Canadian Broadcasting Corp. v. National Capital Commission, docket T-2200-97

Date: 19980519

Docket: T-2200-97

IN THE MATTER OF AN APPLICATION pursuant to section 44 of the Access to

Information Act, R.S.C. 1985, c. A-1, for the review of a decision made by the

National Capital Commission to release third party information.

BETWEEN:

CANADIAN BROADCASTING CORPORATION

Applicant

and

NATIONAL CAPITAL COMMISSION

Respondent

                                                        REASONS FOR ORDER

TEITELBAUM J.:

INTRODUCTION

[1]         This is an application for review, pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act), of the decision of the respondent to disclose third party information, namely an agreement between the applicant and the respondent concerning Canada Day 1996 and 1997. The applicant claims that this agreement should be exempt from disclosure pursuant to paragraphs 20(1)(c) and 20(1)(d) of the Act.

FACTS

[2]         The applicant and respondent entered into an agreement dated March 8, 1996 (the Agreement) for the production and television broadcast of the Canada Day shows for 1996 and 1997. The Agreement contained all the terms and conditions pursuant to which the parties agreed to produce and broadcast the shows.

[3]         On July 31, 1997, the respondent received a request under the Act pertaining to the Agreement. On August 21, 1997, the applicant received a letter from Ginette Grenier, Chief of Access and Security of Information for the respondent, informing the applicant that the Agreement was the subject of a request made pursuant to the Act. The applicant and respondent corresponded in relation to the disclosure of the Agreement. On September 24, 1997, the applicant received a letter from the respondent indicating that the Agreement would be disclosed.

Mr. J. David Power

Legal Counsel

Canadian Broadcasting Corporation

Law Department

250 Lanark Avenue

C.P. Box 3220, Station C

Ottawa, Ontario

K1Y 1E4

Dear Mr. Power:

This is further to your letter dated September 12, 1997 in reference to the request we received, under the Access to Information Act, for information related to various contracts including the CBC-NCC contract relating to Canada Day.

We considered the representations you submitted in your letters of September 3rd & 12th. In light of the numerous Federal Court cases interpreting the exemptions found in subsection 20(1) of the ATI Act, we have concluded that the records cannot be exempted.

With regard to your comments regarding the exempted information from the minutes of the NCC Executive Committee of March 4, 1996, following CBC's written representations and my telephone conversations with Mrs. Joanne Roy-Aubrey of CBC, I had exempted information relating to the noon show, evening show, technical support as well as the total costs for each year.

At the time I reviewed the minutes, I understood that there would be one payment made for a total of $880,000 and therefore considered the total costs per year to also be part of the breakdown details.

However, I have since learned that the NCC had to pay $450,000 in the first year and $430,000 in the second year of the contract. The NCC, which is a government funded institution, is publicly accountable for the disbursement of public funds put in its trust. Therefore, it cannot protect the amount paid to the CBC in each year.

You are entitled to request a review of this decision by the Federal Court - Trial Division pursuant to sec. 44 of the Act (copy enclosed for your convenience). That request for review must be made within 20 days of the mailing date of this notice. Should you make such an application to the Court, we must be notified accordingly. If you do not request a review of this matter, the person who requested the records will be given access to them on or after October 15, 1997.

If you have any questions do not hesitate to call me.

Yours sincerely,

"Ginette Grenier"

Ginette Grenier

Chief, Access & Security of Information

(613) 239-5198

[4]         Pursuant to the last paragraph of the above letter, the applicant, on October 10, 1997, filed an Originating Notice of Motion.

[5]         The grounds for the motion, as stated in the Originating Notice of Motion, are:

(a) that the disclosure of this agreement violates sections 20(1)(c) and 20(1)(d) of the Access to Information Act;

(b) that it is not necessary for the parties to appear personally for this matter to proceed expeditiously;

(c) that public disclosure of the correspondence and the Agreement before the resolution of this matter could defeat the ultimate determination of this Honourable Court.

[6]         The only evidence filed by the applicant are the affidavits of Heather Marshall dated October 9, 1997 and November 26, 1997.

RELEVANT STATUTORY PROVISIONS

[7]         Section 2(1) of the Act states its purpose is to provide the public with a right of access to information of government records and that exceptions should be limited:

[8]         The applicant bases its application upon paragraphs 20(1)(c) and (d) of the Act:

[9]         The respondent submits that if the court finds that portions of the Agreement are exempt, the court may still release non-exempt portions of the Agreement under section 25 of the Act:

SUBMISSIONS

1. The Applicant's Submissions

[10]       The applicant submits that the Agreement reflects the manner in which the applicant contracts for events such as Canada Day. The applicant contends that the Agreement contains many elements of a sensitive competitive nature including the amount requested by the applicant for participating in and broadcasting the Canada Day event, the manner in which services are delivered and the type of incentives provided such as a sponsorship package.

