[1] This proceeding by Canada Post Corporation ("CPC") is parallel to the one it launched in T-2117-00, reasons for which are also being released today.

[2] This proceeding involves a review initiated under section 44 of the Access to Information Act (the "Act") of proposed disclosures pursuant to two requests directed to the Access to Information and Privacy Office ("ATIP") in the Department of Public Works and Government Services ("Public Works").

[3] The review sought here is from a September 29, 2000 decision by the Access to Information Coordinator (the "Access Coordinator") in Public Works to release five documents following an August 26, 1999 request by an undisclosed requestor (file no. 1999-0373) and to release one of the five documents pursuant to a May 2, 2000 request made by Chris Champion (file no. 2000-0091).

[4] In this case, CPC raises three issues, two of which are the same as argued in T-2117-00 namely:

(1) the documents proposed for release are not within the control of Public Works but under the control of the Minister responsible for CPC, said to be a government institution, an office, not listed under Schedule I of the Act; and

(2) the failure of the Access Coordinator to give reasons for rejecting CPC's objections to release.

[5] Those two issues have been dealt with in my reasons related to T-2117 where Canada Post's arguments have not been accepted.

[6] The additional ground raised here is that the Access Coordinator failed to give CPC the required third party notices of the two requests under section 27 of the Act. These reasons relate to that issue.

[7] To simplify matters, the parties agree:

(1) The Access Coordinator's April 14, 2000 notice letter to CPC advising it of the August 26, 1999 request mistakenly identified the wording of the request. However, five documents said to be relevant to the request were actually appended to the notice. In addition, this letter mistakenly referred to an older request for access file number 1998-0529. The letter should have referred to request 1999-0373;

(2) The correct wording for request 1999-0373 was never disclosed to CPC in any section 27 notice before a decision was made to release the five documents; and

(3) No section 27 notice was issued to CPC in respect of the access request 2000-0091.

[8] When Canada Post received the April 14, 2000 letter which invited submissions, it replied on May 4, 2000, to the Access Coordinator noting the confusion about the request. It said:

We have been advised that there appeared to have been some sort of misunderstanding and that the documents in question are not related to the request specified in your letter.

Although we understand that the issue is in the process of being clarified, we write to you today to protect our right to make the required submissions at the appropriate time, and regarding the relevant documentation. [emphasis mine]

[9] With that caveat, CPC made brief submissions as to why the information contained in the five documents identified should not be disclosed. CPC wrote:

i) It is confidential information contained in documents belonging to Canada Post, which are either in the hands of the Minister responsible for Canada Post or with those of his agents selected to assist the Minister in fulfilling his role as Minister Responsible for Canada Post.

ii) The information contained in the documents is highly sensitive commercial information that is of a confidential and proprietary nature, and is thereby exempt under section 20 of the Act.

iii) The documents were released to assist the Minister, Treasury Board and the Department of Finance in advising Cabinet on matters relating to Canada Post. In other words, the documents enjoy Cabinet confidence.

[10] On August 13, 2000, a meeting was held between representatives of the ATIP Office at Public Works and Canada Post to discuss Canada Post's position on the application of section 20 of the Act in respect of the five documents proposed for release. At the time of this meeting, CPC was still unaware of the actual wording of the request dated August 26, 1999 and was not aware of the May 2, 2000 request (file no. 2000-091).

[11] On September 29, 2000, the Access Coordinator advised CPC the five documents which it had listed in its April 14, 2000 letter to Canada Post would be disclosed in part with other parts severed on account of confidentiality. This September 29, 2000 letter referenced three ATIP office file numbers namely, 1998-0529, 1999-0373 and 2000-091.

[12] On October 6, 2000, the Assistant General Counsel for CPC wrote to the ATIP office noting the three file references in their September 29^th letter, advising it CPC had only been given notice on April 14, 2000 of a specified request under 1998-0529 and that CPC had not received notice under section 27 relating to requests 1999-0373 and 2000-0091.

