Canadian National Railway Co. v. Canada (Attorney General), 2002 FCT 974

Date: 20020913

Docket: T-2027-00

Neutral citation: 2002 FCT 974

Ottawa, Ontario, September 13, 2002

BEFORE: PELLETIER J.

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

Plaintiff

-and-

ATTORNEY GENERAL OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

[1]        The plaintiff Canadian National Railway Company filed an application for judicial review of a decision by Transport Canada, represented herein by the Attorney General of Canada, to disclose certain documents regarding the disposal of non-railway assets following an application under the Access to Information Act, R.S.C. 1985, c. A-1 ("the Act"). The issue is whether certain personal information should be disclosed if, as Transport Canada maintains, any interested party can locate it in sources to which the public has access.

[2]        The facts at issue here are not in dispute. The following summary is taken from the plaintiff's memorandum:

[TRANSLATION]

1.             The plaintiff Canadian National Railway Company (hereinafter "CN") is a railway company incorporated under Canadian legislation which manages railway assets and provides interprovincial and international railway transportation services.

2.             Until 1995 CN was a company fully owned by the Crown in right of Canada. With the adoption of the CN Commercialization Act, CN became a private company.

3.             In connection with the privatization of CN a Memorandum of Understanding was signed between Her Majesty in Right of Canada, as represented by the Minister of Transport, and CN.

4.             The said Memorandum of Understanding mentioned in clause 6B(ii) that for the years 1996 to 2001 inclusive CN would send the Government of Canada (Department of Transport) a list of all non-railway real estate sold during the calendar year and a summary of the consideration received or to be received in connection with this non-railway real estate.

5.             CN sent Transport Canada the said reports on December 31, 1996, and December 31, 1997.

6.             The said reports give a summary description of each property, indicate the municipality or province in which each of the properties is located and give the name of the purchaser, the area, the selling price, the costs associated with the sale, the net income from the sale and, finally, the date of the sale.

7.             On or about October 26, 1999, Transport Canada informed CN that it had received from an applicant, whose identity was not disclosed, an application under the Access to Information Act (hereinafter "the Act") in respect of the reports submitted to Transport Canada by CN on December 31, 1996, and December 31, 1997, and dealing with the sale of non-railway real estate.

8.             Since the detailed information in the reports of December 31, 1996, and December 31, 1997, is confidential and has always been treated as such, CN on or about November 9, 1999, indicated to Transport Canada that it was objecting to the disclosure of this information, in accordance with the applicable provisions of the Act.

9.             Transport Canada accepted CN's arguments at that time and took the decision that the information contained in reports D-2 filed jointly would not be disclosed.

10.           On or about April 12, 2000, the Information Commissioner informed Transport Canada that the applicant for access had filed a complaint in respect of the decision not to disclose the information contained in reports D-2 filed jointly.

11.           On or about April 12, 2000, CN, through its representative Claude Mongeau, first vice-president and chief, financial branch, indicated to Transport Canada that he was prepared to allow disclosure of the names of the purchasers mentioned in reports D-2, filed jointly. However, CN also indicated that it was still opposed to the disclosure of any financial information, including the selling prices mentioned in reports D-2, since that information was confidential and was treated by CN as such.

12.           On or about August 2, 2000, CN, again through Claude Mongeau, first vice-president and chief, financial branch, informed the Information Commissioner of Canada that it was maintaining its refusal to agree to disclosure of the selling price of non-railway real estate listed in reports D-2.

13.           Following a request by Transport Canada CN, through Jacques Perron, general counsel, indicated to Transport Canada that the selling prices of non-railway real estate were not automatically to be found in the registers of provincial registry offices and that each transaction should be dealt with on a case-by-case basis.

14.           On or about October 13, 2000, CN, through Jacques Perron, submitted by a letter to the Information Commissioner of Canada that, in its submission, s. 20(1)(b), (c) and (d) should be applied and that consequently the information contained in reports D-2, filed jointly, should not be disclosed.

15.           Despite the arguments made by CN, on October 16, 2000, the latter received Transport Canada's decision that the information contained in reports D-2, filed jointly, was going to be disclosed despite CN's objection.

16.           On November 3, 2000, CN challenged Transport Canada's decision, filing an application for review in the Federal Court pursuant to s. 44 of the Act.

[Footnote references and references to evidence have been omitted.]

