Canada Post Corp. v. Canada (Minister of Transport), 2005 FC 458

Date: 20050406

Docket: T-535-04

Citation: 2005 FC 458

BETWEEN:

                                                 CANADA POST CORPORATION

                                                                                                                                            Applicant

                                                                           and

                                                THE MINISTER OF TRANSPORT

                                                                                                                                        Respondent

                                                                                                                                             T-568-04

BETWEEN:

                                                 CANADA POST CORPORATION

                                                                                                                                            Applicant

                                                                           and

                                                THE MINISTER OF TRANSPORT

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

MacKAY D.J.:

General Background

[1]                These are two applications pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act") concerning decisions of the Access to Information and Privacy Division of Transport Canada, dated respectively February 19, 2004 and February 24, 2004. These decisions advised the applicant Canada Post Corporation ("CPC") that certain documents requested by an unidentified requestor, which contained information relating to CPC, would be released despite the applicant's objections, under the Act.

[2]                The two applications were heard together. Though they concern different decisions and different documents, similar arguments are raised, with exemptions from release claimed under section 20 of the Act. I propose to treat the issues raised as though this were one application, while identifying the documents in question by the court file number in which the issues arise.

[3]                When the applications were heard, counsel for both parties agreed that the Court need not consider one of the grounds on which both applications are based, that is, that the documents in question were under control of the Minister responsible for CPC, the holder of an office created by the Canada Post Corporation Act, an act and a corporation not subject to the application of the Access to Information Act. That same ground was raised in other proceedings, that is, in court files A-58-04 and A-59-04 in which appeals were brought by the applicant in the Court of Appeal. Only one of those appeals, in file A-58-04, was dealt with by the Court of Appeal, which dismissed the argument and appeal by CPC, holding that the documents in question from sources comparable to those in these applications, i.e., to the office of the Minister from staff responsible to him, not from Canada Post, were not exempt from disclosure under the Act. On November 5, 2004, CPC applied for leave to appeal that decision to the Supreme Court of Canada. The parties were agreed that the outcome of the leave application, or of the appeal if leave were to be granted, would effectively dispose of the similar issue raised in the two cases here considered. I note that leave was denied on that application by the Supreme Court on March 18, 2005, so there is no basis for this Court to delay release of the information if these applications are not allowed.

[4]                Thus,I do not consider that issue now dealt with by denial of leave to appeal to the Supreme Court. I do note that the context of these two applications is partially explicable as a result of the special statutory position of CPC and its affiliated companies, by which information held by them is excluded from the application of the Act. That position, it is urged, is based upon the unique combination of the monopoly for letter carrier and delivery service and of commercial services, competing with firms in the private sector, all under a commercial operating system intended to pay the expenses incurred for services provided. That context is not relevant to interpretation of the Act in the circumstances of this case.

The issue

[5]                For purposes of these applications I consider only whether, if the Act does apply to the documents in question any of them are exempt from release to the requestor in light of the provisions of section 20.

The legislation and jurisprudence

[6]                Subsection 20(1) of the Act provides:

[7]                In essence, the argument of CPC in relation to the various documents it seeks to be exempted from disclosure under subsection 20(1) is that the documents contain commercial, confidential information provided between senior officers responsible for operations of CPC and its subsidiaries. Release of that information it is urged would cause severe harm to the applicant.

[8]                Jurisprudence dealing with the Act and with the relevant provisions of subsection 20(1) has made the following principles clear.

            (i)         The purpose of the Act, as provided in subsection 2(1), of significance in its application, is to provide a right of access to information contained in government records, a right to be denied only in clear circumstances falling within the exceptions specified in the Act, and the burden of persuasion rests on the party seeking to restrict disclosure. (Canada Packers Inc. v. Canada (Minister of Agriculture) et al, [1989] 1 F.C. 47 at 60 (C.A.); Maislin Industries Limited v. Minister for Industry Trade and Commerce, [1984] 1 F.C. 939 (T.D.)).

            (ii)        That burden includes establishing by evidence on a balance of probabilities that disclosure is exempt under the Act. (Maislin Industries, supra; Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 at 441 (T.D.)).

(iii)      The information claimed exempt under paragraph 20(1)(b), in this case, must be financial or commercial, it must be confidential and consistently so treated by the government and by the third party that supplies it (Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.)).

            (iv)       Disclosure of the information in question must be shown by evidence, not mere speculation, to give rise to "a reasonable expectation of harm" on a balance of probabilities. (Canada Packers Inc. v. Minister of Agriculture et al, supra, Tridel Corporation v. Canada Mortgage and Housing Corp. (1996), 115 F.T.R. 185 (T.D.)).

