Date: 20070411
Docket: T-1349-05
Citation: 2007 FC 347
BETWEEN:
131
QUEEN STREET LIMITED
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
PUBLIC REASONS FOR ORDER
(Confidential Reasons for
Order issued April 2, 2007)
Heneghan,
J.
I. Introduction
[1]
131
Queen Street Limited (the “Applicant”) seeks judicial review pursuant to
section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the
“Act”) regarding a decision of the Department of Public Works and Government Services
Canada (“PWGSC”). In that decision, made on July 12, 2005, PWGSC decided to
disclose certain information concerning the business affairs of the Applicant,
in response to a request made under the Act. The Applicant claims that the
information in question is confidential information belonging to a third party
and is exempt from disclosure pursuant to paragraphs 20(1)(a), (b) and (c) of
the Act.
[2]
The
Applicant seeks an order pursuant to section 51 of the Act that the Minister be
prohibited from disclosing the information in question.
II. Facts
[3]
The
Applicant filed confidential affidavits of Mr. Paul Snyder and Mr. Glen Simpson.
The Respondent filed confidential affidavits of Mr. Denis Vaillancourt and of
Ms. Pamela Dawson.
[4]
According
to Mr. Snyder’s affidavit, the Applicant is a body corporate incorporated
specifically to develop, lease and manage certain premises located at 131 Queen
Street,
Ottawa. Morguard Corporation (“Morguard”) is also involved with the lease of
the property situate at 131 Queen Street.
[5]
On
July 21, 2003, the Applicant and Morguard leased the premises to the National
Capital Commission (“NCC”). This document in the Head Lease is referred to as
the Sub-Lease. On the same day, the NCC subleased the premises to PWGSC.
[6]
On
April 12, 2005, PWGSC received an access to information request pursuant to the
Act, regarding the premises. The requesting party sought release of information
relating to the term of the Sub-Lease, the rental rate for the term of the Sub-Lease,
the parking costs and number of
parking stalls provided, and any allowances
that may have been granted to PWGSC as part of the transaction.
[7]
PWGSC
identified the Applicant as a potentially affected third party and by letter
dated May 11, 2005, informed the Applicant of the request for information. In
that letter, the Respondent also advised the Applicant as to the identity of
the specific records that contained the requested information and invited the
Applicant to provide its comments, as a third party pursuant to section 27 of
the Act, as to why the requested information should not be disclosed.
[8]
The
Applicant wrote to PWGSC, objecting to the release of the requested
information. The Applicant objected to disclosure of the following information:
The term and renewal of the Sub-Lease,
being article 2 of the Sub-Lease;
The assignment of the option to purchase,
being article 18 of the Sub-Lease;
Specific conditions of the tenants, being
article 1 of schedule E of the Head Lease;
Construction delays, being article 7 of schedule
E of the Head Lease;
Option to extend, being article 8 of schedule
E of the Head Lease;
Option to purchase, being article 10 of schedule
E of the Head Lease;
Parking, being article 11 of schedule E
of the Head Lease;
Dispute resolution, including the
definition of fair market net effective rent, being article 1 of the Head Lease
and Article 15 of schedule E of the Head Lease; and
Set-off, being article 18 of schedule E
of the Head Lease.
[9]
By
letter dated July 12, 2005, the Respondent notified the Applicant of its
decision that only partial exemptions were justified.
III. Summary of Submissions
A. The Applicant
[10]
The
Applicant submits that the decision should be reviewed upon the standard of
correctness. It further argues that the information is exempt from disclosure
because it is confidential information within the scope of paragraph 20(1)(b)
of the Act. In this regard it relies on the decision in Air Atonabee v. Canada (Minister of
Transport)
(1989), 27 C.P.R. (3d) 180 (F.C.T.D.).
[11]
The
Applicant also argues that the disclosure of the information gives rise to a
reasonable expectation of probable harm, that is a reasonable expectation of
financial loss and prejudice to its competitive position in the marketplace.
Accordingly, it argues that it is entitled to exemption from disclosure on the
basis of paragraph 20(1)(c) of the Act and relies on the decision in Canada
Packers Inc. v. Canada (Minister of
Agriculture), [1989] 1 F.C. 47 (C.A.).
