Docket: T-1384-10
Citation: 2012 FC 417
Ottawa, Ontario, April
12, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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HIBERNIA MANAGEMENT AND DEVELOPMENT COMPANY
LTD.
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Applicant
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and
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CANADA - NEWFOUNDLAND AND LABRADOR OFFSHORE PETROLEUM BOARD
AND THE INFORMATION COMMISSIONER OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Hibernia Management and Development Company Ltd. (the
applicant) under section 44 of the Access to Information Act, RSC 1985,
s A-1 (the ATIA) challenging a decision of the Canada-Newfoundland and Labrador
Offshore Petroleum Board (the Board), dated August 9, 2010, to disclose records
pertaining to a safety and environmental audit of the Hibernia Platform oil and
gas operation, offshore of Newfoundland and Labrador.
[2]
The
applicant requests that this Court order the Board not to disclose the records.
Background
[3]
The
applicant operates the Hibernia Platform that produces oil and gas from the
Hibernia field, located on the continental shelf offshore of Newfoundland and Labrador. The project is
operated in accordance with an Operations Authorization issued by the Board to
the applicant under the Canada-Newfoundland Atlantic Accord Implementation
Act, SC 1987, c 3 (the Accord Act).
[4]
On
June 4, 2010, the Board received an Access to Information Request Form. The
following information was requested:
All
documents pertaining to integrated safety and environmental protection audits
and inspections of offshore drilling operations conducted by the Board since
Jan. 1, 2008.
[5]
In
response, the Board prepared a list of sixty-four potentially relevant
documents. This list included the following items that the Board found might
include third party information (the documents):
C-NLOPB
Safety and Environment Audit Report, dated May 23, 2008 (including Appendices A
through F); and
Status
of Non-Conformance Report, dated June 15, 2010.
[6]
These
documents were completed as part of the Board’s Integrated Safety and
Environment Audit, which assessed the regulatory and management system
compliance of the applicant’s Hibernia Platform operations. The audit was
conducted between January and May 2008 by an audit team consisting of two
safety officers and two environmental compliance officers. In the first report,
the audit team presented its audit observations and findings. These terms are
defined as follows in this report:
Observation:
A statement of fact related to a non-conformance made during a safety audit or
safety inspection and substantiated by objective evidence.
Finding:
A conclusion, substantiated by one or more observations, that has significant
implications for the operator’s due diligence in implementing their safety
management policies and procedures or in adhering to legislative requirements
and/or any non-conformance that has significant implications for safety.
[7]
This
first report listed items that the audit team observed were to be in
non-compliance with the applicant’s own policies, conditions imposed by the
Board or statutory requirements. Although non-compliances were observed, the
report also indicated that there were no immediate concerns for the safety of
personnel, the facility or the environment. The second report provided a
follow-up on the first, indicating which of the non-compliances had been
rectified by the applicant and subsequently closed by the Board.
[8]
In a
letter dated June 25, 2010, the Board advised the applicant that it had received
a request for information pursuant to the ATIA. It explained that the
documents, copies of which it included with the letter, were not subject to the
privilege under section 119 of the Accord Act. Nevertheless, it sought the
applicant’s view on the disclosure of them.
[9]
In a
letter dated July 15, 2010, the applicant provided a detailed response in which
it objected to the disclosure of the documents.
[10]
On
August 3, 2010, the Board notified the applicant by letter that although the
documents were not, per se, subject to the privilege under subsection
119(2) of the Accord Act, it agreed with the applicant that certain information
contained therein might be subject to this privilege. Therefore, the Board
stated that it would undertake the process of identifying the information for
redaction.
[11]
The
following week, in a letter dated August 9, 2010 (the decision), the Board
explained that it did not view the audit team’s observations and findings to be
information provided by the applicant. Therefore, it did not agree that these
were subject to the privilege under subsection 119(2) of the Accord Act. The
Board appended a copy of the documents containing the Board’s proposed
redactions (the redacted documents) and indicated that it intended to release
these documents to the requestor on August 30, 2010. The Board also stated that
the applicant was entitled to request a review of its decision.
[12]
On
August 30, 2010, the applicant filed a notice of motion seeking a review of the
Board’s decision.
Issues
[13]
The
applicant submits the following points at issues:
1. Whether the information
contained in the documents is privileged and therefore protected from
disclosure pursuant to section 119 of the Accord Act without the applicant’s
written consent.
2. Whether the documents
fall within any of the following exemptions to disclosure in the ATIA:
a. Commercial or
technical information that is confidential information supplied to the Board by
the applicant and which is treated consistently in a confidential manner by the
applicant (paragraph 20(1)(b)); or
b. Personal
information (section 19)
[14]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Are the documents exempt
from disclosure under subsection 24(1) of the ATIA on the basis that they are
privileged under subsection 119(2) of the Accord Act?
3. Are the documents exempt
from disclosure under paragraph 20(1)(b) of the ATIA on the basis that they
contain confidential, commercial or technical information, or under section 19
of the ATIA on the basis that they contain personal information?
Applicant’s Written Submissions
[15]
The
applicant submits that no deference should be shown to the Board in its
handling of the Access to Information Request Form or in its approach to the
applicant’s comments on the disclosure of the documents.
