Date: 20090928
Docket: T-1363-08
Citation:
2009 FC 974
Ottawa, Ontario, September 28, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
OCEANS
LIMITED
Applicant
and
CANADA-NEWFOUNDLAND AND
LABRADOR OFFSHORE PETROLEUM BOARD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 44(1) of the Access to Information
Act, R.S.C., 1985, c. A-1 (Act) for judicial review of a decision of the
Canada-Newfoundland and Labrador Offshore Petroleum Board (Respondent or Board),
dated August 12, 2008 (Decision), to release information in response to a
request for information under the Act.
BACKGROUND
[2]
On
or about June 5, 2008, the Respondent received an Access to Information Request
Form pursuant to the Act which requested the following:
A copy of any and all correspondence
between the Canada-Newfoundland & Labrador Offshore Petroleum Board,
regarding the contract award of weather forecasting to AMEC Earth &
Environmental by Chevron Canada Limited. We would also make specific reference
in our request to a letter written by Mrs. Judith Bobbit of Ocean Ltd. on 16
August 2006, which letter contained allegations made against Mr. Gordon Mellis
regarding his qualifications and his review of a bid submitted by Oceans Ltd. on
the above noted contract.
[3]
The
documents in dispute in this case are a series of letters written by the
Applicant to the Respondent, and replies thereto, regarding a complaint made by
the Applicant about a bid on the Chevron Tender for which the Applicant was not
successful.
[4]
The
Respondent informed the Applicant of the information request and invited a
reply to the request. The Applicant informed the Respondent that it did not
consent to the request, and cited subsection 20(1) of the Act to prevent
disclosure. After
considering the Applicant’s response, the Respondent made the decision to
release a copy of all seven documents that met the criteria of the request
based on the determination that these documents did not fit within the exemptions
contained in subsection 20(1) of the Act. The Respondent notified the Applicant
of this decision.
[5]
The
Applicant then made this application pursuant to section 44 of the Act, seeking
an order that the Respondent not disclose any of the Applicant’s
correspondence, documentation or information.
DECISION UNDER REVIEW
[6]
Mr.
Baker, on behalf of the Respondent, informed the Applicant that insufficient
cause existed for the Respondent to deny the release of the requested
information to the requestor. In his letter, Mr. Baker canvassed subsection
20(1) of the Act and explained why the Applicant’s claim must fail.
[7]
First
of all, the Respondent contended that subsection 20(1)(a) was
inapplicable in this case, since the Applicant had not claimed an exemption
under this section.
[8]
In
consideration of subsection 20(1)(b), the Respondent set out the factors
to be met in order to rely on this exemption, and determined that the Applicant
had not adequately met the required onus to demonstrate that any financial,
commercial, scientific or technical information was present in the records. As
for confidentiality, the Respondent noted that the test to be used is an objective
one and that the Applicant’s correspondence did not contain any indication or
markings that confidentiality was intended to apply. What is more, the
Respondent noted, the subject matter of the correspondence had already been
publicly disclosed by the Applicant.
[9]
The
Respondent found that the Applicant’s claim under subsection 20(1)(c) had
not met the required threshold of a reasonable expectation of probable harm. The
Respondent found that the Applicant had simply speculated that harm was a
possibility. The Respondent noted that even if the actions speculated by the
Applicant took place the negative result contemplated by the Applicant was
still not certain to occur. Consequently, the Applicant had failed to meet the
test for a reasonable expectation of probable harm.
[10]
Finally,
in consideration of subsection 20(1)(d), the Respondent found that the
Applicant had not shown an obstruction in actual negotiations that would give
rise to a reasonable expectation of harm. While the Applicant indicated that
harm was possible, the Respondent was not convinced that such harm was
probable.
[11]
Since
the Applicant had failed to prove that the documents fell under the exceptions
listed in subsection 20(1) of the Act, the Respondent found that there was
insufficient cause to deny the release of information to the requestor.
ISSUES
[12]
The
Applicant has raised the following issues:
1)
Are the
documents identified by the Respondent exempt from disclosure pursuant to subsection
20(1) of the Act?
2)
Does the
principle of a reasonable apprehension of bias apply to this case?
3)
If the
principle of a reasonable apprehension of bias applies, does it require that
the identified documents not be disclosed?
STATUTORY PROVISIONS
|
Purpose
2. (1) The purpose of this Act is to extend the
present laws of Canada to provide a right of access to information in records
under the control of a government institution in accordance with the
principles that government information should be available to the public,
that necessary exceptions to the right of access should be limited and
specific and that decisions on the disclosure of government information
should be reviewed independently of government.
…
Third party information
20. (1) Subject to this section, the head of a
government institution shall refuse to disclose any record requested under
this Act that contains
(a)
trade secrets of a third party;
(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.
|
Objet
2. (1) La présente loi a pour objet d’élargir l’accès aux documents
de l’administration fédérale en consacrant le principe du droit du public à
leur communication, les exceptions indispensables à ce droit étant précises
et limitées et les décisions quant à la communication étant susceptibles de
recours indépendants du pouvoir exécutif.
…
Renseignements
de tiers
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 :
a) des secrets
industriels de tiers;
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.
|
STANDARD OF REVIEW
[13]
Judicial
review under section 44 of the Act consists of the Court conducting a de
novo review of the records in question: Toronto Sun Wah Trading Inc. v.