[13] By letter dated October 13, 2000, the ATIP office replied to CPC's letter dismissing its objections. The ATIP office took the position that notice had properly been given under the Act and the draft supplementary report to the Minister responsible for Canada Post had been determined to be relevant only to request 2000-0091 of which CPC had not received notice but which it had an opportunity to comment on because it was one of the five documents discussed for release in the August 26, 1999 request.

[14] Sections 27 and 28 of the Act in part read:

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.

27(2) Waiver of notice

(2) Any third party to whom a notice is required to be given under subsection (1) in respect of an intended disclosure may waive the requirement, and where the third party has consented to the disclosure the third party shall be deemed to have waived the requirement.

27(3) Contents of notice

(3) A notice given under subsection (1) shall include

(a) a statement that the head of the government institution giving the notice intends to release a record or a part thereof that might contain material or information described in subsection (1);

(b) a description of the contents of the record or part thereof that, as the case may be, belong to, were supplied by or relate to the third party to whom the notice is given; and

(c) a statement that the third party may, within twenty days after the notice is given, make representations to the head of the government institution that has control of the record as to why the record or part thereof should not be disclosed.

. . .

28(1) Representations of third party and decision

28. (1) Where a notice is given by the head of a government institution under subsection 27(1) to a third party in respect of a record or a part thereof,

(a) the third party shall, within twenty days after the notice is given, be given the opportunity to make representations to the head of the institution as to why the record or the part thereof should not be disclosed; and

(b) the head of the institution shall, within thirty days after the notice is given, if the third party has been given an opportunity to make representations under paragraph (a), make a decision as to whether or not to disclose the record or the part thereof and give written notice of the decision to the third party.

. . .

28(3) Contents of notice of decision to disclose

(3) A notice given under paragraph (1)(b) of a decision to disclose a record requested under this Act or a part thereof shall include

(a) a statement that the third party to whom the notice is given is entitled to request a review of the decision under section 44 within twenty days after the notice is given; and

(b) a statement that the person who requested access to the record will be given access thereto or to the part thereof unless, within twenty days after the notice is given, a review of the decision is requested under section 44.

28(4) Disclosure of record

(4) Where, pursuant to paragraph (1)(b), the head of a government institution decides to disclose a record requested under this Act or a part thereof, the head of the institution shall give the person who made the request access to the record or the part thereof forthwith on completion of twenty days after a notice is given under that paragraph, unless a review of the decision is requested under section 44.

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.

27(2) Renonciation à l'avis

(2) Le tiers peut renoncer à l'avis prévu au paragraphe (1) et tout consentement à la communication du document vaut renonciation à l'avis.

27(3) Contenu de l'avis

(3) L'avis prévu au paragraphe (1) doit contenir les éléments suivants_:

a) la mention de l'intention du responsable de l'institution fédérale de donner communication totale ou partielle du document susceptible de contenir les secrets ou les renseignements visés au paragraphe (1);

b) la désignation du contenu total ou partiel du document qui, selon le cas, appartient au tiers, a été fourni par lui ou le concerne;

c) la mention du droit du tiers de présenter au responsable de l'institution fédérale de qui relève le document ses observations quant aux raisons qui justifieraient un refus de communication totale ou partielle, dans les vingt jours suivant la transmission de l'avis.

. . .

28(1) Observations des tiers et décision

28. (1) Dans les cas où il a donné avis au tiers conformément au paragraphe 27(1), le responsable d'une institution fédérale est tenu_:

a) de donner au tiers la possibilité de lui présenter, dans les vingt jours suivant la transmission de l'avis, des observations sur les raisons qui justifieraient un refus de communication totale ou partielle du document;

b) de prendre dans les trente jours suivant la transmission de l'avis, pourvu qu'il ait donné au tiers la possibilité de présenter des observations conformément à l'alinéa a), une décision quant à la communication totale ou partielle du document et de donner avis de sa décision au tiers.

. . .

