Heinz also contended that the release of the Records would affect
its competitive position by alerting its competitors to the fact that it had
made submissions on various topics and identifying the nature of those
submissions. This would allow Heinz's competitors to take steps to counter
Heinz's position.
[6]
Heinz
objected to the disclosure of the Submission on the ground that it did not fall
within the terms of the access request. Heinz's position was simply that since
the document was not caught by the request, the question of exemptions did not
arise.
THE DECISION UNDER
APPEAL
[7]
Before
addressing the application judge's reasons, a procedural clarification is
required. Separate applications were made pursuant to section 44 of the Act
with respect to the Records, and with respect to the Submission. The two
applications were consolidated by order and were heard together. The present
appeal was taken from the decisions in each of the two applications. These
reasons are common to both files; a copy will be placed in each file.
[8]
The
application judge considered the standard of review, and relying upon the
decision of this Court in Wyeth-Ayerst Canada Inc. v. Canada (Attorney
General), 2003 FCA 257, concluded that the standard applicable to access to
information cases was that of correctness.
[9]
The
application judge then considered Heinz's arguments with respect to the
commercial confidential nature of the information contained in the Records. He
rejected Heinz's submissions on that issue on the ground that the content of
the documents had nothing to do with Heinz's commercial operations. As the application
judge put it, "They [the records and the presentation] merely reveal Heinz's
concern with nutrition and its fear that smaller sizes may lead to poorer
nutrition." As a result, he dismissed Heinz's objection based upon
paragraph 20(1)(b) of the Act on the ground that Heinz had failed to
establish that the documents contained commercial information.
[10]
Heinz's
argument with respect to the competition sensitive nature of the documents was also
rejected. Heinz argued that the disclosure of the Records would allow its
competitors to fashion a narrow focussed response to its submissions, thereby
reducing the cost of making such submissions and prejudicing Heinz's financial
position. The application judge rejected this argument out of hand. He thought
that it would not come as a surprise to anyone to learn that Heinz had made representations
to government on these issues since it was one of the largest players in the
food industry.
[11]
Finally,
the application judge dealt with the Submission. He noted Heinz's reliance on
the case of Cistel Technology Inc. v. Canada (Correctional Service), 2002
FCT 253, in which the Court found that two documents which did not come within
the terms of the access request did not have to
be disclosed. The application judge
declined to follow Cistel on the basis that it had not been followed in
two subsequent cases: Canadian Tobacco Manufacturer's Council v. Canada
(Minister of National Revenue), 2003 FC 1037, and Mead Johnson
Nutritionals, a division of Bristol-Myers Squibb Canada Co. v. Canada (Attorney
General), 2005 FC 235.
[12]
In
the Canadian Tobacco Manufacturer's Council case, the Court took the
position that section 6 of the Act contained no prohibition against releasing
information which did not come within the scope of the request. In the Court's
view, it would take a substantial amount of "reading in" to find a
prohibition on the release of information that was not relevant to the request.
[13]
In
Mead Johnson Nutritionals, the Federal Court relied upon this Court's
decision in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and
Services) (F.C.A.) (1990), 67 D.L.R. (4th) 315, in which it was held that "the
appellant's interest, as third party intervenor in a request for information,
is limited to those matters set out in subsection 20(1), and it has no status
to object that the government may have given more or less than it was asked
for." As a result, in Mead Johnson Nutritionals, the Court
concluded that a third party cannot complain if a government institution
proposes to disclose records which go beyond the four corners of the request.
[14]
In
the end result, the application judge dismissed Heinz's application.
ANALYSIS
[15]
I
adopt the reasoning of Richard C.J. in Wyeth-Ayerst Canada Inc. on the
issue of standard of review and conclude, as he did, that a decision as to the
application of the exemptions under the Act to any particular record is to be
reviewed on the standard of correctness.
[16]
The
first issue is whether the documents in question contain:
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;
[17]
A
review of the Records shows that, with the exception of the Presentation, they
consist of exchanges of correspondence between Heinz and an official of the
Agency with respect to certain proposed regulatory changes in which Heinz
sometimes comments on the changes by reference to its practices. Heinz's
argument is that the disclosure of these Records would reveal certain
commercial information and that it would impair its relation of confidence with
the Agency.