Canada (Attorney General), 2007 FC 1091, 62 C.P.R. (4th) 337 (Toronto
Sun Wah). As such, the appropriate standard of review in this case is one
of correctness and the Court owes no deference to the decision made by the
Board.
ARGUMENTS
The Applicant
[14]
The
Applicant submits that each of the seven documents identified by the Respondent
for disclosure should be examined individually to determine whether or not they
should be disclosed. However, the Applicant submits that it is also necessary
to view each document in context. The Applicant cites and relies on Canada
Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 for the
proposition that “it is necessary to view each report in the context of other
reports requested for release with it, as the total contents of a release are
bound to have considerable bearing on the reasonable consequences of its
disclosure.”
[15]
The
Applicant notes that the exemptions contained in subsection 20(1) of the Act
are mandatory. Accordingly, once it is determined that a particular document
contains information of the nature listed in 20(1)(a)-(d), an
order should be made that a document should not be disclosed: Canadian
Jewish Congress v. Canada (Minister of Employment
and Immigration), [1996] 1 F.C. 268 at paragraph 22.
[16]
The
Applicant canvasses each of the documents identified by the Board, and
discusses the relation of each piece of information to subsection 20(1) of the
Act through the affidavit evidence provided by Ms. Bobbit, who is President of
the Applicant.
Letter dated
July 25 from Applicant to Respondent
[17]
The
Applicant submits that, although this letter in its entirety should not be
disclosed, paragraphs two and three (which discuss the differences between
weather forecasting and weather observing) fall squarely under subsections 20(1)(b)
and 20(1)(d) of the Act.
[18]
The
Applicant submits that in these paragraphs the Applicant has set out its view
regarding the technical differences between its approach to bidding for weather
observing and weather forecasting. The Applicant says that the knowledge it has
acquired of the processes used in forecasting and monitoring is critical to the
commercial success of the Applicant, and is essential to the Applicant’s
business operations. Moreover, the Applicant suggests that disclosure of this
information would cause harm to the Applicant, since it would allow a third
party to adjust future bids accordingly to the Applicant’s detriment.
[19]
The
fifth paragraph of the same letter contains information regarding a
sub-contractor who had been retained by the Applicant.
[20]
This
paragraph identifies the relationship that the Applicant has with a particular
sub-contractor. The Applicant says that including a specific sub-contractor in
the bid is a practice that is unique to the Applicant. The Applicant further
holds that the disclosure of the relationship between the Applicant and the
sub-contractor will cause the Applicant to be disadvantaged on future bids, and
will cause damage to the relationship between the Applicant and the
sub-contractor. The Applicant contends that due to the harm which would occur
in future bids, this information falls under the exemption found in subsection
20(1)(c).
[21]
The
Applicant submits that the information contained in paragraph five is an
example of commercial information that is specific to the Applicant’s
operational processes, and is therefore within the ambit of subsection 20(1)(b).
The Applicant also contends that this paragraph contains information about cost
and pricing that is not shared with competitors. The disclosure of this
information would improve the competitive position of commercial competitors,
including AMEC Earth and Environmental.
[22]
The
sixth paragraph of the July 25, 2006 letter also makes reference to the
sub-contractor.
[23]
Again,
this paragraph contains a specific reference to the identity of the
sub-contractor, and the relationship between the Applicant and the
sub-contractor, that should not be disclosed. The inclusion of a specified
sub-contractor in a bid is unique to the Applicant, and is commercial information
that would not normally be given to a third party. Accordingly, the Applicant
contends that this information falls under subsection 20(1)(b) of the
Act.
[24]
The
Applicant submits that the ninth paragraph of this letter contains technical
information which would cause harm to the Applicant and should not be
disclosed.
[25]
The
information that the weather forecasting component of the Scope of Work for the
Chevron Tender was focused on saving drilling time is specific information
related to the Applicant’s approach to bidding. The Applicant holds that this
strategic and technical approach to bidding is never disclosed to competitors,
and that its disclosure is likely to cause an unfair commercial advantage to
competitors and be economically damaging to the Applicant. Moreover, the
Applicant submits that it is a reasonable expectation that it should be able to
provide such information to the industry regulator without fear that this
information would be disclosed to third parties.
Letter dated
July 26 from Respondent to Applicant
[26]
The
Applicant has no specific objection to the production of this document.
Letter dated
August 11 from Respondent to Applicant
[27]
The
Applicant submits that the disclosure of this letter would cause harm to the
Applicant in the marketplace because of the inaccuracies it contains.
Specifically, this letter claims that “no bidders asked any questions with
respect to the bid prior to its closing.” However, the Affidavit of Judith
Bobbit states that the Applicant complained that the review made by the Respondent
was not full and proper, and that there were factual inaccuracies in Mr.
Smyth’s letter. The Applicant submits that the disclosure of this inaccurate
record could cause financial loss to the Applicant or damage its competitive
position or reputation.
Letter dated
August 16 from Applicant to Respondent
[28]
The
Applicant submits that this letter should not be disclosed because it contains
a reference to the sub-contractor in paragraph two.
[29]
Again,
the Applicant submits that the inclusion of a specific sub-contractor in a bid
is unique to the Applicant and that the disclosure of this information would
cause the Applicant to be disadvantaged on future bids.
Letter dated September
1 from the Respondent to the Applicant
[30]
The
Applicant submits that this letter in its entirety would cause harm to the
Applicant if disclosed, since it infers that there was no basis for the
Applicant’s complaint to the Board. The Applicant says that this letter is
inaccurate, and contains both an erroneous assumption and an erroneous conclusion.