[12]
Finally,
the Applicant submits that the disclosure of the requested information will interfere
with continuing negotiations and damage relationships with existing tenants. In
that respect, it argues that disclosure of the information will undermine
current negotiations regarding the premises at 131 Queen because potential
tenants will become aware of concessions and inducements made to the NCC. It
submits that disclosure will undermine negotiations by Morguard, its business
partner, regarding the development of another mixed use office tower in
downtown Ottawa. Further, it
argues that disclosure will damage relationships with existing tenants to the
extent that these tenants may perceive their lease terms are less favourable
than those negotiated with the NCC; this may lead to demands by existing
tenants for further concessions in renegotiation of their leases concerning
such matters as renewal of the lease, option to purchase and dispute
resolution.
[13]
The
Applicant argues that these circumstances justify exemption from disclosure, on
the basis of paragraph 20(1)(d) of the Act. It relies on the decisions in Canadian
Pacific Hotels Corporation v. Canada ( Attorney General) (2004), 249 F.T.R.
151 and Perez Bramelea Limited v. National Capital Commission, [1995]
F.C.J. No. 63, (T.D.) (QL) and argues that these circumstances justify
non-disclosure of the information, even on a temporary basis.
B. The Respondent
[14]
For
its part, the Respondent submits that applications made pursuant to section 44
of the Act are generally treated as judicial reviews in this Court, but this
Court will also undertake a de novo assessment to the extent that it
deems such assessment necessary. In this regard, the Respondent relies on the
decisions in Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 and
St. Joseph Corporation v. Public Works and Government Services (2002),
218 F.T.R. 41.
[15]
The
Respondent argues that exemptions under subsection 20(1) of the Act are
mandatory and that the only question is whether the information in issue falls
within any of the exemptions outlined in that statutory provision. The
Respondent submits that, in these circumstances, the applicable standard of
review is correctness and relies in this regard on the decision in Canadian
and Jewish Congress v. Canada (Minister of Employment and Immigration),
[1996] 1 F.C. 268 (T.D.).
[16]
In
response to the Applicant’s submissions concerning the availability of the
exemption provided by paragraph 20(1)(c) of the Act, the Respondent argues that
the Applicant must show that it complies with each of the four criterion
identified in that provision. In this regard, the Respondent relies on the
decision in Hutton v. Canada (Minister of Natural
Resources)
(1997), 137 F.T.R. 110. It submits that exemption from disclosure is the
exception to the general rule, relying on the decision in H.J. Heinz Co. of
Canada Limited v. Canada (Attorney General), [2003] 4 F.C. 3 (T.D.).
[17]
While
the Respondent acknowledges that the disputed information is financial,
commercial, scientific or technical in nature, it submits that the Applicant
has failed to establish that the information is confidential information per
se, that the information was “supplied in confidence” by a third party to
the government and finally, that it was treated consistently as confidential
information by the Applicant.
[18]
Relying
on the decision in Canadian Imperial Bank of Commerce v. Canada (Canadian
Human Rights Commission) (2006), 45 Admin. L.R. (4th) 157,
the Respondent argues that in order to determine whether information was
supplied in confidence by a third party to the government, it is necessary to
consider the following factors:
a. the nature
rather than the form of the information;
b. that conclusions
by government officials formed from their own observations do not constitute
information supplied by a third party; and
c. that the
exemption applies only to those parts of the record which are clearly and
specifically shown to be information supplied from the third party.
[19]
The
Respondent argues that the requested information does not qualify for exemption
under paragraph 20(1)(b) for two reasons. First, the information, by its
nature, was generated through the participation of PWGSC and the Applicant. The
terms of the Sub-Lease were negotiated by the parties, not simply supplied by
the Applicant. Second, the Respondent submits that the Applicant has failed to
identify the sections of the requested material that it produced solely as a
result of its own efforts.
[20]
The
Respondent challenges the characterization of the information as confidential
information and argues that the requested information is already available on
the public record, following the registration of notices of various lease
documents at the Land Registry Office in Ottawa, pursuant to provincial
legislation. It submits that the language of the registration is such that the
Applicant has already agreed to make the documents publicly available and
further submits that the registered notices also reveal some of the information
that the Applicant claims is confidential, such as the length of term of the Sub-Lease.
[21]
The
Respondent submits that the Applicant has failed to provide any evidence that
confidentiality for the disputed information would protect a public interest or
a relationship that is fostered in confidence for the benefit of the public. Although
it agrees that government suppliers were granted some protection in the
jurisprudence cited by the Applicant, it argues that those cases do not require
routine protection of such relationships. It submits that confidentiality in a
working relationship between the government and a third party is not
automatically synonymous with the public interest, even if it contributes to
the working relationship.