            (v)        Disclosure of the information in question, if it is to be exempt under paragraph 20(1)(d), must be based on proof of a reasonable expectation of obstruction to contractual negotiations. Mere speculation or possibility of likely damage to the party objecting to disclosure is not sufficient for exemption from access. Saint John Ship Building v. Canada (Minister of Supply and Services) (1990) 67 D.L.R. (4^th) 315 (F.C.A.).

The documents in question and exemptions claimed

[9]                I turn to the documents here in question and assess whether, in light of the principles set out by the Act and its jurisprudence, the documents qualify for the exemptions claimed under section 20 of the Act. For purposes of this decision I describe the documents as A, B, C, D, E, in general terms only, with a view to maintaining at this stage the confidential status claimed by CPC for the information.

Document A

[10]            The only document in issue in file T-535-04 at the time of the hearing is a letter (3 pages) dated August 9, 2002, (see: application record, CPC , vol. 2 - confidential, pp. 13-15), from the President and Chief Executive Officer of CPC to the Minister of Transport, then recently appointed as Minister responsible for CPC, not classified except that "Confidential" is handwritten at the top of page 1. The letter provides a preliminary briefing of the views of the Senior Officer of CPC, on challenges facing the corporation in view of changing technologies, its responsibilities for rural mail delivery, for litigation in which it is involved and for partnerships with its subsidiaries and with other third parties to meet with these challenges.

[11]            By affidavit in support of the applicant's claimed exemption, the General Manager, Regulatory Affairs of CPC speaks to potential harm anticipated from disclosure of the information included in the letter in question. Yet she does this in purely speculative terms, that release of the information would be shocking to the public, causing tremendous worry over the future of the corporation and hugely damage its business partners, its unions and employees and the public. While it is said that if the Act applies, release of the information in this letter would cause tremendous harm to CPC's commercial interests and competitive position, in my view, the opinion expressed in the affidavit about the harm foreseen does not establish a reasonable expectation of harm, as required to qualify under paragraph 20(1)(b) Canada Packers, supra, and Tridel Corporation, supra. There is, moreover, no evidence that the information was consistently treated as confidential by CPC and by the Government of Canada.

[12]            I conclude that the letter in issue does not qualify for exemption from disclosure under paragraphs 20(1)(b) or 20(1)(c), as claimed by CPC.

Document B (see application record CPC - vol. 2 - confidential, pp. 58-60)

[13]            This document, a three page memorandum, at issue in file T-568-04, marked "secret" at page 1, was written probably in July 2002 from the Assistant Deputy Minister to the Deputy Minister within Infrastructure and Crown Corporations of Canada, and concerns proposed arrangements between CPC and Amazon.ca. It includes information on the background to the proposal, possible concerns of potential competitors, and a preliminary view of the application of the Investment Canada Act to the anticipated operations of Amazon.ca.

Document C    (see application record CPC - vol. 2 - confidential, pp. 61-64)

[14]            this document, undated, without its own confidentiality classification noted, is a briefing note, prepared apparently by CPC and attached to document B, above. It concerns generally, arrangements proposed for cooperation between CPC and Amazon.ca, the expected benefits or advantages of this, and the objectives and key considerations of the proposed arrangements.

Document D    (see application record, CPC - vol. 2 - confidential, pp. 95-100)

[15]            This document, undated, marked "secret" at page 1, is a two page memorandum to the Deputy Prime Minister [then the Minister responsible for CPC] from the Deputy Minister, Office of Infrastructure and Crown Corporations of Canada, concerning a proposed signing ceremony for a Memorandum of Understanding between the Government of Canada and the Government of another country, and a copy of the proposed Memorandum of Understanding (from CPC May 14, 2002), two pages, not separately assigned a security classification.

Document E     (see application record, CPC - vol. 2 - confidential, pp. 101-103, and 107-108)

[16]            This document, undated, classified "secret" at page 1, consists of a three page Memorandum for the Deputy Prime Minister from the Deputy Minister, Office of Infrastructure and Crown Corporations of Canada, (on letterhead of Government of Canada, Privy Council Office) concerns Proposed Memorandum of Understanding between the Government of Canada and the Government of another country, recommending support of the proposal; and a two page briefing note on that country and the proposed Memorandum of Understanding prepared by Canada Post International Ltd. (a subsidiary of CPC).

[17]            These documents are said to be exempt from disclosure as commercial, confidential documents, treated by CPC as confidential documents even if not all labelled so (under paragraph 20(1)(b)). Their release, it is urged would cause serious loss to CPC or adversely affect its competitive position (under paragraph 20(1)(c)) and some documents are said to be exempt (under paragraph 20(1)(d)) because their disclosure might interfere with contractual or other negotiations of CPC, a third party.

[18]            Having examined the documents in question and the affidavit in support of the submissions by CPC, my conclusions are that these are not confidential documents except as some may bear a confidential classification, those that do bear such a classification are not in their nature confidential in the ordinary sense even if CPC considers them so for its purposes. Those that might qualify as confidential in CPC's view, in the sense that they concern operations of the Corporation, are generally descriptive, with any specific commercial information redacted by the responsible officers of Transport Canada. Four of the documents can be considered to have been supplied to government by a third party, CPC; those that have been supplied by CPC are not established, by the affidavit evidence, to be likely, if released, to result in material financial loss or gain to CPC, or to be reasonably be expected to prejudice its competitive position or to interfere with its contractual or other negotiations.

[19]            In sum, I am not persuaded that the evidence in support of the application in court file T-568-04 establishes that any of the documents in question qualifies for exemption from release under the terms or paragraphs 20(1)(b), (c) or (d) of the Act.

General submissions

[20]            Two general submissions were urged in support of CPC's submissions. The first is that because of its unique role, with both public service and competitive commercial services, costs of which are largely borne from returns by customers, it continues to have a responsibility to inform and account to a Minister concerning its ongoing operations and its future plans. It is urged that because of its role and its special responsibilities, parliament exempted CPC from the application of the Act, and CPC itself maintains its own communications, even with its Minister, as confidential, except for planned public announcements. Here that practice is said to warrant deference from the Court particularly since the information in question is of the sort exchanged only at the highest levels of CPC.

[21]            The second general submission is that the Court should exempt the information in question from disclosure, recognizing that position of CPC and its practice, in a manner analogous to that accorded to security intelligence information, based on acceptance of the probability that competitors of CPC could gain commercial information about the corporation, in a manner unforeseen, by reason of the mosaic effect of piecing together bits of information that may at first glance appear unrelated. CPC relies, by way of analogy, upon the decision of Mr. Justice Addy in Re Henrie and Security Intelligence Review Committee et al, (1988) 53 D.L.R. (4^th) 568 (F.C.T.D.). In that case, however, the Court was concerned with provisions of the Canada Evidence Act and the C.S.I.S. Act which specifically authorized non-disclosure of security information. In my view, those circumstances concerning national security are not comparable to any commercial interests at stake in this case.

[22]            Neither of the general submissions, helpful as they may be in explaining the significance of its operations as seen by senior responsible officers of CPC, supports a conclusion that the information here in question, in any case, meets the terms of subsection 20(1) of the Act for exemption from disclosure. The general purpose section 2 and the principle of the Act is that information held by government be disclosed, unless it be specifically exempt under the Act itself, as it is narrowly construed. In my opinion, the basis for exemption from disclosure is not here established.

Conclusions

[23]            For the reasons set out above, I conclude that the applicant, CPC, has not met the burden of establishing that any of the information in the documents in question should be exempt from disclosure under subsection 20(1) of the Act. Orders issue, one in each of the court files here dealt with, dismissing the applications under section 44 of the Act for review of the decisions that the information in question be released.

[24]            The Orders also provide that costs of these applications shall go, as requested, to the respondent Minister, for preparation of two application records but for hearings in relation to one, since both applications, raising essentially similar issues, were dealt with as one. The original of these reasons, with the relevant Order shall be filed on court file T-568-04, and a copy of the reasons with the relevant Order shall be filed on court file T-535-04.

                                                                                                                       "W. Andrew MacKay"

Deputy Judge

Ottawa, Ontario

April 6, 2005.

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-535-04 and T-568-04

STYLE OF CAUSE:                          Canada Post Corporation

and

The Minister of Transport

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      December 6, 2004

REASONS FOR ORDER

AND ORDER OF                            The Honourable Mr. Justice W. Andrew MacKay

DATED:                                             April 6, 2005

APPEARANCES:

Mr. Ronald D. Lunau and

Ms. Catherine Beaudoin                                                            FOR THE APPLICANT

Mr. Christopher Rupar                                                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Gowling Lafleur Henderson LLP

Ottawa, Ontario                                                                        FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada     FOR THE RESPONDENT