Accordingly, the Applicant contends that its disclosure may serve to negatively
impact the reputation of the Applicant with existing or future clients. Consequently,
the Applicant submits that subsection 20(1)(d) applies, and this letter should
not be disclosed.
Letter dated
October 17 from the Applicant to the Respondent
[31]
The
Applicant submits that the second paragraph of this letter includes technical
information unique to the Applicant that highlights the differences between
weather forecasting and weather observing. The Applicant believes this
information is not recognized by some of its competitors and that its
disclosure would allow a third party to adjust future bids to the detriment of
the Applicant. What is more, this paragraph includes a reference to the
Applicant’s approach to costing services. The Applicant holds that such
information is considered highly confidential and that this type of trade
secret should not be disclosed to a third party without the Applicant’s consent.
Based on the exemptions set out in subsections 20(1)(b) and 20(1)(c)
of the Act, the information should not be disclosed.
[32]
Moreover
there is another reference in this paragraph to the sub-contractor used by the
Applicant. The disclosure of this information to a third party is likely to
disadvantage the Applicant in future bids, since it will allow a third party to
adjust its bid or its approach to bidding. Thus, the Applicant submits that the
exemptions set out in subsection 20(1)(b)-(d) apply.
[33]
The
Applicant also submits that paragraph five of this letter contains specific
information about pricing and costing the disclosure of which would harm the Applicant
on future bids. The Applicant contends that such information falls under
subsections 20(1)(b)-(c) of the Act.
Letter dated November
10 from the Respondent to the Applicant
[34]
The
Applicant makes no specific objection to the contents of this letter. However,
since the Board regulates the oil exploration industry of Newfoundland and Labrador, the
Applicant believes that disclosure of this letter may negatively impact the
Applicant’s reputation with existing and potential clients. Accordingly, the
Applicant relies on subsection 20(1)(c) of the Act in requesting that
this letter not be disclosed. Moreover, the Applicant submits that it should
reasonably be able to expect that its correspondence with the Board would not
be disclosed to third parties
Summary
[35]
The
Applicant submits that it has discharged the burden of proof in demonstrating
why each letter should be exempted from disclosure. The Applicant believes it
has shown a reasonable probability of harm if these documents are disclosed to
third parties and competitors. Additionally, the Applicant submits that no
contrary evidence has been provided to rebut its evidence on the positions put
forward in this application.
[36]
What
is more, the Applicant submits that, in reviewing the Applicant’s request, the Respondent
did not appropriately consider the significant implications of the disclosure,
either by law or by its own policy. Nor did the Respondent properly consider
the sensitive nature of the materials and information contained within the
record. In addition, the Applicant contends that the Respondent did not
properly consider whether the sensitive material included in this
correspondence could be severed from the disclosed documents.
Reasonable
Apprehension of Bias
[37]
The
Applicant further submits that the documents should not be disclosed because
there is a reasonable apprehension of bias by the Respondent in its decision to
disclose these documents.
[38]
The
appropriate test for a reasonable apprehension of bias was set out by the
Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National
Energy Board), [1978] 1 S.C.R. 369: “What would an informed person,
viewing the matter realistically and practically…conclude?”
[39]
The
Applicant believes that the Respondent’s decision to disclose the documents was
biased by the participation of the Chairman and CEO of the Respondent, Mr. Max
Ruelokke, in the determination process. The Applicant submits that Mr. Ruelokke
was General Manager of AMEC Americas Limited before starting his employment
with the Respondent and that AMEC Earth & Environmental is a division of
that company.
[40]
In
addition, the Applicant opposed the appointment of Mr. Ruelokke to his position
on the Board, and it was later made known that the Applicant’s opposition to
this appointment was known by Board officials or employees.
[41]
Based
on a Court finding that Mr. Ruelokke had been the “de facto Chair and CEO of
the Board since the panel made its selection on December 5, 2005,” (see Ruelokke
v. Newfoundland and Labrador (Minister of Natural Resources), [2006] N.J.
No. 228 at paragraph 11) the Applicant submits that during December 2005 to
April 2006, while the Applicant was participating in the bidding process for
the contract that was awarded to AMEC Earth and Environmental, Mr. Ruelokke was
employed by AMEC.
[42]
Considering
his past employment connection with the successful contract bidder, the
Applicant suggests that Mr. Ruelokke’s involvement in reviewing the Applicant’s
complaint tainted the objectivity and independence of the review. The Applicant
submits that a reasonably informed person would see Mr. Ruelokke’s involvement
as creating a reasonable apprehension of bias, since his former employer was in
direct competition with the Applicant.
[43]
Moreover,
the Applicant contends that it was entitled to a fresh, untainted, independent
review of the documents in questions, and that Mr. Ruelokke’s participation in
the process denied the Applicant its right to procedural fairness. In Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners
of Public Utilities), [1992] 1 S.C.R. 623, 89 D.L.R.(4th)
289, the Supreme Court of Canada found that an unbiased appearance is an
essential part of the duty of procedural fairness. The Applicant submits that
an essential component of procedural fairness is missing in this case: Mr.
Ruelokke’s participation in the process means that it cannot be said that there
was an unbiased appearance in the Decision of the Respondent to disclose the
documents.