[16]
The
applicant submits that the documents are precluded from disclosure on three
grounds: 1. Privilege;
2. Commercial or technical
nature; and
3. Personal information.
[17]
On
the first ground, the applicant submits that although the ATIA provides the
public with a right to access information, this right is not unlimited. Rather,
the public’s right to access must be balanced against a company’s right to
privacy and confidentiality, particularly where there is no concern that the
principle of facilitating democracy will be eroded. Recognizing this need, the
applicant submits that subsection 24(1) of the ATIA creates a broad statutory
privilege to protect information and documentation whose disclosure is
restricted under a provision listed in Schedule II of the ATIA, without the
written consent of the person who provided it. As section 119 of the Accord Act
is listed under Schedule II, the applicant submits that information collected
by the Board through its safety and environmental auditing process is
prohibited from disclosure.
[18]
The
applicant submits that the documents contain information that it provided to
the Board and that the observations and findings presented therein were
directly derived from personnel interviews, extensive document review and
observational activities on and off shore. Without this information, the
applicant submits that nothing in the documents would have come into existence.
As such, this information did not arise independently of that which the
applicant provided to the Board and the Board is therefore not free to release
it to the public without the applicant’s consent. The applicant submits that
this is further evidenced by the Board’s letter dated August 3, 2010, in which
it recognized that certain information may be subject to the subsection 119(2)
privilege.
[19]
In
addition, the applicant refers to the statutory interpretation maxim of expressio
unius est exclusion alterius: to express one thing is to exclude another.
The applicant highlights subsection 119(5) of the Accord Act that specifies
information and documents exempt from the subsection 119(2) privilege. As
information provided for the purposes of safety and environmental audits is not
listed therein, the applicant submits that this information is not exempt from
the privilege under the expressio unius est exclusion alterius maxim.
[20]
On
the second ground, the applicant submits that the Board is precluded from
disclosing the documents under paragraph 20(1)(b) of the ATIA. The applicant
submits that there are four criteria that must be met to determine whether this
mandatory exemption applies. The information must be: 1. Financial,
commercial, scientific or technical;
2. Confidential;
3. Supplied to a government
institution by a third party; and
4. Treated consistently in a
confidential manner by the third party.
[21]
The
applicant submits that the documents clearly contain commercial or technical
information that it supplied to the Board.
[22]
In
terms of confidentiality, the applicant refers to jurisprudence that has
developed on the test of objective confidentiality. It submits that this test
is met in this case because:
1. The specific information
is not publicly available. The information was obtained from the applicant
through interviews with its personnel, site visits and reviews of confidential
and proprietary documentation that the applicant provided to the Board;
2. The information was
communicated to the Board in a reasonable expectation of confidence. The
applicant had a reasonable expectation of confidentiality due to the provisions
in the ATIA and in the Accord Act; and
3. The relationship between
the parties would be fostered for the public benefit by confidential
communication. There is significant public interest in the full, frank and
timely exchange of information between regulatees and regulators that is
promoted in a confidential relationship.
[23]
The
applicant also submits that it, as a third party, released information to the
Board and the documents either contain this information or statements or
opinions that reveal such information. Finally, the applicant submits that it
consistently treated the information it provided to the Board in a confidential
manner and on the expectation that it would remain confidential. In summary,
the applicant submits that the four-part test under paragraph 20(1)(b) of the
ATIA is met and the Board is therefore not free to release the documents
without the applicant’s written consent.
[24]
On
the third ground, the applicant submits that individuals, including their employment
and contact information, are identified by name in various parts of the
documents. Without the consent of these individuals, the applicant submits that
this information is also exempt from disclosure under section 19 of the ATIA.
[25]
Finally,
the applicant submits that it is not possible to sever parts of the documents
as the information included therein is inextricable. Therefore, any efforts to
sever some of the information would result in a report containing inadequate
information to justify releasing it to the requestor.
Respondent’s (Board) Written Submissions
[26]
The
Board submits that as the documents were authored by it and consist of
independent observations made by its audit team, they are not exempt from
disclosure pursuant to either subsection 119(2) of the Accord Act, or section
19 or paragraph 20(1)(b) of the ATIA.
[27]
The
Board agrees with the applicant that the standard of review under section 44 of
the ATIA requires a decision de novo by the Court, which attracts a
standard of review of correctness.
[28]
The
Board submits that the party resisting disclosure, the applicant in this case,
must prove on a balance of probabilities, that the documents are exempt from
disclosure. The Board submits that the applicant has not established that the
documents are information or documents provided to it for the purposes of Part
II or Part III of the Accord Act (as required for the privilege under
subsection 119(2) to operate in accordance with section 24 of the ATIA).
Rather, the Board submits that although information provided by the applicant
is included in the documents, the actual generation of the documents (including
observations and findings presented therein and compilation and writing
thereof) was done solely by the audit team.
[29]
The
Board refers to jurisprudence that has developed on access to information
requests for audit reports generated by government agencies or privately held
companies. The Board submits that references in these cases to independent
observations made by auditors is similar to the scenario in the case at bar.
This renders the documents exempt from the statutory privilege.
[30]
The
Board also highlights the applicant’s failure to specifically identify portions
of the documents that contain the information allegedly attracting privilege.
Rather, the Board submits that the applicant has merely made broad assertions
to prevent the disclosure of the documents. The Board refers to the affidavit
of Sharon Hiscock and the footnote reference therein to eighteen of the
ninety-six observations in the audit report. The Board submits that these
eighteen observations are primarily independent observations of the audit team.
Any reference to the applicant’s manuals, checklists or procedures does not
disclose the contents of these documents. In sum, the Board submits that the
applicant has failed to establish, on a balance of probabilities, that the
documents must be withheld from disclosure in their entirety.