[18]
A
review of the confidential affidavit of Becky McMullin, the Agency's deponent,
leaves one unclear as to the circumstances giving rise to the Records. The Records
are said to contain Heinz's response to certain proposals with respect to the
amendment of the Processed Products Regulations, SOR/82-701 (the
Regulations). However, Ms McMullin's affidavit does not explain how Heinz
became aware of the proposed changes to the Regulations and whether Heinz,
along with the rest of the industry, was invited to comment on the proposed
amendments or whether Heinz simply took it upon itself to communicate its views
to the Agency.
[19]
The
only portion of Ms McMullin's affidavit which bears on this question is
paragraph 32 in which she notes that the very existence of the Records
demonstrates that Heinz is engaged in making submissions to the Agency on the
subject of the Regulations. This, it is said, would confirm to Heinz's
competitors that Heinz is making such submissions which would enable them to
counter Heinz's submissions by their own.
[20]
In
my view, this does not suggest a process of open consultation with the industry.
If comments had been solicited from the industry, everyone would assume that
Heinz, by virtue of the scale of its operations, would comment. Thus, the
suggestion that the release of the information would alert Heinz's competitors
to the fact that it was intervening in the process leads one to believe that
these communications were not the result of a request for public comment. All
of this to say that Heinz does not appear to be in a position to claim that it
provided the Records to the Agency at its request, or as part of a process of
public consultation. The evidence before me leads to the conclusion that Heinz
forwarded this information to the Agency on its own initiative without any assurance
from the Agency that it would be treated in confidence.
[21]
It
is with that background in mind that I approach the issue of the claim for an
exemption on the ground that the documents contain confidential commercial
information. I have reviewed the documents in issue. I do not agree with the
application judge's conclusion that the Records deal only with Heinz's
regulatory strategy. The Records refer to specific practices or ingredients in
relation to certain classes of prepared foods. They also address the issue of
packaging. I am satisfied that the documents contain commercial information,
broadly defined.
[22]
I
now turn to the issue of confidentiality. It is settled law that any claim of
confidentiality must satisfy both a subjective and an objective element: see Maislin
Ind Ltd. v. Canada (Min Ind Trade &
Commerce Reg Economic Expansion), [1984] 1 F.C. 939. The subjective element
is the party's own belief as to the confidentiality of the information and its
consistent treatment of it as such. The objective element is an objective
assessment of the confidential nature of the information based on its content
and the circumstances under which it is transmitted to government: see Canada
(Information Commissioner) v. Canada (Canadian
Transportation Accident Investigation and Safety Board), 2006 FCA
157, at para. 72, and the authorities cited there. The locus classicus
of the test of confidentiality is Air Atonabee Ltd. v. Canada (Minister of
Transport),
(1989) 27 F.T.R. 194 (F.C.T.D.), in which MacKay J. articulated the objective element
of the test for confidentiality as follows at page 210:
…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.
[23]
The
communications in question here (apart from the Presentation and the
Submission) are all communications by a regulated entity to its regulator
dealing with changes to the regulatory regime. Even if Heinz had a subjective
expectation that such communications would not be disclosed, there could be no
objective basis for such an expectation. Changes to a regulatory regime
are matters of public interest. The public
has a legitimate interest in knowing the extent to which regulated entities
have influenced the regulator and for whose benefit.
[24]
Heinz
claims that there is a confidential relationship between it and the Agency
based on the presence of Agency inspectors in its plants. While Heinz can
reasonably expect that information gathered by Agency inspectors will not be
used for purposes other than the enforcement of the relevant legislation, the
relationship is not a confidential relationship. It is a relationship between
the regulator and the regulated and, as such, is necessarily subject to public
scrutiny. While the scale of Heinz's operations may give it easy access to the
Agency, that ease of access is not to be taken for confidential access. Nothing
in the material before me establishes that Heinz has a confidential
relationship with the Agency.
[25]
The
application judge adverted to these considerations in his reasons, though he
did so when dealing with the claim for an exemption under paragraph 20(1)(c)
of the Act. At paragraph 19 of his reasons, he described the process by which
government seeks input from stakeholders when considering legislative
amendments. After setting out the elements of the process, he went on to say:
For this process to be effective,
it has to be open and transparent. To suggest that the government cannot
disclose (especially when asked under an access request) a policy openly
advocated by one of the stakeholders, that in no way reflects any of the
operational concerns or impacts of the stakeholder, merely because it may
reveal that stakeholder's regulatory policy (i.e. its position), completely
flies in the face of the purpose of the Act. This would make meaningful
government consultations impossible.