[3]        To summarize, each year the plaintiff prepares a list of non-railway assets which it has sold during the preceding year and submits it to Transport Canada. The duty to prepare and forward such a list was imposed on the plaintiff under an agreement made at the time the plaintiff was privatized. Transport Canada received an application for disclosure of this list for 1996 and 1997, and denied that application when the plaintiff intervened. The originator of the application filed a complaint with the Information Commissioner, who in turn contacted Transport Canada. Transport Canada subsequently said it was prepared to disclose the content of the list for the years in question. The reasons for this decision included the fact that an employee of the plaintiff had previously agreed to disclosure of the information, as well as the fact that the information sought was available to the public as it was listed in the registry offices of the various provinces.

[4]        The parties agreed that the issue concerned the application of the exemptions set out in section 19 and paragraphs 20(1)(b), (c) and (d) of the Act. At the hearing, the effect of the Privacy Act, R.S.C. 1985, c. P-21, was raised and the parties submitted supplementary memorandums on this question. For the reasons that follow, it will not be necessary to deal with the question of consent or of the application of the Privacy Act.

[5]        The legislation that applies is the following:

[6]        It should be said that the documents in question, reports on the sale of non-railway property (Exhibit D-2 filed jointly), contain the following information: the name of the purchaser, the municipality where the property is located, its approximate area, the selling price, the date of sale, expenses associated with the sale and the net income from the sale. The parties agreed that the expenses associated with the sale and the net income from the sale should not be disclosed. Thus, the question before the Court is whether Transport Canada was right to believe that it had a duty to disclose the other information.

[7]        Section 19 and paragraph 20(1)(b) of the Act have a common feature which is particularly relevant to the disposition of this case. Whereas subsection 19(1) of the Act prohibits the disclosure of personal information, subsection 19(2) authorizes it in certain cases, including when the public has access to the information in question. Paragraph 20(1)(b) exempts from disclosure documents containing financial information that is confidential. However, the courts have held that information is not confidential if it can be obtained from sources to which the public otherwise has access. In the case of subsection 19(2), as in that of paragraph 20(1)(b), the fact that certain information is listed in registry offices is relevant to deciding whether there is a duty to disclose the documents.

[8]        Paragraph 20(1)(b) of the Act deals with financial information that is confidential and is provided to a federal institution by a third party. Jerome A.C.J. explained the application of paragraph 20(1)(b) in Montana Band v. Canada, [1989] 1 F.C. 143. According to the Court, the exemption mentioned by this provision only applies when:

            - the documents consist of financial information;

            - the documents are confidential in accordance with one or more objective standards;

            - the documents were supplied to a government institution by third parties;

            - the third parties have always treated the documents as confidential.

[9]        In Air Atonabee v. Canada, [1989] F.C.J. No. 453, Mackay J. considered the question of confidentiality and came to the conclusion that the confidentiality of a document depends on its content, its purpose and the circumstances in which the document was prepared and released, including:

i.                       the information is not available from sources otherwise accessible by the public (public or other documents);

ii.                     the information is communicated in a reasonable expectation of confidence that it will not be disclosed;

iii.                    the information is communicated in a fiduciary relationship between government and the party supplying it;

iv.                    the fiduciary relationship must be such as, in the opinion of the public, should be carefully preserved.

[10]      It therefore appears that the allegation of confidentiality cannot be supported in cases where the information is publicly available (subsection 19(2)), or when the information can be obtained from sources to which the public has access (paragraph 20(1)(b)). In either case, the test is whether the public has access to information from a source other than the documents which are the subject of the access application. Transport Canada maintained that that was true here, because the information in question is recorded in the registry offices. The plaintiff alleged that although the name of the purchaser, description of the property and date of sale are recorded there, in some cases the precise selling price does not appear in registry offices because of the practice in some provinces of using a fictitious price for registry purposes. It was not in dispute that the other information in question, namely the name of the purchaser, description of the property and so on, did appear in the registry offices.

[11]      It is in the very nature of registry offices that the public will have access to them. The evidence regarding indication of the exact selling price was provided by the plaintiff's representative, who in his cross-examination on affidavit had to admit that the exact selling price appeared in registry offices in 166 of the 183 transactions in question. Accordingly, at first sight it would appear that in the case of 166 transactions, where the exact selling price appears in the registry offices, none of the information in question is confidential.

[12]      However, the plaintiff raised an interesting question. It asked whether the Act only requires that the sources containing the information in question be publicly available, or whether it is necessary for the public to actually be able to gain access to the information. In the case at bar, the plaintiff was able to verify that the exact prices appeared in the registry offices because it had all the coordinates necessary to gain access to the information, namely a sufficient description of the property to make a specific request. There is no evidence in the record on this precise point, but the plaintiff argued that searches in registry offices require, for real property, a description of the property consistent with the requirements of the registry system. In other words, it would appear that it is not possible to gain access to the information in question knowing only that the plaintiff was the seller, or the name of the purchaser. If the plaintiff is correct, this would then be a case in which the information was publicly available but the public was not able to gain access to it.