[44]
The
Applicant cites and relies on Szilrd v. Szasz, [1955] 3 S.C.R. 3 at paragraph
4, for the proposition that “each party, acting reasonably, is entitled to a
sustained confidence in the independence of mind of those who are to sit in
judgment on him and his affairs.” The Applicant submits that, in this case, it
did not receive a sustained independence of mind of those who judged of its
affairs. As a result of Mr. Ruelokke’s current position with the Board, he is now
in a position to benefit his previous employer. Additionally, the Applicant
finds the comments made by Mr. Smyth about the Applicant’s opposition to Mr.
Ruelokke’s appointment call into question the independence of the Respondent in
its Decision to release the documents. As such, the Applicant submits that the
duty of procedural fairness has been breached.
Other
Concerns
[45]
The
Applicant feels that it is also apparent that its opposition to Mr. Ruelokke’s Board
appointment was known by the Respondent’s employees, as was indicated during
the complaint and review process when a Board member, Mr. Smyth, said the
Applicant “should not have opposed the appointment of Mr. Ruelokke as Chairman
and CEO of the Board.”
[46]
Additionally,
the Applicant submits that the portion of the information request describing its
August 16, 2006 letter as making allegations against Mr. Mellis is also a cause
for concern. The Applicant is concerned about how the requestor acquired the
knowledge that such a letter existed, and contends that this information must
have been leaked from someone within the Board.
[47]
Moreover,
the Applicant finds it disconcerting that it is currently engaged in litigation
with AMEC Earth and Environmental with respect to contract work and that the
disclosure of this information could affect the lawsuit.
[48]
The
Applicant requests that the documents not be disclosed, but should the Court
find that disclosure is appropriate, the Applicant requests that the portions
of correspondence objected to by the Applicant be removed from the
correspondence prior to disclosure.
[49]
In
the alternative, the Applicant requests that these documents not be disclosed
due to a reasonable apprehension of bias surrounding the decision to disclose
and because the disclosure of these documents would breach the Applicant’s
right to procedural fairness and natural justice.
The Respondent
[50]
The
Respondent reminds the Court that it is the Applicant’s burden to establish
that the documents in question fit into one of the exemptions contained in subsection
20(1) of the Act. The Respondent contends that the Applicant has failed to
discharge this burden.
Section
20(1)(a)
[51]
Société
Gamma Inc. v. Canada (Department of Secretary of State), 79 F.T.R.
42, 27 Admin. L.R. (2d) 102 (Gamma), states at paragraph 7 that “a trade
secret must be something, probably of a technical nature, which is guarded very
closely and is of such peculiar value to the owner of the trade secret that
harm to him would be presumed by its mere disclosure.” The Respondent
disputes the Applicant’s allegation that the information highlighting the
differences between weather forecasting and weather monitoring is a trade
secret. While the knowledge of the difference between weather forecasting and
weather monitoring may be critical to the Applicant, this information is not
unique to the Applicant. In fact, the Respondent points out that a lay person understands
the difference between forecasting (which is projecting into the future) and
observing (which is monitoring the current situation). Consequently, these
terms and their use in the documents in question cannot be considered a trade
secret. Accordingly, the Applicant has not proven that subsection 20(1)(a)
applies to any of the documents in question.
Subsection
20(1)(b)
[52]
In
order to be exempt from disclosure under subsection 20(1)(b), 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 matter by the third party: Air
Atonabee Ltd. v. Canada (Minister of Transport), 27 F.T.R. 194, 37 Admin.
L.R. 245. It is the Applicant’s burden to show that the documents in question satisfy
all four criteria in order to be considered exempt under subsection 20(1)(b).
Financial,
Commercial, Scientific, or Technical
[53]
The
Respondent disputes the Applicant’s submission that there is information
contained in these documents related to costing and pricing. The Respondent submits
that these documents contain no pricing or costing information of the
Applicant.
[54]
Moreover,
the Respondent submits that the sub-contractor’s involvement in the tender is
not unique to the Applicant, and that the sub-contractor was already under a
pre-existing contract with Chevron for weather observing. Accordingly, the
Applicant’s reference to the sub-contractor in its bid is not unique to the
Applicant, and disclosure of this information will not prejudice the Applicant.
[55]
The
Respondent submits that the documents in question cannot be categorized as
being financial, commercial, scientific or technical in nature, regardless of
how the Applicant attempts to characterize them.
Confidentiality
[56]
If
the Court finds that the information in question is financial, commercial,
scientific or technical, then the Court must also consider if the information
is confidential. In deciding whether or not the information is confidential, the
Court must use an objective standard that considers the content of the
information, its purposes, and the conditions under which is was prepared and
communicated: Air Atonabee. The Respondent also submits that information
should not be considered confidential, even if considered so by a third party,
where it is available to the public from some other source: Canada Packers
as cited in Air Atonabee.
[57]
The
Respondent says that the information in the requested documents has not previously
been treated as confidential by the Applicant. Neither the Respondent nor the
Applicant’s correspondence was marked as confidential. What is more, the
Respondent notes that Ms. Bobbit has been outspoken in the media regarding the
Applicant’s dispute with the Respondent over its review of the Chevron Tender. In
fact, in one newspaper article Ms. Bobbit made reference to the July 25
correspondence, the August 11 correspondence, and the November 10
correspondence. As such, it is clear that the Applicant’s complaint to the
Respondent regarding the Chevron Tender was not kept confidential by the
Applicant, and is available in at least one public source – an article which
appeared in The Telegram on December 23, 2006. More specifically, the fact
that the contract dealt with both weather forecasting and weather observing is
available in the newspaper article, and accordingly has not been kept
confidential by the Applicant. The same is true of the fact that the Applicant
included both components of the bid in one price. Overall, the Respondent
submits that the content of the documents in question and, more importantly,
the overall context and background of the Applicant’s complaint to the
Respondent, is available to the public in the newspaper article. Accordingly,
this information cannot be characterized as confidential.