28(3) Contenu de l'avis de la décision de donner communication

(3) L'avis d'une décision de donner communication totale ou partielle d'un document conformément à l'alinéa (1)b) doit contenir les éléments suivants_:

a) la mention du droit du tiers d'exercer un recours en révision en vertu de l'article 44, dans les vingt jours suivant la transmission de l'avis;

b) la mention qu'à défaut de l'exercice du recours en révision dans ce délai, la personne qui a fait la demande recevra communication totale ou partielle du document.

28(4) Communication du document

(4) Dans les cas où il décide, en vertu de l'alinéa (1)b), de donner communication totale ou partielle du document à la personne qui en a fait la demande, le responsable de l'institution fédérale donne suite à sa décision dès l'expiration des vingt jours suivant la transmission de l'avis prévu à cet alinéa, sauf si un recours en révision a été exercé en vertu de l'article 44.

[15] There can be no doubt the manner Public Works handled the two requests caused the Act to be breached and counsel for the respondent conceded as much.

[16] In my view, counsel for Canada Post is correct in submitting that:

(1) the notice provided CPC by Public Works on April 14, 2000, was defective since the text of the request provided was completely wrong;

(2) the statutory time limit for the issuance of the April 14, 2000 notice was not respected; and

(3) no notice was provided to CPC for the May 2, 2000 request.

[17] Nevertheless, CPC's application for review under section 44 of the Act should be dismissed without costs because CPC suffered no harm and to allow the appeal would only cause the filing of second requests with timely and full compliance. As stated by Justice Stone in Cyanamid Canada Inc. v. Minister of National Health & Welfare (1992), 45 C.P.R. (3d) 390 (F.C.A.) "this would not promote the main object" of sections 27 and 28 of the Act.

[18] Attached to the April 14, 2000 notice to CPC were copies of the five documents proposed for release with the fifth document being the draft supplementary report issued by TD Securities on April 17, 1997, the only document relevant to the May 2, 2000 request of which CPC had no notice.

[19] While noting some confusion, CPC made representations to Public Works, however brief, objecting to the disclosure of the five documents. More important, however, is the fact representatives of the ATIP office at Public Works met with representatives of Canada Post on August 13, 2000, to discuss CPC's position. At that meeting, it is acknowledged CPC officials had the five documents with them.

[20] It is true, as stated by counsel to CPC, the breach by Public Works did not enable CPC to comment that the documents proposed for release did not fall within the scope of the requests. However, CPC did not seriously contend before me this was the case. It should not be forgotten a section 44 review by this Court is a review de novo.

[21] The result in this review is as expressed by Justice McKeown in Pride Beverages Ltd. v. Canada (Minister of Agriculture), [1996] F.C.J. No. 720, where he concluded: "I am meeting the objective of the Act, which is to balance the requestor's right to access to information with the third party's right to protect sensitive information from disclosure by allowing the third party the option to establish that the information is protected under the Act from disclosure".

[22] For these reasons, this section 44 review is dismissed without costs.

« François Lemieux »

J U D G E

OTTAWA, ONTARIO

JANUARY 6, 2004

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1900-00

STYLE OF CAUSE: CANADA POST CORPORATION

Applicant

- and -

THE MINISTER OF PUBLIC WORKS AND

GOVERNMENT SERVICES CANADA

Respondent

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: Monday, May 26, 2003

REASONS FOR ORDER : The Honourable Mr. Justice Lemieux

DATED: Tuesday, January 6, 2004

APPEARANCES:

Mr. Ronald D. Lunau FOR APPLICANT

Ms. Catherine Beaudoin

Mr. Christopher Rupar FOR RESPONDENT

SOLICITORS OF RECORD:

Gowling Lafleur Henderson FOR APPLICANT

Ottawa, Ontario

Morris Rosenberg FOR RESPONDENT

Deputy Attorney General of Canada

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Canada Post Corp. v. Canada (Minister of Public Works), 2004 FC 2

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2004 FC 2