Date:
20071212
Docket:
A-309-03
Citation:
2007 FCA 397
CORAM: DESJARDINS
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
SNC LAVALIN
INC.
Appellant
and
THE MINISTER FOR INTERNATIONAL CO-OPERATION
and THE MINISTER OF FOREIGN AFFAIRS
Respondents
and
THE INFORMATION COMMISSIONER OF CANADA
Intervener
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on December 12,
2007)
SHARLOW J.A.
[1]
This
is an appeal of the judgment of Justice Gibson dated May 30, 2003 (2003 FCT
681) dismissing the application of SNC Lavalin Inc. (“SNC”) under section 44 of
the Access to Information Act, R.S.C. 1985, c. A-1.
[2]
The
determination of a section 44 application is a question of mixed law and fact. The
standard of appellate review is palpable and overriding error,
unless an extricable error of law
can be identified, in which case the standard of review is correctness (Janssen-Ortho
Inc. v. Canada (Minister of Health), 2007 FCA 252 at paragraph 5; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraphs
27-28).
[3]
SNC’s appeal has been presented on the basis of an error of law.
However, our view is that, except in relation to section 19 of the Access to
Information Act, the appeal essentially challenges Justice Gibson’s
appreciation of the evidence and his assessment of the weight to be given to
it. Therefore, the applicable standard of review is palpable and overriding
error, except for the issues relating to section 19.
[4]
The
section 44 application that is the subject of this appeal was the result of a
notice to SNC that it was a third party with an interest in the decision of the
respondent Ministers to disclose certain records in response to an application
for access to information. The Ministers were acting through the Access to
Information Coordinator for the Canadian International Development Agency
(“CIDA”). The request for information sought auditors’ working papers in
relation to a certain project involving SNC and CIDA.
[5]
The
only items remaining in dispute are four statements found in the minutes of a
meeting between SNC employees and CIDA officials. In support of its argument
that those four items should not be disclosed, SNC relies on paragraphs 20(1)(b)
and (c) and section 19 of the Access to Information Act. Any item
that comes within any of those provisions cannot be disclosed.
Paragraph 20(1)(b)
[6]
Justice
Gibson found that the disputed items are not “confidential information” within
the meaning of paragraph 20(1)(b). In the leading case on paragraph
20(1)(b), Air Atonabee Ltd. v. Canada (Minister of Transport) (1989),
27 F.T.R. 194, Justice MacKay proposed three questions to be considered in
determining whether information is “confidential information”. The three
questions are as follows (at page 210, paragraph [42]):
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[…] 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.
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[7]
Although
Justice Gibson did not specifically cite the Air Atonabee questions, his
reasons clearly answer the second and third questions in the negative. That
conclusion must stand absent palpable and overriding error. The only evidence
on this point is the affidavit submitted by SNC in which the affiant expressed
the opinion that the disputed items were intended by all of the meeting
participants to be kept confidential, and that the public interest in open and
frank communications between SNC and CIDA would be fostered by keeping the
information confidential. That evidence is not contradicted. The question,
however, is whether it is sufficient. As we understand Justice Gibson’s
reasons, he was not satisfied that the evidence was sufficient. We are unable
to detect a palpable and overriding error in that conclusion.
[8]
SNC
refers to Justice Gibson’s statements to the effect that there was no evidence
that SNC communicated to CIDA its wish to keep the information confidential, or
that there was any mutual understanding or accepted practice that the
information would be treated as confidential. SNC argues that Justice Gibson erred
in law by concluding that the absence of such evidence was fatal to a section
44 application based on paragraph 20(1)(b).
[9]
In
our view, this argument is based on a misinterpretation of Justice Gibson’s
reasons. We do not accept that he altered or intended to alter the principles to
be applied in considering a section 44 application based on paragraph 20(1)(b),
as summarized in Air Atonabee. He was simply commenting on what was
absent from the record, as he was entitled to do. Those comments form a cogent
part of his reasons and disclose no error of law.
[10]
We
conclude that Justice Gibson made no reviewable error in dismissing the section
44 application of SNC in so far as it was based on paragraph 20(1)(b) of
the Access to Information Act.
Paragraph 20(1)(c)
[11]
Air
Atonabee is
also the leading case on paragraph 20(1)(c), which Justice MacKay
explained as follows at page 210 (at paragraph [34], citations omitted):
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In the case of s. 20(1)(c) there are two
circumstances under either of which, as alternatives to the criteria in other
subsections and to each other, information is exempt from disclosure, that
is:
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1)
|
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where the disclosure of the information could
reasonably be expected to result in material financial loss or gain to a
third party, or
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2)
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where the disclosure of the information could
reasonably be expected to prejudice the competitive position of a third
party.
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Both of these latter circumstances require a reasonable
expectation of probable harm […] and speculation or mere possibility of harm
does not meet that standard […].
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[12]
SNC
argues that the evidence it submitted in support of its position on paragraph
20(1)(c) was sufficient to establish a reasonable expectation of
probable harm. The evidence, the same affidavit referred to above, contains the
affiant’s opinion of the harm he believed could result if the disputed items
were disclosed. Justice Gibson concluded that the evidence was too speculative
to meet the test in paragraph 20(1)(c). In our view, Justice Gibson made
no palpable and overriding error in reaching that conclusion. We conclude that
Justice Gibson made no reviewable error in dismissing the section 44
application of SNC in so far as it was based on paragraph 20(1)(c) of
the Access to Information Act.
Section 19
[13]
Justice
Gibson dismissed the application in relation to section 19 on the basis that,
as a matter of statutory interpretation, section 19 could not be invoked in a
section 44 application. Justice Gibson’s reasons are ambiguous as to whether,
despite reaching that conclusion on the scope of section 44, he went on to
consider the merits of the application of SNC insofar as it relied on section
19. For the purposes of this appeal, we will assume that he did not consider
the merits.
[14]
Justice
Gibson did not have the benefit of the decision of the Supreme Court of Canada
in H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1
S.C.R. 441. In that case, it was determined that section 19 can be invoked in a
section 44 application. The issue now before this Court is whether the disputed
information is personal information as defined in section 3 of the Privacy
Act. SNC argues that it is. The Ministers and the intervener, the
Information Commissioner, argue that the disputed items fall outside the
definition because of the exemption in paragraph (k) of the definition,
which reads as follows:
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(k) information
about an individual who is or was performing services under contract for a
government institution that relates to the services performed, including the
terms of the contract, the name of the individual and the opinions or views
of the individual given in the course of the performance of those services
[…].
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k) un individu qui, au titre d’un contrat, assure ou a assuré la
prestation de services à une institution fédérale et portant sur la nature de
la prestation, notamment les conditions du contrat, le nom de l’individu ainsi
que les idées et opinions personnelles qu’il a exprimées au cours de la
prestation […].
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[15]
Based
on our reading of the disputed items in their context, we agree with the
Ministers and the Information Commissioner on this point.
[16]
SNC
also argues that the disputed items are capable of identifying certain other
individuals, and that in relation to those individuals, none of the exemptions
apply. The Ministers argue that the words used in the disputed items are too
general to accept that interpretation. Again, we agree with the Ministers.
[17]
We
conclude that the section 44 application should be dismissed insofar as it is
based on section 19 of the Access to Information Act.
Conclusion
[18]
This
appeal will be dismissed with costs.
“K. Sharlow”
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