Supplied by a
Third Party
[58]
Under
subsection 20(1)(b) it is also necessary that the information the
Applicant seeks to have exempted must have been supplied by the Applicant to the
Respondent. However, the documents at issue contain information that comes from
sources other than the Applicant. As such, the information that was not
specifically supplied by the Applicant does not meet the third criterion under
subsection 20(1)(b).
Consistently
Treated As Confidential
[59]
It
is also a requirement under subsection 20(1)(b) that the information
must have been treated consistently as confidential by the Applicant. The
Respondent cites and relies on Toronto Sun Wah which found that “the party
seeking to exempt the information from disclosure must demonstrate that the
information has been treated consistently in a confidential manner with
evidence that goes beyond assertions.” The same problem arises in the present
case as was addressed in Toronto Sun Wah at paragraph 25:
There is an affidavit in which the Chief
Executive Officer of the applicant states that it was treated in a confidential
manner, but there is no indication of how this was done. There is no reference
to “confidential” on any of the invoices and no facts set out in the affidavit
to indicate how the applicant was consistently treating the information as
confidential.
[60]
The
Respondent submits that, as demonstrated by the newspaper article, the
documents in question have not been treated by the Applicant as confidential.
As such, the Respondent’s position is that the Applicant has failed to prove
that the documents should be exempted from the presumption of disclosure.
Subsections 20(1)(c)
and (d)
[61]
A
party seeking to prevent disclosure pursuant to these provisions needs to
establish a reasonable expectation of probable harm: Saint John Shipbuilding
Ltd. v. Canada (Minister of Supply and Services), 107 N.R. 89, 67
D.L.R. (4th) 315. This is a higher onus than speculation as to possible
harm. The Court in Saint John Shipbuilding found that “what the
Applicant has established…is a possibility of prejudice to its competitive
position. However, the possibility of prejudice to its competitive position
does not meet the test established…in Canada Packers.” The Respondent also
cites and relies on SNC Lavalin Inc. v. Canada (Minister
for International Co-operation), 2003 FCT 681, 234 F.T.R. 294 (SNC
Lavalin) at paragraph 36:
…the Applicant’s affiant attests, albeit
often in conditional language, to a reasonable expectation of financial loss
and prejudice to the competitive position of the Applicant if the records at
issue were disclosed. The conditional language used is critical. It is simply
not sufficient for the Applicant to establish that harm might result from the
disclosure. Speculation…does not meet the standard of reasonable expectation of
material financial loss or prejudice to the Applicant’s competitive position.
Subsection
20(1)(c)
[62]
The
Respondent submits that the Applicant’s affidavit does nothing more than
speculate about possible harm. The affidavit contains general statements, and uses
conditional language, which are unsupported by any evidence to show a
probability of harm or loss. The Applicant has failed to demonstrate that there
is a reasonable expectation of financial loss or competitive position.
[63]
Furthermore,
the Applicant must prove that any loss would be a result of the disclosure of the
documents. In this instance, the Applicant has disclosed much of the information
itself. As such, even if the Applicant could satisfy the test of probable harm,
such harm could just as likely be from the Applicant’s own disclosure of the content
of the documents to the media. For these reasons, the Applicant has not proven
that these documents, or portions thereof, should be excluded from disclosure
as per subsection 20(1)(c).
Subsection
20(1)(d)
[64]
For
an exemption under this subsection, the Applicant must show some obstruction or
thwarting of contractual negotiations. To be distinguishable from subsection
20(1)(c), this cannot simply be an increase in competition. According to
Gamma at paragraph 47, subsection 20(1)(d) “must refer to an
obstruction to those negotiations and not merely the heightening of competition
for the third party which might flow from disclosure.” The Applicant has not provided
any evidence to demonstrate that the release of the documents in question would
likely result in an interference with any specific negotiations. The Applicant
in this instance has failed to provide any evidence of specific harm. Accordingly,
the Applicant has failed to establish that subsection 20(1)(d) is
applicable in this case.
Reasonable
Apprehension of Bias
[65]
The
Respondent submits that the issue of a reasonable apprehension of bias is not
relevant to the Court’s determination of whether or not the documents should be
released under the Act. The Court is considering de novo whether the
documents should be released. Moreover, since Mr. Ruelokke was not involved in
the Respondent’s Decision to release the documents, there can be no reasonable
apprehension of bias. The Respondent submits that there is no evidence on which
an informed person, viewing the matter realistically and practically, could
conclude on a balance of probabilities that there is a suggestion of bias
within the Decision.
Bias and the
Act
[66]
The
Court cannot refuse the disclosure of the documents under the Act on the basis
of a reasonable apprehension of bias. If the Court were to make a finding of a
reasonable apprehension of bias, the remedy would be that the decision of the
Respondent to release the documents would be quashed and sent back to the Respondent
for reconsideration. Indeed, a reasonable apprehension of bias would not
prevent the Court from making its own determination on the disclosure of the
documents in question.