[31]
In
response to the applicant’s submission on subsection 119(5) of the Accord Act
and the lack of specific exclusion of audit reports thereunder, the Board
submits that subsection 119(2) only establishes statutory privilege over
documents provided to it by an operator. As the documents are authored by the
Board and therefore not provided to it by an operator, these do not fall under
the scope of subsection 119(2) or of any exception to it (i.e., subsection
119(5)). For the same reason, namely that the documents were authored by the
Board and not provided to it by the applicant, the Board submits that the
documents are not exempt under paragraph 20(1)(b) of the ATIA. The Board also
submits that by merely making broad assertions, the applicant has failed to
demonstrate that there is information contained in the documents that is of a
commercial or technical nature.
[32]
In
response to the applicant’s submission that the documents should not be
disclosed due to the existence of personal information therein, the Board
submits that this information was removed from the redacted documents which it
attached to its decision.
[33]
Finally,
the Board submits that the documents do not contain any of the applicant’s
information that cannot be severed from it.
Respondent’s (ICC) Written Submissions
[34]
The
Information Commissioner of Canada (ICC) submits that it is Parliament’s intention
that the ATIA, which holds a quasi-constitutional status, be applied liberally
and broadly. Therefore, rather than being the exception, the disclosure of
documents under the control of government institutions is to be the norm.
Exceptions to non-disclosure must be interpreted strictly. Any portion of the
record that does not contain exempted information and that can be reasonably
severed must be disclosed in accordance with section 25 of the ATIA.
[35]
The
ICC acknowledges the effect of this Court’s decision on the requestor. It
submits that a finding by this Court on the Board’s decision to redact portions
of the documents would have the effect of removing the requestor’s right to
complain under the ATIA to the ICC about the Board’s decision to refuse access.
This would usurp the requestor’s right to an independent investigation by the
ICC of the exemptions claimed.
[36]
The
ICC submits that the applicant has failed to establish the heavy evidentiary
burden that the redacted documents fall within the exemptions of the ATIA. The
ICC submits that the applicant must satisfy the Court with clear and direct
evidence that an exemption to the right of access requires that the information
not be disclosed. The withholding of information must only occur in the most limited
and specific of circumstances. Therefore, any information that does not qualify
for exemption must be disclosed.
[37]
The
ICC submits that through its bald assertions, unsupported by cogent clear and
direct evidence, the applicant has failed to establish on a balance of
probabilities that paragraph 20(1)(b) of the ATIA applies. The ICC highlights
jurisprudence that has rejected arguments that independent comments or
observations based on a review of third party records meant that those comments
or observations were supplied by the third party. The ICC refers to information
in the documents that it submits clearly did not emanate from the applicant,
namely:
1. Common set of audit
topics;
2. Generic and non-facility
specific checklists;
3. Canadian Association of
Petroleum Producer’s “Safe Lifting Practices”; and
4. Authorizations issued by
the Board to the applicant.
[38]
The
ICC also submits that the applicant has failed to adequately establish that the
documents contain commercial or technical information, or that they are
objectively confidential. The ICC submits that the confidential documents that
the applicant supplied to the Board for the audit are only referred to by title
in a list in the redacted documents. This is not sufficient to cloak the redacted
documents with confidentiality.
[39]
The
ICC criticizes the applicant’s submission that maintaining confidentiality is
in the public interest. The ICC submits that this disregards the applicant’s
legal requirement to supply the Board with requested safety and environmental
information. It also disregards the public interest in knowing whether the
applicant is upholding its statutory commitments and whether the government is
pursuing its regulatory mandate on safety and environmental protection related
to petroleum operations.
[40]
The
ICC agrees with the Board’s submissions that the information in the documents
cannot be characterized as being supplied by the applicant. The ICC further
submits that the applicant has failed to tender cogent evidence on the portions
of the documents that contain the information that it provided to the Board.
[41]
In
response to the applicant’s submissions on the exemptions to subsection 119(2)
of the Accord Act, the ICC submits that as the documents were not supplied by
the applicant, there can be no inference drawn from the fact that “safety and
environmental audits” are not included in the list of exceptions set out in
subsection 119(5). In the alternative, the ICC submits that should the Court
find that the documents do fall within the scope of subsection 119(2), they are
exempt from this privilege by several provisions of the Accord Act,
specifically:
1. 119(2): “…except for the
purposes of the administration or enforcement of either Part …”;
2. 119(5)(f): “any
contingency plan formulated in respect of emergencies arising as a result of
any work or activity authorized under Part III”; or
3. 119(5)(g): “…the status
of operational activities or of the development of or production from a pool or
field”.
[42]
Finally,
the ICC submits that the sole personal information remaining in the redacted
documents pertains to the Board’s own personnel. This information is excluded
from the definition of “personal information” under the Privacy Act and section
19 of the ATIA therefore does not apply.
Analysis and Decision
[43]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
Court, the reviewing Court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[44]
The
parties agree that a review under section 44 of the ATIA requires the Court to
conduct a de novo review of the records. This requires the Court to
“engage in a detailed scrutiny of the information to determine whether all or
parts of the information should be withheld from disclosure” (see Coradix
Technology Consulting Ltd v Canada (Minister of Public Works and Government
Services),
2006 FC 1030, [2006] FCJ No 1310 at paragraph 31).
[45]
In
the case at bar, all the claimed bases of exemption are mandatory in nature.