[26]
I
would not characterize the contents of the communications as the application
judge did, but I agree with his reasoning as to the nature of the process. I
have already said that I do not agree with the application judge's assertion
that the information in question here is not commercial
information. However, I do agree that the
process of public consultation, if that is indeed what is in issue here, is not
advanced by Heinz's claim of confidentiality. As the application judge pointed
out, the development of public policy requires a public debate, a process which
is neutered if every communication to government is sheltered under the rubric
of confidential communications.
[27]
The
Presentation stands on slightly different factual footing but is caught by the
very same principle. While the Presentation did not deal with the specifics of
regulatory reform, it was a communication intended to influence the regulatory
process, and as such, it was not a communication which occurred in the context
of a confidential relationship.
[28]
Heinz
also sought to shelter the Records in question under paragraph 20(1)(c)
which deals with records whose disclosure could affect a third party's
competitive position. In this case, Heinz says that the disclosure of its
position on regulatory change would allow its competitors to challenge that
position. With respect, this is the very raison d'être for access to
information legislation. It exists to allow others, including competitors, to
take issue with special pleading. In any event, nothing has been produced to me
which would satisfy me that the disclosure of the Records would expose Heinz to
a reasonable expectation of probable harm: see Canada Packers Inc. v Canada (Minister of
Agriculture), [1989] 1 F.C. 47, at p. 60.
[29]
The
application judge did not err in dismissing this element of Heinz's
application.
[30]
The
last issue is Heinz's claim that it was entitled to raise the issue of whether
the documents which the Agency proposed to disclose were within the terms of
the original request. As noted earlier, the application judge based his
decision upon two prior decisions of the Federal Court which limited the
grounds for non-disclosure to those set out in section 20 of the Act. Those decisions
are supported by the earlier decision of this in Saint John Shipbuilding
Ltd. where Hugessen J.A. (as he then was) said:
…Two minor points should
be mentioned in closing. First, the appellant suggested that the material
ordered to be released was in some respects different from what had been
requested; the short answer to that is that the appellant's interest, as third
party intervenor in a request for information, is limited to those matters set
out in subsection 20(1), and it has no status to object that the Government may
have given more or less than it was asked for.
[31]
This
issue has received further consideration since Saint John Shipbuilding Ltd.
was decided. In Siemens Canada Ltd. v. Canada (Minister of Public Works and
Government Services) (Siemens) 2001 FCT 1202, (2001), 213 F.T.R.
125, aff'd 2002 FCA 414, (2002), 21 C.P.R. (4th) 575, this Court, in very brief
reasons, allowed a third party to raise issues of national security in the
course of a section 44 review. Siemens was followed by this Court in H.J.
Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2004 FCA 171, [2005]
1 F.C.R. 281, in which the third party was allowed to raise the exemption for
personal information in section 19 of the Act, even though the personal
information in question related to a person other than the third party. On
appeal to the Supreme Court, this Court's judgment was affirmed (2006 SCC 13,
[2006] 1 S.C.R. 441). It can now be said to be settled law that a third party
is not limited to the grounds set out in section 20.
[32]
That
said, does the Act allow a third party to resist disclosure on the ground that
the document in question is not within the class of documents requested in the
access request? The relevant provisions of the Act are the following:
|
4.
(1) Subject to this Act but notwithstanding any other Act of Parliament,
every person who is
(a)
a Canadian citizen, or
(b)
a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act,
has a right to and shall, on request, be given access to
any record under the control of a government institution.
…
6.
A request for access to a record under this Act shall be made in writing to
the government institution that has control of the record and shall provide
sufficient detail to enable an experienced employee of the institution with a
reasonable effort to identify the record.
…
20.
(1) Subject to this section, the head of a government institution shall
refuse to disclose any record requested under this Act that contains …
…
27.