[11]       The applicant submits that, under paragraphs 20(1)(c) and 20(1)(d) of the Act, records will be withheld where a reasonable expectation of probable harm is established by the party opposing release. The applicant submits that there is a reasonable expectation of probable harm to its competitive position and contractual or other negotiations if the Agreement is

disclosed. The applicant submits that disclosure of the Agreement would be harmful to the applicant's competitive position because it would disclose the aforementioned elements and allow competitors to incorporate those elements into a competing proposal. The applicant argues that disclosure would interfere with the applicant's contractual or other relations because the release of sponsorship information, contract price per year and the manner in which services are delivered could affect contractual negotiations involving similar projects.

[12]       In particular, the applicant submits that the release of articles 2.03(d), 3.01(a), 4 and 4.05, Schedule B of the Agreement could reasonably be expected to prejudice the applicant and interfere with the applicant's contractual or other negotiations.

[13]       The applicant contends that, in drafting the Agreement, the parties recognized that the release of this information would cause harm to the applicant so they incorporated article 7.14 into the Agreement which states:

The terms of this Agreement are confidential. No reference shall be made to any of the terms and conditions of this Agreement, as they affect the other party, in any advertising or publicity material or in any informational release issued by or for either party without the prior informational release issued by or for either party without the prior written consent of the other party. Both Parties recognize that the NCC is a government institution and thus subject to the provisions of the Access to Information Act. Further, the NCC recognizes that the CBC is exempt from the provisions of the Access to Information Act and that this exemption supersedes the foregoing.

[14]       Finally, the applicant notes that in a previous request for details of this Agreement, the respondent refused to disclose the breakdown of the cost of the contract on the grounds that release would breach subsection 20(1) of the Act.

2. The Respondent's Submissions

[15]       The respondent submits that the purpose of the Act is to provide disclosure of government records and that exceptions should be limited and specific. Thus, the respondent submits that there is a heavy burden on the party seeking to prevent disclosure. The respondent submits that the standard of proof in respect of paragraphs 20(1)(c) and 20(1)(d) of the Act is on the balance of probabilities.

[16]       The respondent submits that the test for the application of the exemptions in paragraphs 20(1)(c) and 20(1)(d) of the Act is that of a reasonable expectation of harm.

[17]       With regard to paragraph 20(1)(c) of the Act, the respondent submits that the applicant has not demonstrated a reasonable expectation of harm by simply affirming in an affidavit that disclosure would result in financial loss and interfere with contractual and other negotiations. The respondent submits that the applicant has merely provided conclusions of probable harm rather than evidence of probable harm. The respondent contends that there is no evidence and it is not self-evident that there would be a reasonable expectation of probable harm from the release of the articles cited by the applicant or the balance of the Agreement. The respondent argues that further evidence is needed to show that those outcomes are reasonable.

[18]       In addition, the respondent submits that article 7.14 of the Agreement does not oust the jurisdiction of Parliament. The respondent contends that an agreement between a private party and a government institution is not a basis for an exception under the Act. Furthermore, the respondent argues that there is no evidence as to the parties' intention regarding article 7.14 of the Agreement.

[19]       With regard to paragraph 20(1)(d) of the Act, the respondent submits that "interference" means "obstruct" in that paragraph. The respondent argues that the applicant must show that there is a probability and not a mere possibility that the disclosure of the Agreement might interfere with its contractual or other negotiations. Again, the respondent submits that the applicant has merely provided conclusions and not evidence as to how it is reasonably probable that the release of the articles cited by the applicant or the balance of the Agreement would interfere with the applicant's contractual or other negotiations. The respondent adds that it is not self-evident from the articles themselves that a reasonable expectation of probable harm has been established.

[20]       Moreover, the respondent contends that the applicant must show an obstruction in actual contract negotiations and not just an increase in competition resulting from the disclosure of information. The respondent notes that there is no evidence of obstruction of an actual contract negotiation that would be caused by the release of the Agreement.

[21]       Finally, the respondent submits that if some information is exempt from disclosure, the head of an institution must determine whether any part of the record can be reasonably severed. The respondent notes that severance is not reasonable when the remains of the document is meaningless or misleading because the remaining information is taken out of context of the document as a whole. However, the respondent submits that severance would be reasonable in this case and would not leave a meaningless or misleading document.

DISCUSSION

[22]       I will begin by briefly outlining the articles of the Agreement which the applicant submits would cause harm if they were disclosed. Article 2.03(d) gives the applicant the right of first refusal to negotiate the broadcast rights for Canada Day 1998 and 1999. Article 3.01(a) provides that the respondent will reimburse the applicant a specific sum of money in 1996 and in 1997 for the applicant's direct cost in fulfilling its obligations under the Agreement, the total sum being $880,000. Article 4 provides that the applicant and respondent will develop an Integrated Sponsorship Package. The parties agreed that three sponsors would be sought and any revenue secured from them would be divided evenly. Schedule B provides that the price of the Integrated Sponsorship Package for the 1996 show would not be less than a specific sum of money for each corporate sponsor. The remainder of Schedule B provides the benefits that each corporate sponsor will receive.

[23]       In addition, article 7.14 states that the terms of the Agreement are confidential and that they shall not be released without written consent by the party affected.

[24]       As both the applicant and respondent noted, in Canada Packers Inc. v. Minister of Agriculture, [1989] 1 F.C. 47 at page 60 (F.C.A.), the court held that the exceptions to access

in paragraphs 20(1)(c) and 20(1)(d) of the Act require a reasonable expectation of probable harm. The court added that any exceptions to the public's right of access should be limited and specific. Furthermore, in Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (F.C.T.D.), Rothstein J. stated at page 441 that the statute places a "heavy burden" upon the party attempting to prevent disclosure. The standard of proof required for both paragraphs 20(1)(c) and 20(1)(d) are on the balance of probabilities (see Tridel Corp. v. CHMC (1996), 115 F.T.R. 185 at pages 196, 201 (F.C.T.D.)).

[25]       In SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 at page 127 (F.C.T.D.), the court held the applicant cannot merely affirm by affidavit that disclosure would cause the harm discussed in paragraph 20(1)(c) of the Act. The court stated that these affirmations are the very findings that the court must make and so further evidence establishing probable harm is needed.

[26]       The evidence as to the harm that would be caused to the CBC is, at best, very meagre. In her affidavit of October 9, 1997, Ms. Marshall states, in paragraphs 6, 7, 8 and 9:

6. The Agreement reflects the manner in which CBC contracts for events such as Canada Day.

7. The Agreement contains many elements of a sensitive competitive nature. The Agreement includes not only the amount requested by CBC for participating in and broadcasting events such as the shows, but also the manner in which its services are delivered, and the type of incentives provided such as a sponsorship package.

8. I believe that the disclosure of the Agreement would be harmful the CBC's competitive position as it would disclose all those elements referred to in Paragraph 7 of this my affidavit and permit competitors of CBC to incorporate those items in any competing proposal to N.C.C. The release of the following Articles of the contract, in particular, could reasonably be expected to prejudice the CBC: Article 2.03(d), Article 3.01(a), Article 4 and particularly 4.05, Schedule B.

9. I believe that the disclosure of the Agreement could also interfere with CBC's contractual or other negotiations. The release of sponsorship information could reasonably be expected to interfere with other sponsorship negotiations. The release of the contract price per year, and the method by which CBC delivers its services could also be expected to interfere with contractual negotiations involving similar projects. The release of the following Articles of the contract, in particular, could reasonably be expected to interfere with CBC's contractual or other negotiations: Article 2.03(d), Article 3.01(a), Article 4 and particularly 4.05, Schedule B.

[27]       After a careful reading of these paragraphs, I cannot come to any other conclusion than that what Ms. Marshall is doing is making certain confirmations without giving any evidence that there is a reasonable expectation of probable harm to the applicant if the information requested is divulged.

[28]       It is also not enough to merely speculate that the applicant may suffer some probable harm if the requested information is made public.

[29]       In Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 at pages 682-3 (F.C.T.D.), the court held that paragraph 20(1)(d) of the Act requires proof of a reasonable expectation that actual contractual negotiations other than the daily business operations of the applicant will be obstructed by disclosure. Evidence of the possible effect of disclosure on other contracts generally and hypothetical problems were held to be insufficient to qualify under the exemption. Similar reasons were provided in SociétéGamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.) where the court stated that paragraph 20(1)(d) must refer to an obstruction to negotiations rather than merely the heightening of competition which might flow from disclosure. Finally, in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.), the court stated at page 91 that mere speculation or possibility is insufficient to ground an exemption under paragraph 20(1)(d). Given the lack of evidence about the effect on actual contractual negotiations, I have no difficulty finding that the applicant has failed to satisfy paragraph 20(1)(d) of the Act.

[30]       With regard to the applicant's submission that because the parties to the Agreement incorporated into the Agreement article 7.14, it was considered by the respondent that the terms and conditions of the Agreement were to be confidential.

[31]       The above may be exact insofar as the parties to the Agreement are concerned. This article in the Agreement cannot prevent a Court from granting access to the terms of an Agreement if the granting of the access does not contravene paragraphs 20(1)(c) and (d) of the Act. It may affect the relationship of the contracting parties but not any third party making an access request pursuant to the law.

CONCLUSION

[32]       I am satisfied the applicant has failed to satisfy the requirements of paragraphs 20(1)(c) and 20(1)(d) of the Act in order to exempt the disclosure of the Agreement or any portion thereof. The applicant has not filed firm tangible evidence of probable harm but merely evidence of affirmation and speculation.

[33]       The application is denied with costs in favour of the respondent.

"Max M. Teitelbaum"

                                                                                                                                                J.F.C.C.

OTTAWA, ONTARIO

May 19, 1998

FEDERAL COURT OF CANADA NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO. : T-2200-97

STYLE OF CAUSE : CANADIAN BROADCASTING CORPORATION v. NATIONAL CAPITAL COMMI

PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: MAY 11, 1998 REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE TEITELBAUM

DATED: MAY 19, 1998

APPEARANCES:

J. DAVID POWER                       FOR THE APPLICANT

CHRISTOPHER RUPAR                    FOR THE RESPONDENT

SOLICITORS OF RECORD

CANADIAN BROADCASTING CORPORATION    FOR THE APPLICANT      OTTAWA, ONTARIO

GEORGE THOMSON                       FOR THE RESPONDENT      DEPUTY ATTORNEY GENERAL