The jurisprudence is well established that the Court should not show deference
to a board’s decision on whether or not a given document is included in a
mandatory statutory disclosure exemption. The Court should therefore review
this matter on a standard of correctness (see Thurlow v Canada (Royal
Mountain Police), 2003 FC 1414, [2003] FCJ No 1802 at paragraph 28; Provincial
Airlines Limited v Canada (Attorney General), 2010 FC 302, [2010] FCJ No
994 at paragraphs 17 and 18). If the Court does not agree with the Board’s
decision, it must substitute its own view and provide the correct answer (see Dunsmuir
above, at paragraph 50).
[46]
Issue
2
Are the
documents exempt from disclosure under subsection 24(1) of the ATIA on the
basis that they are privileged under subsection 119(2) of the Accord Act?
The ATIA is intended to promote the
public right of access to information in records held under the control of
Canadian government institutions. Exemptions to this right are to be limited
and specific (ATIA, subsection 2(1)). A mandatory exemption is provided under
subsection 24(1) of the ATIA, which incorporates by reference select provisions
from other statutory instruments, including section 119 of the Accord Act.
Therefore, to be exempt from disclosure under the ATIA, the documents must
first qualify as privileged under section 119 of the Accord Act.
[47]
Subsection
119(2) of the Accord Act grants privilege to information or documentation provided
by a person for the purposes of Part II (Petroleum Resources), Part III
(Petroleum Operations), or regulations made thereunder. In the case at bar, the
applicant submits that this provision bestows privilege protection on the
documents. However, the documents were not produced or provided by the
applicant. Rather, they were produced by the Board based on its audit.
[48]
Nevertheless,
the applicant submits that the documents were produced based on information
derived from its sources that it granted the audit team access to;
specifically:
1. Interviews with the
applicant’s personnel;
2. Information contained in
the applicant’s documents; and
3. Observations of the
applicant’s onshore and offshore activities.
[49]
The
applicant submits that as a result of this provision of access, the documents
contain details of its policies, procedures, equipment, processes and
activities. It also submits that it only granted the audit team access on the
understanding that the information was to remain confidential in accordance
with subsection 119(2) of the Accord Act.
[50]
To
evaluate the applicant’s submission, it is necessary to consider the nature of
the documents and the content contained therein. The documents present the
results of an environmental and safety audit conducted of the applicant’s
Hibernia Platform operation in 2008 and 2010. These audits are carried out in
accordance with Part III of the Accord Act, which seeks to promote safety and
environmental protection in the exploitation of the Newfoundland and Labrador offshore petroleum
resources (section 135.1).
[51]
The
documents report the audit team’s observations and findings. Although a list of
the applicant’s documents reviewed by the audit team is included, there are no
excerpts of the applicant’s documents or of the interviews with its personnel.
Nor are there any photographs or site plans of the applicant’s operation. The
non-conformances identified by the audit team do refer to statutory
requirements and commitments made under the applicant’s own policies. However,
the observations are generally limited to whether or not the applicant is in
compliance with these commitments and whether there are procedural
deficiencies. Further, trade names have been redacted in the redacted
documents.
[52]
Extensive
jurisprudence has developed on access to information requests for audits
reports on private companies generated by government agencies. In Canada
Packers Inc v Canada (Minister of
Agriculture) (FCA),
[1989] 1 FC 47, [1988] FCJ No 615, two individuals requested access to audit
reports completed by meat inspectors of meat packing plants. Mr. Justice
MacGuigan differentiated the employee information from the information
contained in the audit reports on the basis that the former had been supplied
by the meat packing company whereas the latter had not. Therefore, the latter,
the information contained in the audit reports, did not attract the same
protection as the confidential employee information (at paragraph 11). As
explained by Mr. Justice MacGuigan, “[t]he reports are, rather, judgments made
by government inspectors on what they have themselves observed”. In the more
recent case of Toronto Sun Wah Trading Inc v Canada (Attorney General),
2007 FC 1091, [2007] FCJ No 1418, Deputy Justice Max Teitelbaum followed Canada
Packers above, and stated that “[i]f information was simply noticed by
officials while at the Applicant's premise, this does not constitute
information supplied by the Applicant” (at paragraph 24).
[53]
This
jurisprudence, coupled with the above review of the nature and content of the
documents, suggests that they are more accurately described as independent
observations by the audit team than actual materials produced by the applicant.
The applicant has not provided clear evidence to indicate that the opposite is
true. Therefore, I do not find that the documents fall within the scope of
subsection 119(2) of the Accord Act.
[54]
The
applicant also submits that the lack of reference to environmental and safety
audits in subsection 119(5) of the Accord Act (exemptions to the application of
privilege under subsection 119(2)), supports its position that the documents
are privileged. However, as the documents do not fall under subsection 119(2),
subsection 119(5) does not apply.
[55]
Conversely,
if I had found that the documents are privileged under subsection 119(2), I
would agree with the ICC that there are classes enumerated under subsection
119(5) under which the documents may be disclosed. As submitted by the ICC,
significant parts of the documents pertain to contingency plans for emergencies
(paragraph 119(5)(f)) and to the status of the Hibernia Platform’s operations
(paragraph 119(5)(g)). Therefore, I find that even if subsection 119(2)
privilege applies to the documents, they may still be disclosed under
paragraphs 119(5)(f) and (g) of the ATIA.
[56]
Issue
3
Are the documents exempt from
disclosure under paragraph 20(1)(b) of the ATIA on the basis that they contain
confidential, commercial or technical information, or under section 19 of the
ATIA on the basis that they contain personal information?
In Blank v Canada (Minister of the
Environment),
2006 FC 1253, [2006] FCJ No 1635, Mr. Justice James Russell described some
general interpretative principles to guide the application of the ATIA
(paragraphs 30 to 32):
First
of all, the Act must be interpreted in the light of the fundamental principle
that government information should be available to the public, and that
exceptions to the public’s right of access should be "limited and
specific". […]
Secondly,
public access to government information should not be frustrated by the courts
except upon the clearest of grounds. Any doubt should be resolved in favour of
disclosure, with the burden of persuasion resting upon the party resisting
disclosure. […]
Thirdly,
although the Act creates a right of access, that right is not absolute. It must
be examined in light of other provisions of the Act and the specific exemptions
claimed. […]
[57]
These
principles should be considered in applying both paragraph 20(1)(b) and section
19 of the ATIA to the circumstances of the case at bar.
[58]
Recently,
the Supreme Court of Canada in Merck Frosst Canada Ltd v Canada (Health),
2012 SCC 3, [2012] SCJ No 3, reviewed the standard of proof required by parties
objecting to the disclosure of records under paragraph 20(1)(b) of the ATIA and
stated at paragraphs 92 to 95:
92 Who bears the burden is not
controversial. The third party bears the burden of showing why disclosure
should not be made when it seeks judicial review (under s. 44 of the Act) of
the head’s decision to disclose material which has been the subject of a notice
under s. 27. This has been clear since the early case law construing the Act:
see, e.g., Maislin Industries.
(b)
The Standard of Proof
93
The
applicable standard of proof is less clear. Merck argues that the Federal Court
of Appeal erred in applying a heavier standard of proof than that of the
balance of probabilities. For example, at para. 62, in the context of her
analysis of s. 20(1)(b), Desjardins J.A. spoke of there being a “heavy” burden
on the objecting party. Similarly, in relation to s. 20(1)(a), she referred, at
para. 54, to a “high threshold”.
94
This
notion of a “heavy burden” appears in many places in the jurisprudence relating
to the exemptions: see, e.g., AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 (CanLII) (with
supplementary reasons at 2005 FC 648 (CanLII)), at para. 52, aff'd 2006 FCA
241, 353 N.R. 84, and Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.) (“Canada v.
Canada”), at p. 441. However, it is important to differentiate between the
standard of proof and how readily that standard may be attained in a given
case. It is now settled law that there is only one civil standard of proof at
common law and that standard is proof on the balance of probabilities: F.H.
v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. Nothing in the
Act suggests that we should depart from this standard. However, as noted in McDougall,
“context is all important and a judge should not be unmindful, where
appropriate, of inherent probabilities or improbabilities or the seriousness of
the allegations or consequences” (para. 40). Proof of risk of future harm, for
example, is often not easy. Rothstein J. (then of the Federal Court) captured
this point in Canada v. Canada where he noted that there is a “heavy
onus” on a party attempting to prove future harm while underlining that the
obligation to do so requires proof on a balance of probabilities (p. 476).
Therefore, I conclude that a third party must establish that the statutory
exemption applies on the balance of probabilities. However, what evidence will
be required to reach that standard will be affected by the nature of the
proposition the third party seeks to establish and the particular context of
the case.
95
Turning
to the Court of Appeal’s reasons in the present case, I am of the opinion that
they applied a higher burden than the civil standard of the balance of
probabilities in relation to the s. 20(1)(a) and (b) exemptions. As noted, the
court called for a “high threshold” in relation to s. 20(1)(a) (para. 54) and
applied a “heavy” burden in relation to s. 20(1)(b) (para. 62). While
exemptions are the exception and disclosure the general rule, with any doubt
being resolved in favour of disclosure, the applicable standard of proof is
still the civil standard of the balance of probabilities.
[59]
Paragraph
20(1)(b) of the ATIA specifies three conditions that must be met before the
head of the government institution will refuse to disclose a requested record. The
information must be:
1. Financial, commercial,
scientific or technical;
2. Confidential and
consistently treated as confidential by the third party; and
3. Supplied to a government
institution by the third party.
[60]
In
the case at bar, the applicant submits that the information in the documents
is, on its face, commercial or technical. In Air Atonabee Ltd v Canada
(Minister of Transport), 27 FTR 194, [1989] FCJ No 453 at 208, Mr. Justice
W. Andrew MacKay explained that the meaning of commercial and technical is to
be taken as these are commonly understood with the assistance of dictionaries
(approved by the Supreme Court of Canada in Merck above, at paragraphs
138 and 139). In applying this approach, the Federal Court of Appeal recently
found that information collected during the course of business is not
characterized as commercial merely on the basis that a company charges a fee
for its services. Similarly, an entire data record may not be characterized as
technical simply because it includes some technical instructions (see Information
Commissioner of Canada v Canadian Transportation Accident Investigation and
Safety Board, 2006 FCA 157, [2006] FCJ No 704 at paragraphs 69 and 70).
[61]
In
the case at bar, the applicant did not elaborate on its submission that the
information was commercial or technical. Its bald assertion that the
information does meet this characterization is not sufficient to discharge its
burden of proof on the standard of the balance of probabilities.
[62]
Extensive
jurisprudence has developed on the second condition required under paragraph
20(1)(b) of the ATIA: namely the issue of confidentiality. In Canada
(Health) v Merck Frosst Canada Ltd, 2009 FCA 166, [2009] FCJ No 627,
Madam Justice Desjardins explained that to meet this condition, the information
must be “confidential by its intrinsic nature” which will depend on its
content, purpose and the circumstances in which it is compiled and communicated
(paragraph 65). This requires that:
1. The content not be
available from other publicly available sources or by independent observation
or study by a member of the public;
2. The information was
communicated in a reasonable expectation of confidence; and
3. The information was
communicated in a relationship between the government and the party supplying
it and this relationship will be fostered for the public benefit by
confidential communication.
[63]
Further,
the party objecting to the disclosure of the records must provide “actual
direct evidence” of its confidential nature. Vague or speculative evidence
cannot be relied upon (see Merck (FCA) above, at paragraph 65).
[64]
In
the case at bar, the applicant submits that the documents inherently contain
information that meets all of the conditions under paragraph 20(1)(b) of the
ATIA. However, I agree with the respondents that the applicant’s submissions do
not provide adequately clear and direct evidence identifying specific portions
of the documents to support its position and discharge its burden of proof. The
redacted documents are clearly audit reports completed by the Board. Although
the audit team’s findings presented therein are based in part on information
supplied by the applicant, the documents do not, in themselves, replicate that
information.
[65]
The
ICC’s submission on the public interest is also pertinent. The public has an
important interest in knowing both whether third parties who receive benefits
from the government through licenses to operate comply with the associated
conditions and whether the government is fulfilling its mandate in promoting
safety and environmental protection at these operations. Safety and
environmental audits serve as an important tool in public disclosure of these
commitments. This is further support for public disclosure of the documents.
[66]
The
applicant also submits that the documents should be exempted from disclosure on
the basis of section 19 of the ATIA. This provision prohibits the government
from disclosing records that contain personal information. However, this
exemption provision must be read in conjunction with section 25 of the ATIA,
which provides that: “… the head of the institution shall disclose any part of
the record that does not contain, and can reasonably be severed from any part
that contains, any such information or material.” In the case at bar, the Board
removed all personal information on the applicant’s personnel from the
documents. Therefore, the remaining material, namely the redacted documents,
should be disclosed in accordance with section 25 of the ATIA.
[67]
In
summary, I am unable to conclude that the Board’s decision was incorrect. As I
have found no error with the Board’s decision, I find no basis on which to
grant the applicant the relief sought. This application is dismissed with costs
and the redacted documents released to the requestor.
JUDGMENT
THIS COURT’S
JUDGMENT is that the applicant’s application is
dismissed with costs and the redacted documents shall be released to the
requestor.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Access to Information Act, RSC 1985, s A-1
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16.1 (1) The
following heads of government institutions shall refuse to disclose any
record requested under this Act that contains information that was obtained
or created by them or on their behalf in the course of an investigation,
examination or audit conducted by them or under their authority:
(a) the
Auditor General of Canada;
(b) the
Commissioner of Official Languages for Canada;
(c) the
Information Commissioner; and
(d) the
Privacy Commissioner.
(2) However,
the head of a government institution referred to in paragraph (1)(c) or (d)
shall not refuse under subsection (1) to disclose any record that contains
information that was created by or on behalf of the head of the government
institution in the course of an investigation or audit conducted by or under
the authority of the head of the government institution once the
investigation or audit and all related proceedings, if any, are finally
concluded.
19. (1) Subject
to subsection (2), the head of a government institution shall refuse to
disclose any record requested under this Act that contains personal
information as defined in section 3 of the Privacy Act.
(2) The
head of a government institution may disclose any record requested under this
Act that contains personal information if
(a) the
individual to whom it relates consents to the disclosure;
(b) the
information is publicly available; or
(c) the
disclosure is in accordance with section 8 of the Privacy Act.
20. (1) Subject
to this section, the head of a government institution shall refuse to
disclose any record requested under this Act that contains
. . .
(b) financial,
commercial, scientific or technical information that is confidential
information supplied to a government institution by a third party and is
treated consistently in a confidential manner by the third party; . . .
(c) information
the disclosure of which could reasonably be expected to result in material
financial loss or gain to, or could reasonably be expected to prejudice the
competitive position of, a third party; or
(d) information
the disclosure of which could reasonably be expected to interfere with
contractual or other negotiations of a third party.
24. (1) The
head of a government institution shall refuse to disclose any record
requested under this Act that contains information the disclosure of which is
restricted by or pursuant to any provision set out in Schedule II.
25. Notwithstanding
any other provision of this Act, where a request is made to a government
institution for access to a record that the head of the institution is
authorized to refuse to disclose under this Act by reason of information or
other material contained in the record, the head of the institution shall
disclose any part of the record that does not contain, and can reasonably be
severed from any part that contains, any such information or material.
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, . . .
(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.
29. (1) Where
the head of a government institution decides, on the recommendation of the
Information Commissioner made pursuant to subsection 37(1), to disclose a
record requested under this Act or a part thereof, the head of the
institution shall give written notice of the decision to
(a) the
person who requested access to the record; and
(b) any
third party that the head of the institution has notified under subsection
27(1) in respect of the request or would have notified under that subsection
if the head of the institution had at the time of the request intended to
disclose the record or part thereof.
44. (1) Any
third party to whom the head of a government institution is required under
paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to
disclose a record or a part thereof under this Act may, within twenty days
after the notice is given, apply to the Court for a review of the matter.
47. (1) In
any proceedings before the Court arising from an application under section
41, 42 or 44, the Court shall take every reasonable precaution, including,
when appropriate, receiving representations ex parte and conducting hearings
in camera, to avoid the disclosure by the Court or any person of
(a) any
information or other material on the basis of which the head of a government
institution would be authorized to refuse to disclose a part of a record
requested under this Act; or
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16.1 (1) Sont
tenus de refuser de communiquer les documents qui contiennent des
renseignements créés ou obtenus par eux ou pour leur compte dans le cadre de
tout examen, enquête ou vérification fait par eux ou sous leur
autorité :
a) le
vérificateur général du Canada;
b) le
commissaire aux langues officielles du Canada;
c) le
Commissaire à l’information;
d) le
Commissaire à la protection de la vie privée.
(2) Toutefois,
aucun des commissaires mentionnés aux alinéas (1)c) ou d) ne peut s’autoriser
du paragraphe (1) pour refuser de communiquer les documents qui contiennent
des renseignements créés par lui ou pour son compte dans le cadre de toute
enquête ou vérification faite par lui ou sous son autorité une fois que
l’enquête ou la vérification et toute instance afférente sont terminées.
19. (1) Sous
réserve du paragraphe (2), le responsable d’une institution fédérale est tenu
de refuser la communication de documents contenant les renseignements
personnels visés à l’article 3 de la Loi sur la protection des
renseignements personnels.
(2) Le
responsable d’une institution fédérale peut donner communication de documents
contenant des renseignements personnels dans les cas où :
a) l’individu
qu’ils concernent y consent;
b) le
public y a accès;
c) la
communication est conforme à l’article 8 de la Loi sur la protection des
renseignements personnels.
20. (1) Le
responsable d’une institution fédérale est tenu, sous réserve des autres
dispositions du présent article, de refuser la communication de documents contenant
:
. .
.
b) des
renseignements financiers, commerciaux, scientifiques ou techniques fournis à
une institution fédérale par un tiers, qui sont de nature confidentielle et
qui sont traités comme tels de façon constante par ce tiers; . . .
c) des
renseignements dont la divulgation risquerait vraisemblablement de causer des
pertes ou profits financiers appréciables à un tiers ou de nuire à sa
compétitivité;
d) des
renseignements dont la divulgation risquerait vraisemblablement d’entraver
des négociations menées par un tiers en vue de contrats ou à d’autres fins.
24. (1) Le
responsable d’une institution fédérale est tenu de refuser la communication
de documents contenant des renseignements dont la communication est
restreinte en vertu d’une disposition figurant à l’annexe II.
25. Le
responsable d’une institution fédérale, dans les cas où il pourrait, vu la
nature des renseignements contenus dans le document demandé, s’autoriser de
la présente loi pour refuser la communication du document, est cependant
tenu, nonobstant les autres dispositions de la présente loi, d’en communiquer
les parties dépourvues des renseignements en cause, à condition que le
prélèvement de ces parties ne pose pas de problèmes sérieux.
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 :
. .
.
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.
29. (1) Dans
les cas où, sur la recommandation du Commissaire à l’information visée au
paragraphe 37(1), il décide de donner communication totale ou partielle d’un
document, le responsable de l’institution fédérale transmet un avis écrit de
sa décision aux personnes suivantes :
a) la
personne qui en a fait la demande;
b) le
tiers à qui il a donné l’avis prévu au paragraphe 27(1) ou à qui il l’aurait
donné s’il avait eu l’intention de donner communication totale ou partielle
du document.
44. (1) Le
tiers que le responsable d’une institution fédérale est tenu, en vertu de
l’alinéa 28(1)b) ou du paragraphe 29(1), d’aviser de la communication totale
ou partielle d’un document peut, dans les vingt jours suivant la transmission
de l’avis, exercer un recours en révision devant la Cour.
47. (1) À
l’occasion des procédures relatives aux recours prévus aux articles 41, 42 et
44, la Cour prend toutes les précautions possibles, notamment, si c’est
indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en
l’absence d’une partie, pour éviter que ne soient divulgués de par son propre
fait ou celui de quiconque :
a) des
renseignements qui, par leur nature, justifient, en vertu de la présente loi,
un refus de communication totale ou partielle d’un document;
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Canada-Newfoundland
Atlantic Accord Implementation Act,
SC 1987, c 3
|
119.(2) Subject
to section 18 and this section, information or documentation provided for the
purposes of this Part or Part III or any regulation made under either Part,
whether or not such information or documentation is required to be provided
under either Part or any regulation made thereunder, is privileged and shall
not knowingly be disclosed without the consent in writing of the person who
provided it except for the purposes of the administration or enforcement of
either Part or for the purposes of legal proceedings relating to such administration
or enforcement.
(3) No
person shall be required to produce or give evidence relating to any
information or documentation that is privileged under subsection (2) in
connection with any legal proceedings, other than proceedings relating to the
administration or enforcement of this Part or Part III.
. . .
(5) Subsection
(2) does not apply to the following classes of information or documentation
obtained as a result of carrying on a work or activity that is authorized
under Part III, namely, information or documentation in respect of
(a) an
exploratory well, where the information or documentation is obtained as a
direct result of drilling the well and if two years have passed since the
well termination date of that well;
(b) a
delineation well, where the information or documentation is obtained as a
direct result of drilling the well and if the later of
(i) two
years since the well termination date of the relevant exploratory well, and
(ii) ninety
days since the well termination date of the delineation well, have passed;
(c) a
development well, where the information or documentation is obtained as a
direct result of drilling the well and if the later of
(i) two
years since the well termination date of the relevant exploratory well, and
(ii) sixty
days since the well termination date of the development well, have passed;
(d) geological
work or geophysical work performed on or in relation to any portion of the
offshore area,
(i) in
the case of a well site seabed survey where the well has been drilled, after
the expiration of the period referred to in paragraph (a) or the later period
referred to in subparagraph (b)(i) or
(ii) or (c)(i)
or (ii), according to whether paragraph (a), (b) or (c) is applicable in
respect of that well, or
(ii) in
any other case, after the expiration of five years following the date of
completion of the work;
(e) any
engineering research or feasibility study or experimental project, including
geotechnical work, carried out on or in relation to any portion of the offshore
area,
(i) where
it relates to a well and the well has been drilled, after the expiration of
the period referred to in paragraph (a) or the later period referred to in
subparagraph (b)(i) or (ii) or (c)(i) or (ii), according to whether paragraph
(a), (b) or (c) is applicable in respect of that well, or
(ii) in
any other case, after the expiration of five years following the date of
completion of the research, study or project or after the reversion of that
portion of the offshore area to Crown reserve areas, whichever occurs first;
(f) any
contingency plan formulated in respect of emergencies arising as a result of
any work or activity authorized under Part III;
(g) diving
work, weather observation or the status of operational activities or of the
development of or production from a pool or field;
(g.1) accidents,
incidents or petroleum spills, to the extent necessary to permit a person or
body to produce and to distribute or publish a report for the administration
of this Act in respect of the accident, incident or spill;
(h) any
study funded from an account established under subsection 76(1) of the Canada
Petroleum Resources Act, if the study has been completed; and
(i) an
environmental study, other than a study referred to in paragraph (h),
(i) where
it relates to a well and the well has been drilled, after the expiration of
the period referred to in paragraph (a) or the later period referred to in
subparagraph (b)(i) or (ii) or (c)(i) or (ii), according to whether paragraph
(a), (b) or (c) is applicable in respect of that well, or
(ii) in
any other case, if five years have passed since the completion of the study.
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119.(2) Sous
réserve de l’article 18 et des autres dispositions du présent article, les
renseignements fournis pour l’application de la présente partie, de la partie
III ou de leurs règlements, sont, que leur fourniture soit obligatoire ou
non, protégés et ne peuvent, sciemment, être communiqués sans le consentement
écrit de la personne qui les a fournis, si ce n’est pour l’application de ces
lois ou dans le cadre de procédures judiciaires relatives intentées à cet
égard.
(3) Nul
ne peut être tenu de communiquer les renseignements protégés au titre du
paragraphe (2) au cours de procédures judiciaires qui ne visent pas
l’application de la présente partie ou de la partie III.
. . .
(5) Le
paragraphe (2) ne vise pas les catégories de renseignements provenant
d’activités autorisées sous le régime de la partie III et relatives à :
a) un
puits d’exploration, si les renseignements proviennent effectivement du
forage du puits et si deux ans se sont écoulés après la date d’abandon du
forage;
b) un
puits de délimitation, s’ils proviennent du forage du puits et une fois
écoulée la dernière des périodes suivantes, à savoir deux ans après la date
d’abandon du forage du puits d’exploration en cause ou quatre-vingt-dix jours
après la date d’abandon du forage du puits de délimitation;
c) un
puits d’exploitation, s’ils proviennent effectivement du forage du puits et
une fois écoulée la dernière des périodes suivantes, à savoir deux ans après
la date d’abandon du puits d’exploration en cause ou soixante jours après la
date d’abandon du forage du puits d’exploitation;
d) des
travaux de géologie ou de géophysique exécutés dans telle partie de la zone
extracôtière ou y ayant trait :
(i) s’agissant
d’un levé marin pour un puits foré, après la période visée à l’alinéa a) ou
la dernière des périodes visées aux alinéas b) ou c), selon l’alinéa qui
s’applique au puits en cause,
(ii) par
ailleurs, au plus tôt cinq ans après leur achèvement;
e) des
recherches ou études techniques ou des opérations expérimentales, y compris
des travaux de géotechnique, exécutés dans telle partie de la zone
extracôtière ou y ayant trait :
(i) si
elles portent sur un puits foré après l’expiration de la période visée à
l’alinéa a) ou la dernière des périodes visées aux alinéas b) ou c), selon
l’alinéa qui s’applique au puits en cause,
(ii) par
ailleurs, au plus tôt cinq ans après leur achèvement ou après que ces terres
sont devenues réserves de l’État;
f) un
plan visant les situations d’urgence résultant d’activités autorisées sous le
régime de la partie III;
g) des
travaux de plongée, des observations météorologiques, l’état d’avancement des
travaux, l’exploitation ou la production d’un gisement ou d’un champ;
g.1) des
accidents, des incidents ou des écoulements de pétrole dans la mesure où ces
renseignements sont nécessaires pour l’établissement et la publication d’un
rapport à cet égard dans le cadre de la présente loi;
h) des
études achevées financées sur le compte ouvert au titre du paragraphe 76(1)
de la Loi fédérale sur les hydrocarbures;
i) d’autres
types d’études de l’environnement :
(i) s’agissant
d’un puits foré, après l’expiration de la période visée à l’alinéa a) ou de
la dernière des périodes visées aux alinéas b) ou c), selon l’alinéa qui
s’applique au puits en cause,
(ii) par
ailleurs, lorsque cinq ans se sont écoulés depuis leur achèvement.
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Interpretation
Act, RSC 1985, c I-21
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12. Every
enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its
objects.
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12. Tout
texte est censé apporter une solution de droit et s’interprète de la manière
la plus équitable et la plus large qui soit compatible avec la réalisation de
son objet.
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