[67]
What
is more, section 2 of the Act clearly states that the general rule is
disclosure, and that there are only a few enumerated exceptions to this rule.
As such, if the Applicant fails to prove that the documents fall within subsection
20(1) of the Act, then the documents must be disclosed.
Access to
Information Determination
[68]
The
evidence clearly demonstrates that Mr. Ruelokke was not involved in the
determination of whether or not the documents should be released. What is more,
the Respondent has no knowledge of how the requestor obtained the specific
information regarding the letter written on August 16, 2006. Neither did Mr.
Baker, who testified in cross-examination that he did not know how this
information had been obtained by the requestor. However, based on the newspaper
article and the Applicant’s discussion with people involved with the Chevron
Tender, the Respondent believes that it is possible this information was
obtained through the Applicant.
[69]
Regardless,
the Respondent submits that the specific knowledge of the requestor did not
have an impact on the treatment of the request.
Investigation
of Chevron Tender
[70]
The
Respondent submits that Mr. Ruelokke’s involvement in the review of the
Applicant’s interactions with the Respondent does not give rise to a reasonable
apprehension of bias. What is more, at the time the Applicant’s complaint was
investigated, Mr. Ruelokke had not yet begun working for the Respondent. While
he was appointed to the Board on December 5, 2005, his appointment did not
become effective until October 26, 2006, and he did not begin working until
October 30, 2006.
[71]
Mr.
Ruelokke has made it clear that he was not involved in the operations of AMEC
Earth and Environment. Additionally, Mr. Ruelokke’s involvement with the
Applicant in this instance was limited to reviewing how his staff at the Board
handled the complaint.
[72]
The
Respondent submits that the Applicant’s allegation of an unjust investigation
stems from the fact that the result of the investigation was not favourable to
the Applicant. In this case, there is no evidence upon which an informed
person, viewing the matter realistically and practically, could conclude on a
balance of probabilities that there was a reasonable apprehension of bias in
regard to Mr. Ruelokke’s involvement with the matter of the Chevron Tender.
[73]
The
Applicant uses strong language in assessing Mr. Ruelokke’s alleged involvement
in this matter. The Respondent submits that such statements and allegations
should not be made lightly. These statements should be considered frivolous and
vexatious because they are not supported by any cogent evidence.
[74]
If
the Court determines that the Respondent’s Decision to release the documents was
correct, then the Court must uphold the Decision, notwithstanding any complaint
the Applicant may have in regard to the decision-making process.
[75]
The
Respondent requests that the Court affirm that the documents in question do not
fall within the statutory exemptions listed in subsection 20(1) of the Act, and
that they should be disclosed to the requestor. The Respondent also requests
costs for this application.
ANALYSIS
General
[76]
Subsection
2(1) of the Act and the relevant jurisprudence make it clear that, as a general
principle, government information should be made available to the public and
that any exceptions are limited. What is more, any doubt about what should be
released should be resolved in favour of release and the burden of persuasion
rests upon the party resisting disclosure. See Toronto Sun Wah at
paragraph 8.
[77]
This
means that the documents and/or information at issue in this case must be
disclosed unless the Applicant can demonstrate that they fall within one or
more of the exemptions set out in subsection 2(1) of the Act.
[78]
It
is also clear that an appeal to this Court by way of section 44 of the Act is de
novo and that the Court is not required to assess the Decision of the
Respondent with the deference that arises in the usual case of judicial review (see
Toronto Sun Wah at paragraph 11.)
Apprehension
of Bias
[79]
In
addition to specific exemptions raised in subsection 20(1) of the Act, the
Applicant has also raised a reasonable apprehension of bias as a ground for the
Court to decide the disclosure issue in its favour. Quite apart from the fact
that, upon review of the evidence, I do not believe that the Applicant can
establish a reasonable apprehension of bias in accordance with the well-known
principles set out by the Supreme Court of Canada in Committee for Justice
and Liberty at page 17, the fact that I am considering this matter de
novo, and that I am not reviewing the Decision of the Respondent under
normal principles of judicial review, means that the bias issue is, in my view,
irrelevant to the decision I have to make about whether the documents and
information in question qualify under any of the subsection 2(1) exemptions.
Consequently, I see no need to address the apprehension of bias allegations in any
detail.
The Documents
in Question
1.
Letter
dated July 25, 2006 from Judith Bobbit, President of Oceans Ltd. to Frank
Smyth, Manager, Industrial Benefits of Canada – Newfoundland and Labrador Offshore
Petroleum Board.
[80]
The
Applicant says that the information contained in this letter about “the technical
differences between the approach to bidding on the weather observing and
weather forecasting components of the work on which Oceans (the Applicant) bid”
falls within the exemptions contained in subsections 20(1)(b) and 20(1)(d)
of the Act. The Applicant also says that the letter contains information about
“bidding on work in the offshore” that is never disclosed to competitors and
the disclosure of which will cause economic loss and create an unfair
commercial advantage for competitors. The Applicant says that this type of
information also falls within the subsection 20(1)(b) exemption.
[81]
The
Applicant also says that this letter contains specific information about the
identity and relationship that the Applicant has with a particular
sub-contractor, the disclosure of which will cause the Applicant to be
disadvantaged on future bids, and which will cause damage to the Applicant and
the sub-contractor and “potentially others.”
[82]
The
Applicant believes that the information concerning the sub-contractor falls within
subsections 20(1)(b) and 20(1)(c) of the Act.