[13]      Without admitting the truth of the facts alleged by the plaintiff, Transport Canada submitted that the Act only requires that the information sources be publicly available. If the information is available, practical difficulties do not in any way alter the requirements of the Act. Transport Canada referred to the purpose of the Act, as stated in its section 2:

[14]      In Rubin v. Canada, [1998] 2 F.C. 430, the Court of Appeal clarified the effect of section 2 of the Act:

[23]         In my opinion, therefore, all exemptions must be interpreted in light of this clause. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament's stated intention, choose the one that infringes on the public's right to access the least. It is only in this way that the purpose of the Act can be achieved. It follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.

[15]      In the case at bar, the plaintiff is relying on a hypothesis for which it did not present evidence as basis for suggesting an ambiguity in the meaning to be given to section 19, and at the same time, the interpretation of paragraph 20(1)(b). Even if evidence of this ambiguity was in the record, the result of Rubin, supra would be that the ambiguity was resolved in favour of disclosure. Accordingly, I conclude that the recording of the names of purchasers, the description of the property, the date of sale and the selling price in registry offices means that the information that appears in the documents in question is publicly available, and that consequently the information in question is not confidential.

[16]      The plaintiff tried to base its application on paragraphs 20(1)(c) and (d) of the Act but, in my view, these arguments cannot succeed. Those two provisions apply when disclosure of certain information would cause loss to third parties or would interfere with contractual negotiations of third parties. The plaintiff alleged that the purchasers would suffer harm if the purchase price of property were disclosed, as their ability to resell the land for a better price would be compromised because the parties in question would know their purchase price. However, we know that the selling price appears in the registry offices in 166 of the 183 transactions in question. Anyone interested in purchasing this land would therefore be able to learn the seller's purchase price from a source to which the public has access. Only purchasers of the 17 properties whose purchase prices are not recorded in the registry offices would be likely to suffer any harm from disclosure of the information in question. In any case, however, the premise that knowledge of the seller's purchase price has a conclusive effect on the eventual outcome of negotiations is not self-evident. Any relevant information is useful in negotiations, but it does not follow that a particular piece of information would have a conclusive effect in each case.

[17]      Further, the plaintiff feared that it would itself suffer loss from the fact that it could be sued by certain purchasers, who after learning of the documents disclosed, would argue that they had suffered a loss from the fact that others had been given better terms than they were. This allegation is not realistic when one considers that these are commercial transactions between persons acting at arm's length. Every individual has the right and opportunity of negotiating the agreement which is most beneficial to him or her: if others are able to obtain a greater benefit in their negotiations, their gains have nothing to do with anyone else.

[18]      With respect to paragraph 20(1)(d) of the Act, the plaintiff argued that its negotiations for the sale of other properties would be impeded by comparisons available to potential purchasers when the information in question was disclosed. However, as the plaintiff itself said:

[TRANSLATION]

. . . the selling price mentioned in reports D-2 does not always reflect the same strategic factors surrounding the transaction of this non-railway immovable property. Several factors may be taken into account in determining the value of the transaction to CN. Strategic or other factors are not necessarily reflected in the selling price.

[19]      It is thus clear that selling prices will vary depending on the circumstances, so that a purchaser would have to know much more than the gross prices paid in other transactions to have any significant advantage in negotiations with the plaintiff.

[20]      Consequently, paragraphs 20(1)(c) and (d) do not apply in the case at bar. In view of the conclusion I have reached on section 19 and paragraph 20(1)(b), therefore, there is no bar to disclosure of the information which is the subject of the access application.

[21]      This conclusion applies to the 166 cases in which the exact selling price appears in the registry offices. What about the 17 transactions in which that is not so? The agreement between the parties on non-disclosure of the costs associated with sale and the net income from the sale will result in this information being deleted from the documents to be disclosed. Accordingly, in the 17 cases in question the selling price will also have to be deleted from the documents.

[22]       Consequently, the application for judicial review will be dismissed.

ORDER

The application for judicial review is dismissed with costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-2027-00

STYLE OF CAUSE:                                                     CANADIAN NATIONAL RAILWAY COMPANY

v. ATTORNEY GENERAL OF CANADA ET AL.

PLACE OF HEARING:                                                Montréal

DATE OF HEARING:                                                  March 19, 2002

REASONS:                                                                      Pelletier J.

DATE OF REASONS:                                                  September 13, 2002

APPEARANCES:

Éric Boucher                                                                      FOR THE PLAINTIFF

Bernard Letarte                                                                 FOR THE DEFENDANT

SOLICITORS OF RECORD:

Dancosse, Brisebois                                                          FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario