Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services), 2003 FCT 254

Date: 20030228

Docket: T-2337-00

Neutral citation: 2003 FCT 254

BETWEEN:

                                     BROOKFIELD LEPAGE JOHNSON CONTROLS

                                              FACILITY MANAGEMENT SERVICES,

                                                                                                                                                      Applicant,

                                                                              - and -

                                           THE MINISTER OF PUBLIC WORKS AND

                                               GOVERNMENT SERVICES CANADA,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Brookfield Lepage Johnson Controls Facility Management Services (BLJC), the applicant, brings this application for review pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act) with respect to a decision of the Minister of Public Works and Government Services Canada (the Minister) dated November 28, 2000.

[2]                 The Minister's decision is in relation to the disclosure of certain documents requested under the Act. BLJC seeks an order prohibiting the Minister from disclosing the records in issue and costs of its application. Further to an order of the Federal Court of Canada dated February 15, 2001, all documents filed in the proceeding were treated as confidential and the hearing was conducted in camera. The requesting party did not take part in the proceeding.

[3]                 BLJC provides professional facility management services to property owners and tenants across Canada. On July 8, 1997, the respondent issued a request for proposals for the management of its properties in eastern Quebec and also issued twelve other requests for proposals relating to management of its properties in other parts of Canada. In colloquial terms, the respondent called for "privatization" proposals. BLJC prepared and submitted bids for each of the competitions and was the successful bidder in all thirteen procurements.

[4]                 In October, 1999, the respondent received a request under the Act for documents regarding the procurements for two of the thirteen portfolios. The request was subsequently clarified and amended to require specific portions of the portfolios. After reviewing the records responsive to the request, the respondent determined that the records contained "third party" information relevant to BLJC.

[5]                 By letter dated December 17, 1999, in accordance with section 27 of the Act, the applicant was notified of the request and of the respondent's identification of the relevant records. BLJC was informed that it was entitled to make representations in justification of the application of section 20 of the Act. The applicant, by letter dated January 10, 2000, responded with assertions that disclosure should be prohibited because the requested documents were exempt by virtue of subsection 20(1) of the Act. Upon review of the applicant's submissions, the respondent determined that there existed insufficient justification to prevent disclosure of the records. By letter dated November 28, 2000, BLJC was informed of the respondent's intention to disclose the requested records with specific portions and pages deleted. BLJC initiated this application for review of the Minister's decision on December 15, 2000.

[6]                 The applicant relies exclusively on the provisions of subsection 20(1) of the Act, which read as follows:

[7]                 Although the applicant's written submission included argument in relation to paragraph 20(1)(d), that submission was abandoned at the hearing. There are two things worthy of mention at the outset. First, the records identified by the respondent as responsive to the request comprised some 170 pages. After consideration of the applicant's representations, the records were redacted and reduced to approximately 70 pages with some further deletions within those pages. Second, when the respondent called for proposals, bidders were requested to specify any information considered to be proprietary and therefore not subject to disclosure without consent, or use by government for any reason other than evaluation of the proposal. In submitting its bid, the applicant's title page contained a statement to the effect that the information contained in the document "is proprietary" to BLJC and that use or disclosure, except for purposes of evaluation of the proposal, "is prohibited" without the written permission of BLJC. Each page of the proposal included the following statement:

Proprietary Data - Use or disclosure of proposal data is subject to the restrictions on the title page of this proposal.

[8]                 A review of a decision under section 44 is de novo and includes, if necessary, a review of the documents in issue: Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R.194 (Air Atonabee). Before turning to the specific arguments of BLJC, it is useful to review the basic principles applicable to this particular legislation.

[9]                 The purpose of the Act is to provide the public with a right of access to information contained in the records of the government. Exceptions to the right of access should be limited and specific: Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) (Canada Packers); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (Dagg). Public access ought not to be frustrated by the courts except in the clearest of circumstances. It is a heavy burden of persuasion that rests upon the party resisting disclosure: Maislin Industries Limited v. Minister of Industry Trade and Commerce, [1984] 1 F.C. 939 (T.D.) (Maislin); Rubin v. Canada (Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) (Rubin); Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.). The standard of proof to be applied is that of a balance of probabilities: Northern Cruiser Co. v. Canada (1995), 99 F.T.R. 320n. (F.C.A.) (Northern Cruiser).

[10]            The applicant argues that its unique formula for responding to requests for proposals regarding property management is a trade secret as provided in paragraph 20(1)(a). The submission is that a trade secret does not have to be something of a scientific or technical nature but can include art, craft, rhetorical design and flavour. There exists a distinction, BLJC submits, between confidential information and trade secrets. A trade secret would include information that is not confidential, but is nonetheless worthy of protection because of the circumstances of its presentation. To the extent that the records in issue are not confidential, they are a trade secret by virtue of presentation.

[11]            I am not persuaded by this submission. After exclusion of the alleged confidential information, there remain but a few paragraphs in the redacted records that, according to the applicant, constitute a trade secret. While counsel's attempts to characterize the "rhetorical presentation" as a trade secret were valiant, they were unconvincing. The "presentation" referred to and relied upon is no more than what one would expect of any individual attempting to secure employment, a contract, placement in a specific program at an educational institution and so on. The "technique" consists of nothing more than the age-old skill of putting the punch in the first paragraph and creating a positive first (and hopefully lasting) impression. This is not, by any definition, a trade secret.

[12]            BLJC also alleges that the redacted records are comprised of confidential financial and commercial information. In this respect, it submits that the information contained in the records concerns its human resources policies and the various benefits it provides to its employees and as such is commercial information. Moreover, the information is not otherwise accessible to the public, it was communicated in a reasonable expectation that it would not be disclosed and it was communicated in a relationship between the government institution and the third party that is not contrary to the public interest. The applicant relies heavily on the fact that the information was communicated in response to an undertaking of confidentiality. Significance is also attributed to the records being labelled as confidential and the fact that the information has been consistently treated as confidential by BLJC. Lastly, the applicant alleges that there is a public interest in maintaining confidentiality over information conveyed to government as part of a competitive procurement process because it encourages bidders to submit detailed and complete bids.

[13]            In Air Atonabee, MacKay J. reviews the authorities with respect to confidentiality and concludes that:

. . . [W]hether the 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.

[14]            Here, the respondent concedes that the information in the records was provided by the third party and that it has consistently treated the records as confidential. It is with the remaining two requirements of the test that the respondent takes issue.

[15]            While I am sympathetic to the respondent's position relative to whether the records in issue are of a commercial nature, and I confess to having reservations in that regard, I am prepared to assume, for purposes of this analysis, that the records are commercial. But are they confidential?

[16]            The answer to that question must be established objectively: Société Gamma Inc. v. Canada (Secretary of State) (1994), 79 F.T.R. 42 (T.D.) (Société Gamma); Maislin; Air Atonabee. The fact that the information has, to date, been kept confidential, is merely one aspect of the test. While there exists some inconsistency in the caselaw as to whether an express undertaking of confidentiality by government is determinative, the weight of judicial authority is to the effect that it is not possible to contract out of the Act: Société Gamma; Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 264 (Canadian Broadcasting); St. Joseph Corporation v. Canada (Public Works and Government Services) (2002), 218 F.T.R. 41 (St. Joseph); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.) (Ottawa Football); Canada (Information Commissioner) v. Atlantic Canada Opportunities Agency (1999), 250 N.R. 314 (F.C.A.).

[17]            In the final analysis, while confidentiality agreements may be taken into account, they cannot override or trump the express statutory provisions of the Act. I rely on the following excerpt from Ottawa Football in this regard and adopt the comments in their entirety:

[I]t is not enough to state that their submission is confidential in order to make it so in an objective sense. Such a principle would surely undermine much of the purpose of this Act which in part is to make available to the public the information upon which government action is taken or refused. Nor would it be consistent with that purpose if a Minister or his officials were able to exempt information from disclosure simply by agreeing when it is submitted that it would be treated as confidential.

[18]            The applicant, here, was invited to delineate that portion of its proposal that it considered to be proprietary. Its response was to characterize each page in that manner. Such an approach dilutes the substance of the applicant's position and militates against a finding of confidentiality in the objective sense. Of even greater significance, in my view, are the following comments of Strayer J., as he then was, in Société Gamma:

General information about the applicant and the nature and quality of its work not otherwise exempted appears to me to be of a nature not inherently confidential. One must keep in mind that these proposals are put together for the purpose of obtaining a government contract, with payment to come from public funds. While there may be much to be said for proposals or tenders being treated as confidential until a contract is granted, once the contract is either granted or withheld there would not, except in special cases, appear to be a need for keeping tenders secret. In other words, when a would-be contractor sets out to win a government contract he should not expect that the terms upon which he is prepared to contract, including the capacities his firm brings to the task, are to be kept fully insulated from the disclosure obligations of the Government of Canada as part of its accountability. The onus as has been well established is always on the person claiming an exemption from disclosure to show that the material in question comes within one of the criteria of s. 20(1) and I do not think that the claimant here has adequately demonstrated that, tested objectively, this material is of a confidential nature. I accept that the applicant and, up to now, the respondent, have treated this material as confidential but that is only one part of the test prescribed in s.20(1)(b) for confidentiality.

[19]            I conclude that the redacted records that remain in dispute cannot be regarded, on an objective standard, as confidential. After a detailed and cautious review of the material, I find that it consists of generic and general information. I also find, in accordance with the reasoning of MacKay J. in Promaxis Systems Inc. v. Canada (Minister of Public Works and Government Services) (2002), 21 C.P.R. (4^th) 204 (F.C.T.D.) that, for reasons of public policy, the information is not confidential information within the meaning of paragraph 20(1)(b), however it may have been treated and considered by BLJC.

[20]            The applicant's final argument is that disclosure should be prohibited on the basis of paragraph 20(1)(c) of the Act. In this respect BLJC, relying on Bitove Corp. v. Canada (Minister of Transport) (1996), 119 F.T.R. 278, submits that there exists a reasonable expectation of harm to its competitive position if the records are disclosed because: there would be a marked decline in business if competitors obtained the confidential information in the records; competitors would be able to copy the applicant's approach to a bid at no cost with the result of financial loss to the applicant and financial gain to the competitor; the applicant's competitive position in future requests for proposals would be prejudiced if competitors were able to duplicate its approach and, the applicant's approach to bids is unique and involves alternative forms of service delivery. Additionally, BLJC argues that disclosure would interfere with contractual and other negotiations because there will be additional requests for proposals in the future that will involve privatization as a central issue.

[21]            The test for the application of the exemption in paragraph 20(1)(c) is that of reasonable expectation of probable harm: Canada Packers; Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.). An applicant cannot demonstrate a reasonable expectation of probable harm from disclosure simply by attesting in an affidavit that such a result will occur if the records are released. Further evidence that establishes that those outcomes are reasonably probable is required: SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113; Canadian Broadcasting.

[22]            I have carefully reviewed the evidence, including the supplementary affidavit, and conclude that, aside from general statements of possible harm, BLJC has failed to provide evidence that there exists a reasonable expectation of probable harm if the records in question are released. Specifically, the applicant's statements regarding prejudice that may occur are of a general nature and fail to provide insight as to how the competitors might use the record so that the applicant will sustain a reasonable expectation of probable harm. At its highest, it can only be said that the competitive position of the applicant will be prejudiced. There exists, here, insufficient evidence to conclude that there is a basis to establish financial loss or prejudice to BLJC, or financial gain to a competitor.

[23]            For the reasons provided, the application is dismissed and an order shall so provide. The respondent has been successful and will therefore have costs.

        < < Carolyn Layden-Stevenson > >             

Judge

Fredericton, New Brunswick

February 28, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2337-00

STYLE OF CAUSE: BROOKFIELD LEPAGE JOHNSON CONTROLS                                                                                   FACILITY MANAGEMENT SERVICES

v. THE MINISTER OF PUBLIC WORKS

AND GOVERNMENT SERVICES CANADA

PLACE OF HEARING:                                   OTTAWA

DATE OF HEARING:                                     FEBRUARY 19, 2003

REASONS FOR ORDER BY:                       THE HON. MADAM JUSTICE LAYDEN-STEVENSON

DATED:                      FEBRUARY 28, 2003

APPEARANCES:

MR. GORDON CAMERON                                        FOR APPLICANT

MR. CHRISTOPHER RUPAR                                       FOR RESPONDENT

SOLICITORS OF RECORD:

BLAKE, CASSELS & GRAYDON LLP         FOR APPLICANT

Ottawa, Ontario

MORRIS ROSENBERG                                                 FOR RESPONDENT

Deputy Attorney General of Canada