[83]
The
Applicant further asserts that there is information on costing and pricing in
this letter that is never shared with competitors and the disclosure of which
“is likely to improve the competitive position of commercial competitors,
including AMEC Earth and Environment.” Hence, the Applicant says that
subsection 20(1)(b) is applicable.
[84]
However,
the Applicant provides little in the way of evidence, principle or authority to
support the exclusion of the information in question. The Applicant has not
adequately discharged the burden of proving that a particular exemption applies
to a particular piece of information or a document, even when each objection is
viewed in the full context of this case.
[85]
In
particular, the Applicant has failed to show:
1.
That
any of the information contained in this document is financial, commercial,
scientific or technical in nature under 20(1)(b). See H.J. Heinz Co.
of Canada Ltd. v. Canada (Attorney General), 2005
CarswellNat 3026, at paragraph 15. Indeed, most of the information referred to
appears to be a summary of the scope of work in the Chevron bid. It is not even
the Applicant’s information and does not refer to technical information or
commercial practices particular to the Applicant;
2.
That
the information is confidential within the meaning of subsection 20(1)(b).
See Air Atonabee at paragraph 15. For example, there is no evidence that
the information in question has been consistently treated as confidential in
the past. The correspondence between the Applicant and the Respondent was not
marked confidential, and there can be no expectation of confidentiality where
the statute makes it clear that the public has a right to the information, and
the Applicant has been vocal in the newspaper about its dispute with the
Respondent over the Chevron Tender process. See Toronto Sun Wah at
paragraph 25;
3.
A
reasonable expectation of probable harm under subsections 20(1)(c) or (d).
Assertion and speculation are not enough. See Saint John Shipbuilding at
paragraphs 5 and 22; SNC Lavalin Inc. at paragraph 36; Geophysical
Service Inc. v. Canada-Newfoundland Offshore Petroleum Board, [2003] F.C.J.
No. 665, at paragraphs 47 and 48; and Toronto Sun Wah, at paragraph 27;
4.
That
financial loss or loss of competitive interest would result from the release of
this letter;
5.
Some
obstruction or thwarting of contractual negotiations under subsection 20(1)(d).
See Société Gamma Inc. Canada (Secretary of State) (1994), 79 F.T.R. 42
(Fed. T.D.) at paragraph 47.
[86]
The
Applicant’s principal concern appears to be that competitors could somehow use
information disclosed in parts of this letter, including the use of a particular
sub-contractor, and gain some kind of advantage in future bids. However, the
letter discloses a list of what the Applicant put in the Chevron bid. It
reveals nothing about a bidding methodology that is confidential to the
Applicant. Much of the general nature of the Chevron bid and the problems
experienced by the Applicant have already been disclosed by the Applicant in
the Telegram article, including the fact that the work involved “weather
forecasting and weather observing,” that “one daily quote was required” and
that the “weather observation services were being provided by another company.”
2.
Letter
dated July 26, 2006 from Frank Smyth of Canada-Newfoundland and Labrador
Offshore Petroleum Board to Ms. Judith Bobbit, President of Oceans Ltd. (the
Applicant).
[87]
The
Applicant says that it has no specific objection to the production of this
letter and the attached facsimile confirmation report dated July 26, 2006.
3.
Letter
dated August 11, 2006 from Frank Smyth of Canada-Newfoundland and Labrador Offshore Petroleum Board to
Ms. Judith Bobbit, President of Oceans Ltd. (the Applicant).
[88]
The
Applicant says that the disclosure of this letter would cause harm to the
Applicant in the marketplace because the letter contains factual inaccuracies:
“…no bidders asked any questions with respect to the bid prior to its closing.”
[89]
The
assertion that the disclosure of this letter “could be expected to cause
financial loss to the Applicant or could prejudice its competitive position”
suggests that the Applicant is attempting to satisfy the exemption under
subsection 20(1)(c) for this letter. However, as discussed above, and as
the wording of the Applicant’s objection suggests, this is no more than
assertion, conjecture and speculation and does not raise a reasonable
expectation of probable harm as set out in the case law referred to above.
4.
Letter
dated August 16, 2006 from Judith Bobbit, President of Oceans Ltd. to Frank
Smyth, Manager, Industrial Benefits of Canada – Newfoundland and Labrador Offshore
Petroleum Board.
[90]
Here
again, the Applicant’s objection is to the disclosure of the identity of the
sub-contractor. The Applicant says that the inclusion of a specific sub-contractor
in the submission of a bid “is information that is unique to Oceans and it is a
process or approach that Oceans used in carrying out its duties of marine
forecasting and marine observing.”
[91]
The
Applicant says that this information falls under both subsections 20(1)(b)
and 20(1)(c) because the “disclosure of this information would cause
Oceans to be disadvantaged on future bids, as it discloses the approach used by
Oceans in bidding on such work, potentially to competitors or to opposing
litigants such as AMEC.”
[92]
As
discussed above, no real attempt is made to satisfy the qualification criteria
as set out in the relevant case law for the exemptions contained in 20(1)(b)
and 20(1)(c) as referred to above. It cannot be said that the Applicant
has discharged the burden upon it to qualify this letter for the exemptions.
The Applicant has already disclosed in the Telegram article a great deal
about the Chevron bid and its use of “another company” for the weather
observation services. The notion of any harm flowing from the identification of
the sub-contractor is mere conjecture.
