Canada (Information Commissioner) v. President, Ponts Jacques Cartier et Champlain Inc., docket T-732-99

                                                                                                                               Date: 20000126

                                                                                                                            Docket: T-732-99

BETWEEN:

THE INFORMATION COMMISSIONER OF CANADA

Applicant

- and -

THE PRESIDENT OF "THE JACQUES-CARTIER

AND CHAMPLAIN BRIDGES INCORPORATED"

Respondent

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         This is an application for judicial review of the decision of the President of the company "The Jacques-Cartier and Champlain Bridges Incorporated", dated February 25, 1999, refusing access to the 1997 internal audit report prepared by the firm Raymond Chabot Martin Paré (the Report).

[2]         At the respondent's request, the hearing was held in camera.

THE FACTS

[3]         André Dauphinais, the president of the union representing the employees of "The Jacques-Cartier and Champlain Bridges Incorporated", had asked the respondent for a copy of the Report during a meeting of the Safety and Labour Relations Committee on May 19, 1998.

[4]         The respondent refused his request and Mr. Dauphinais filed a request for access to information under the Access to Information Act. The respondent again refused the request, relying on paragraphs 21(1)(a), (b), (d) and section 22 of the Access to Information Act.

[5]         Mr. Dauphinais then filed a complaint with the Information Commissioner of Canada on August 20, 1998. Following representations by the parties, the Commissioner concluded on February 15, 1999 that the complaint was justified. The Commissioner recommended that the Report be disclosed. However, the respondent informed the Commissioner on February 25, 1999 that it did not intend to implement his recommendation. The Commissioner, with the consent of Mr. Dauphinais, then filed an application for judicial review on April 26, 1999.

COMMISSIONER'S RECOMMENDATIONS

[6]         The Commissioner explains that paragraph 21(2)(b) provides that subsection 21(1) does not apply in respect to a report prepared by a consultant or an adviser who was not, at the time, an employee of a government institution or of a minister of the Crown. In this case, the author of the Report was not a member of the staff of a government institution or of the minister.

[7]         In regard to the application of section 22, the Commissioner concludes that the Report did not contain any information relating to testing or auditing procedures as described in section 22. Furthermore, disclosure of the report would not reveal any confidential information about auditing techniques that are not generally known in the business community or the government. The Commissioner concludes that the Report should be disclosed.

APPLICANT'S SUBMISSIONS

[8]         The applicant submits that the respondent erred in refusing disclosure of the Report under paragraphs 21(1)(a), (b) and (d) since paragraph 21(2)(b) provides that subsection 21(1) does not apply to a report prepared by a consultant or adviser who was not, at the time, an officer or employee of a government institution or a member of the staff of a minister of the Crown.

[9]         In the case at bar, there is no denying that the author of the disputed Report, the firm Raymond, Chabot, Martin, Paré, was not part of the staff of "The Jacques-Cartier and Champlain Bridges Incorporated" at the time the Report was written. Thus the respondent cannot rely on the exemptions under paragraphs 21(1)(a), (b) and (d) of the Act.

[10]       Furthermore, the applicant says, the respondent erred in refusing the disclosure of the Report under section 22 of the Act, since the Report does not contain information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted the disclosure of which would prejudice the use or results of particular tests or audits.

[11]       The applicant submits that section 22 could not be used to shield from disclosure the final report of testing or auditing procedures or techniques since this section makes no exception for the results of these testing or auditing procedures or techniques. Unlike the other provisions of the Act, where it suffices to demonstrate a likely risk of probable harm, section 22 requires that the government institution demonstrate that the disclosure of the information will cause harm.

[12]       The applicant submits that in the instant case no proof of harm has been submitted and that this claim should be dismissed.

[13]       To discover the reasoning behind section 22, the applicant relies on the minutes and testimony of the Standing Committee on Justice and Legal Affairs concerning Bill C-43. He notes that the onus is on the government institution refusing disclosure of the information to demonstrate that disclosure would prejudice the use or results of the tests or audits.

[14]       He argues that the Treasury Board, the designated agency for the application of many provisions of the Act, states that section 22 of the Act provides no exemption for the results of tests or audits. The Treasury Board contends that the fact that disclosure might result in administrative changes within a federal institution is not enough to justify a subjective exemption.

[15]       The applicant argues that the respondent has not discharged its onus of establishing in fact and in law the justification for its refusal to disclose the report and, moreover, that a major part of the report has already been disclosed in the Court record, citing in this connection the letter of January 19, 1999 from the respondent's counsel, appended to the affidavit of the respondent's general manager, Mr. Glen P. Carlin.

RESPONDENT'S SUBMISSIONS

[16]       The respondent suggests that nowhere in subsection 21(2) is there any reference to a "plan" as specified in paragraph 21(1)(d). Hence, it suggests, there is no basis for concluding from this that the word "plan" fits within the word "report".

[17]       The respondent suggests that in paragraph 21(2)(b), as worded, "a record that contains . . . a report" could not be referring to a "plan" as defined in paragraph 21(1)(d), since the expression "record that contains" refers to the overall record within which a report is contained.

[18]       The respondent suggests that the exclusion under paragraph 21(2)(b) is intended only to restrict the scope of the right of refusal in subsection 21(1) as it affects paragraphs (a) advice or recommendations and (b) account of consultations or deliberations, but not paragraph (d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation. Otherwise, an overbroad interpretation of the exclusion under paragraph 21(2)(b) would empty the right of refusal in subsection 21(1) of any meaning.

[19]       The respondent suggests that this is all the more obvious in that the exceptions under paragraphs 21(1)(a) and 21(1)(b) and the limitation under paragraph 21(2)(b) all cover the government institution or the minister, while the exception under paragraph 21(1)(d) covers only the government institution.

[20]       The respondent suggests, moreover, that by formulating the phrase to provide that the consultant or advisor was "not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown", Parliament meant to imply that he must now be an officer or employee for the exception in paragraph 21(2)(b) to apply. Had this not been its intention, it would have been much simpler for Parliament to omit the aforesaid part, and to refer instead to "a report prepared by a consultant or an adviser" without thereby limiting the scope of the section to a particular period.

[21]       As to the application of section 22 of the Act, the respondent submits that it is clear from the language of the Report that, in implementing its recommendations, the Company will have to use the same procedures in the future, and that the premature disclosure of this Report could compromise its implementation in terms of the Company's human resources management and thus violate section 22 of the Act.

[22]       The respondent submits that the Report is a preliminary document and that the untimely release of the test procedures or audit criteria used by Raymond, Chabot, Martin, Paré for diagnostic purposes could jeopardize the application of their recommendations in the future.

[23]       The respondent notes that the Mr. Dauphinais' request for disclosure of the Report was made in a very specific context. At the time the application was filed,the applicant was the president of the union of the Company's blue-collar employees, known as the Syndicat des travailleuses et des travailleurs des Ponts Jacques Cartier et Champlain (CSN). This union was at that date and has since been bargaining with the Company for the renewal of its collective agreement.

[24]       The respondent submits that the disclosure of the record during negotiations for the renewal of the collective agreement would only give the union undue bargaining power and disrupt the existing equilibrium in the relationship of forces between the employer and the union.

ISSUES:

1.          Did the respondent err in refusing to disclose to Mr. Dauphinais the record requested under paragraphs 21(1)(a), (b) and (d) of the Act?

2.          Did the respondent err in refusing to disclose to Mr. Dauphinais the record requested under section 22 of the Act?

3.          Has the respondent discharged its onus of establishing in fact and in law the justification for its refusal to disclose the requested record?

ANALYSIS

Burden of proof

[25]       Section 48 of the Act states:

[26]       In Maislin Industries Limited v. Minister of Industry and Commerce et al., [1984] 1 F.C. 939, the Federal Court stated:

It should be emphasized however, that since the basic principle of these statutes is to codify the right of public access to Government information two things follow: first, that such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether, as in this case, it is the private corporation or citizen, or in other circumstances, the Government.

[27]       Both the Access to Information Act and the Court decisions place the onus on the respondent to persuade the Court that the Report should not be disclosed.

1.          Did the respondent err in refusing to disclose the record under subsection 21(1) of the Access to Information Act?

[28]       Section 21 of the Act reads as follows:

[29]       If we examine the definitions of "report" and "plan", we find that:

[Translation]

      (a) The Petit Larousse defines:

             "report" as an account of something, whereas "plan" means the first draft of a text.

      (b) The Petit Robert offers a similar definition:

              "report": the action of reporting, giving an account of something seen or heard; what is

             reported, a more or less official account;

"plan": undertaking, preliminary draft, early stage.

[30]       I am not convinced that the Report in question is a plan. It is not an initial draft of work [première ébauche d'un travail]. The firm has completed its work and has presented its recommendations in the form of a report. If the Company plans to put it into operation at some later stage, in my opinion this does not alter the fact that it is a report, as its name clearly indicates.   

[31]       Subsection 21(2) is clear. It indicates that only the report prepared by an adviser or consultant who is an officer or employee of a government institution or a member of the minister's staff is excluded. But in the case at bar, the Report was prepared by a private firm and thus escapes the application of subsection 21(1). The respondent cannot rely on this subsection in order to prevent the disclosure of the record.

2.          Did the respondent err in refusing to disclose the Report under section 22 of the Access to Information Act?

[32]       Section 22 of the Access to Information Act reads as follows:

[33]       The Treasury Board, the agency responsible for the application of the Act, states in the Treasury Board Manual, in connection with section 22:

The exemption applies to testing and auditing carried out by both federal institutions and consultants and contractors. This section does not, however, provide an exemption for the results of tests or audits. Government institutions cannot exempt information on previous tests or audits unless the same procedures are to be used in future operations where disclosure would consequently cause the injury described in this section.¹

[34]       The Report in question contains the results of the internal audit.

[35]       Since results are excluded from the scope of section 22, the respondent cannot rely on this section to refuse disclosure.

[36]       Furthermore, as counsel for the applicant rightly noted, no evidence was presented to demonstrate that disclosure of information "would prejudice the use or results of particular tests or audits".

[37]       The Treasury Board states the following as well in its manual concerning the evidence of injury:

Under the law, it must be possible to identify an actual detrimental effect on the interest specified in the exemption.

A large number of considerations will be involved in making a judgement as to injury but three general factors should be taken into account by government institutions in making such decisions; these are the degree to which the injury is:

(a) Specific: Is it possible to identify the detrimental effect with the actual party who, or the interest which will suffer injury, rather than identifying it only with a vague general harm?

(b) Current: Is it possible to identify the detrimental effect at the time the exemption is claimed or in the foreseeable future? Information which has been protected from disclosure in the past should be reassessed when a new request is received to ensure that present or future injury is still a factor; and

(c) Probable: Is there a reasonable likelihood of the injury occurring?²

[38]       It seems clear in the circumstances that the respondent has failed to demonstrate in any way the apprehended injury should the document be disclosed.

3.          Has the respondent discharged its onus of establishing in fact and in law the justification for its refusal to disclose the requested record?

[39]       In Canadian Council of Christian Charities v. Canada (Minister of Finance) (1999), 99 D.T.C. 5337, Evans J. writes:

Other exemptions, however, are permissive and provide that the head of a government institution may refuse to disclose information of a given description: paragraphs 18(d) and subsection 21(1) and section 23 are of this kind. When reviewing decisions made under permissive provisions the Court must decide not only whether the information falls within that described in the relevant provision, but also, if it does, whether the head of the government institution lawfully exercised the discretion not to disclose it.

[40]       In my opinion the respondent has failed to demonstrate that the exemptions under the Act apply in this instance.

[41]       Furthermore, it seems that, whether voluntarily or not, the respondent has already disclosed a fair portion of the document in the letter appended to the affidavit of the respondent's general manager. In this case, a fair portion of the Report dealing with the management of human resources is already part of the Court record, which is not confidential, and a fair portion of the appendices dealing with human resources has already been disclosed as well.

[42]       As to the numerous arguments by the respondent to the effect that it might suffer irreparable damage, considering the fact that it was negotiating with its employees, and has been for several years, and that this request for access to information was only one component in the union's bargaining strategy, all of these arguments ought to be dismissed with the back of the hand. There is no need for me to rule on the possible reasons why someone might be making a legitimate request for access to information. However, since it was mentioned, I wonder instead whether the refusal to disclose the document in accordance with the Act was not itself part of the employer's bargaining strategy.

[43]       For all these reasons, this application is allowed. I order the respondent to disclose the document that is the subject of this litigation to Mr. André Dauphinais within thirty days of this judgment.

[44]       Costs of the proceeding.

Pierre Blais

J.

OTTAWA, ONTARIO

January 26, 2000

Certified true translation

Martine Brunet, LL.B.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE NO:                                 T-732-99

STYLE:                                     THE INFORMATION COMMISSIONER OF CANADA v.

THE PRESIDENT OF "THE JACQUES-CARTIER AND CHAMPLAIN BRIDGES INCORPORATED"

PLACE OF HEARING:            MONTRÉAL, QUEBEC

DATE OF HEARING: JANUARY 11, 2000

REASONS FOR ORDER AND ORDER OF BLAIS J.

DATED:                                   JANUARY 26, 2000

APPEARANCES:

DANIEL BRUNET AND                                              FOR THE APPLICANT

NATHALIE DAIGLE

MARK E. TURCOT AND                                           FOR THE RESPONDENT

DANIÈLE BARTEAU

SOLICITORS OF RECORD:

COMMISSIONER OF INFORMATION                    FOR THE APPLICANT

OF CANADA

de GRANDPRÉ, CHAIT                                              FOR THE RESPONDENT

MONTRÉAL, QUEBEC