(1) Where the head of a government institution intends to disclose any
record requested under this Act, or any part thereof, that contains or
that the head of the institution has reason to believe might contain
(a)
trade secrets of a third party,
(b)
information described in paragraph 20(1)(b) that was supplied by a third
party, or
(c)
information the disclosure of which the head of the institution could
reasonably foresee might effect a result described in paragraph 20(1)(c)
or (d) in respect of a third party,
the
head of the institution shall, subject to subsection (2), if the third party
can reasonably be located, within thirty days after the request is received,
give written notice to the third party of the request and of the fact that
the head of the institution intends to disclose the record or part thereof.
[Emphasis
added.]
|
4.
(1) Sous réserve des autres dispositions de la présente loi mais nonobstant
toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une
institution fédérale et peuvent se les faire communiquer sur demande :
a) les citoyens canadiens;
b) les résidents permanents au sens du
paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés.
…
6.
La demande de communication d'un document se fait par écrit auprès de l'institution
fédérale dont relève le document; elle doit être rédigée en des termes
suffisamment précis pour permettre à un fonctionnaire expérimenté de l'institution
de trouver le document sans problèmes sérieux.
…
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…
…
27.
(1) Sous réserve du paragraphe (2), le responsable d'une institution fédérale
qui a l'intention de donner communication totale ou partielle d'un document
est tenu de donner au tiers intéressé, dans les trente jours suivant la
réception de la demande, avis écrit de celle-ci ainsi que de son intention,
si le document contient ou s'il est, selon lui, susceptible de contenir :
a) soit des secrets industriels d'un tiers;
b) soit des renseignements visés à l'alinéa
20(1)b) qui ont été fournis par le tiers;
c) soit des renseignements dont la
communication risquerait, selon lui, d'entraîner pour le tiers les
conséquences visées aux alinéas 20(1)c) ou d).
La
présente disposition ne vaut que s'il est possible de rejoindre le tiers sans
problèmes sérieux.
[Non
souligné dans l'original.]
|
[33]
In
early litigation, the Federal Court held that only documents which had been
requested were required to be disclosed: see Canadian
Jewish Congress v. Canada (Minister of Employment and Immigration),
[1996] 1
F.C. 268, at para. 72-73; Cistel. However, the general trend in the Federal Court
has favoured disclosure of documents even though they may not fall within the
four corners of the access request. For example, in the Canadian Tobacco
Manufacturer's Council case, Russell J. held that the Act favours
disclosure, not non-disclosure. The judge found that "The fact that there is no obligation on an institution to disclose
irrelevant information to a requester does not give third parties a right to
prevent disclosure on the grounds of irrelevancy.": see para. 93 of the
application judge's reasons. The same conclusion was reached in Canadian
Pacific Hotels Corp. v. Canada (Attorney General), 2004 FC
444,/ and in Mead Johnson Nutritionals.
[34]
The
judges of the Federal Court have tended to come to this conclusion on the basis
that there is no exemption in favour of "irrelevant" documents, and
consequently there is no barrier to their disclosure. In my view, this analysis
is misleading. Heald J. was correct when he concluded in
Canadian Jewish Congress that the
only documents whose disclosure can be compelled are "requested
documents". Consequently, if the disclosure of "non-requested"
documents cannot be compelled, there is no obligation to which an exemption against
their disclosure could apply. This does not mean that "non-requested"
documents are not subject to the exemptions. If certain types of information
are exempted from mandatory disclosure, it stands to reason that they are also
exempted from voluntary disclosure via "non-requested" documents.
[35]
But,
the fact that disclosure cannot be compelled does not mean that it is
forbidden. The starting point of any analysis of this question is section 4 of
the Act which makes it clear that the premise of the Act is that citizens and
permanent residents have a right to be given access to any document under the control
of a government institution. The purpose of the written request is to identify
the nature of the records being sought so that they can be identified and
brought forward. A written access request serves to define the relevant
documents, not to exclude them. The presumptive right of access conferred by section
4 applies to all documents, including those not described in an access request.
Consequently, the answer to the objection to the disclosure of "non-requested"
or "irrelevant" documents is the affirmation of the presumptive right
to access, and not the absence of an exemption for "non-requested" or
"irrelevant" documents.
[36]
In
the end result, I would dismiss the appeal with costs to the respondent.
"J.D. Denis
Pelletier"
"I
agree
A.M. Linden J.A."
"I
agree
B. Malone J.A."
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