5.
Letter
dated September 1, 2006 from Frank Smyth of Canada-Newfoundland and Labrador
Offshore Petroleum Board to Ms. Judith Bobbit, President of Oceans Ltd. (the
Applicant)
[93]
The
Applicant claims the exemption contained in subsection 20(1)(d) for the
entirety of this letter because it would cause harm in the market place and
negatively impact the reputation of the Applicant with existing or future
clients.
[94]
No
real attempt is made to substantiate these assertions and speculations, or to satisfy
the case law for 20(1)(d) as referred to above.
6.
Letter
dated October 17, 2006 from Judith Bobbit, President of Oceans Ltd. to Frank Smyth,
Manager, Industrial Benefits of Canada – Newfoundland and Labrador Offshore Petroleum Board.
[95]
The
Applicant says that paragraph 2 of this letter contains technical information
unique to the Applicant because it highlights differences between weather forecasting
and weather observing.
[96]
The
Applicant also says that the “knowledge of duties and processes used in
conducting weather forecasting and weather monitoring are critical” to the
Applicant, but I can find nothing in the paragraph in question that discloses
such knowledge. Everyone knows there is a difference between weather
forecasting and weather monitoring.
[97]
The
Applicant also says that the paragraph contains a “reference to the approach of
Oceans [the Applicant] on costing services to be bid on.” The paragraph merely
points out that, in this particular bid, “The cost had to be quoted as one
inclusive daily rate” but that the forecasting services aspect was reduced and
the observing component was transferred to the sub-contractor’s contract.
[98]
I
see nothing in this paragraph that could possibly qualify under subsection
20(1)(b) or 20(1)(c).
[99]
Also,
the reference to the sub-contractor does not come within subsections 20(1)(b),
(c) or (d) for reasons already given.
[100] The Applicant
also says that paragraph 5 of this letter “contains specific information with
respect to pricing and costing” which, if disclosed, “would harm the Applicant
on future bids in the competitive offshore oil industry.” Besides a bald
assertion, the Applicant provides no evidence that would satisfy the
jurisprudence and bring this information within the 20(1)(b) and (c)
exemptions.
7.
Letter
dated November 10, 2006 from Max Ruelokke, Chairman and CEO of
Canada-Newfoundland and Labrador Offshore Petroleum Board to Ms. Judith Bobbit,
President of Oceans Ltd. (the Applicant).
[101] The Applicant
says it “has no specific objection to the contents of this letter” but its
disclosure “may negatively impact upon the reputation of Oceans with existing
and potential future clients” and that the Applicant “would reasonably expect
the correspondence between it and the regulator would not be disclosed to third
parties, including clients and competitors.”
[102] It is
difficult to understand what such an expectation could be based upon, given
that the law is that government information should be made available to public
unless the information in question attracts a specific exemption and satisfies
the jurisprudence relevant to that exemption.
[103] The Applicant
here invokes 20(1)(c), but no evidence is adduced that supports the
application of this exemption to the letter in question or demonstrates a
reasonable expectation of financial loss or gain that could reasonably be
expected to prejudice the Applicant’s competitive position.
General
Complaints
[104] The Applicant
also makes some general complaints about the way that the Respondent Board
handled the disclosure issue and claims that “the Board has not considered
properly the sensitive nature of the materials and information contained in the
record, in particular having regard to the evidence of Ms. Bobbit as to the
probable harm to Oceans if the record is released or whether the sensitive
materials can be severed.”
[105] As the Court
is considering the matter de novo, and is not reviewing the Decision of
the Respondent Board, it is difficult to see the relevance of these
allegations.
Conclusions
[106] The
jurisprudence surrounding the exclusions contained in subsection 20(1) of the
Act is clear that the Applicant faces a heavy burden to demonstrate that any
particular exemption applies. The Act favours disclosure. The Applicant relies
upon the affidavit of Ms. Bobbit and says that its fears are about future loss
that cannot easily be demonstrated. Ms. Bobbit has done the best she can to
provide evidence under the circumstances. The case law is clear, however, that the
Court must be provided with more than mere assertion and conjecture. At times
it is difficult to know precisely what it is the Applicant is referring to. In
her affidavit, for instance, at paragraph 37, Ms. Bobbit says that the
“knowledge of duties and processes used in conducting weather forecasting and
weather monitoring are critical to Oceans, and the disclosure of this
information to a third party would allow a third party to adjust future bids,
to the detriment of Oceans.”
[107] However, when
the letters are examined, they contain nothing in the way of “knowledge of
duties and processes used in conducting weather forecasting and weather
monitoring.”
[108] At the
hearing, the Applicant said its concern is not with the science and
technicalities of the duties and processes involved, but with the way that the
Applicant goes about structuring its bids. Once again, however, if the letters
are examined carefully, it is clear that they are really about the Chevron bid,
the scope of work in the Chevron bid, and the Applicant’s on-going dispute
arising out of the Chevron bid. This is not the kind of information that the
exemptions in subsection 20(1) are intended to cover. In addition, any harm or
disadvantage claimed by the Applicant remains entirely speculative and unproven
in accordance with the requirements of the case law.
[109] Reviewing
this matter entirely de novo, I must conclude that the Applicant has not
established a case for any of the exemptions. Consequently, I must dismiss this
application. In my view, the documentation in question should be released.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed;
2.
The
Respondent shall have its costs on the usual scale.
“James
Russell”
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