[22]
Finally,
the Respondent argues that the only evidence tendered by the Applicant to show that
the requested information was treated confidentially is the confidentiality
provision in the Head Lease. This provision says that the lease is subject to
the Act. The Respondent submits that such an assertion is insufficient to
discharge the onus created in paragraph 20(1)(b), that is the evidentiary onus borne
by an applicant seeking non-disclosure. In this regard, the Respondent relies
on the decision in Mead-Johnson Nutritionals et al. v. Canada (Attorney
General),
2005 FC 235.
[23]
Further,
with respect to the Applicant’s reliance on paragraph 20(1)(c) of the Act, the
Respondent argues that the Applicant has failed to produce persuasive evidence
to show, on a balance of probabilities, that disclosure could reasonably be
expected to cause financial loss and prejudice to its competitive position. The
Respondent submits that the strict evidentiary burden is not met by
speculation, mere possibility or bare statements in an affidavit, relying on
the decisions in St. John Shipyards Limited v. Canada (Minister of Supply
and Services) (1989), 24 F.T.R. 33, aff’d. (1990), 107 N.R. 891 (C.A.) and SNC-Lavalin
Inc. v. Canada (Minister of Public Works) (1994), 79
F.T.R. 113.
[24]
Finally,
with respect to the Applicant’s reliance upon paragraph 20(1)(d), the
Respondent argues that again, the Applicant has failed to establish an
evidentiary basis to justify non-disclosure of the documents on the basis of
this statutory provision. As well, the Respondent argues that paragraph
20(1)(d) does not apply to daily commercial dealings but rather, is intended to
respond to those situations not covered by paragraph 20(1)(c).
IV. Discussion and Disposition
[25]
This
proceeding concerns the Applicant’s request for a review of the decision by
PWGSC to release certain information pursuant to the Act. Section 44 provides a
third party, such as the Applicant, with the right to a review of a decision to
disclose and provides as follows:
|
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.
(2)
The head of a government institution who has given notice under paragraph
28(1)(b) or subsection 29(1) that a record requested under this Act or a part
thereof will be disclosed shall forthwith on being given notice of an
application made under subsection (1) in respect of the disclosure give
written notice of the application to the person who requested access to the
record.
(3)
Any person who has been given notice of an application for a review under
subsection (2) may appear as a party to the review.
|
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.
(2)
Le responsable d’une institution fédérale qui a donné avis de communication
totale ou partielle d’un document en vertu de l’alinéa 28(1)b) ou du
paragraphe 29(1) est tenu, sur réception d’un avis de recours en révision de
cette décision, d’en aviser par écrit la personne qui avait demandé
communication du document.
(3)
La personne qui est avisée conformément au paragraphe (2) peut comparaître
comme partie à l’instance.
|
[26]
The
purpose of the Act is to allow disclosure of information held by the
Government. This purpose is set out in subsection 2(1) of the Act as follows:
|
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.
…
|
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.
…
|
[27]
Certain
types of information are protected from disclosure, as set out in subsection
20(1) as follows:
|
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.
|
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.
|
[28]
This
provision is mandatory. Disclosure shall be refused where a third party establishes
that it meets the criteria set out in subsection 20(1). The presence of the
verb “shall” suggests that no deference will be given to the initial decision
of the head of a government institution who decides to disclose records and a
review pursuant to section 44 will proceed on a de novo basis, including
a detailed review of the documents in question, should this be necessary. In
this regard, see Air Atonabee.
[29]
Since
the purpose of the Act is to provide access to information under the control of
a government institution, a “heavy burden” lies on a third party seeking to
prevent disclosure, pursuant to subsection 20(1); see Canada (Information
Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.) at 441.
[30]
In
the present case, the Applicant seeks an order for non-disclosure on the basis
of paragraphs 20(1)(b), 20(1)(c) and 20(1)(d). I will address each ground in
turn.
A. Paragraph 20(1)(b)
[31]
This
provision exempts from disclosure confidential financial, commercial,
scientific or technical information. According to the decision in Air Atonabee,
the information in question must satisfy the following criteria in order to be
exempt on the basis of paragraph 20(1)(b):
1) financial,
commercial, scientific or technical information as those terms are commonly
understood;
2) confidential in its
nature, according to an objective standard which takes into account the content
of the information, its purposes and the conditions under which it was prepared
and communicated;
3) supplied to a government
institution by a third party; and
4) treated
consistently in a confidential manner by the third party.
[32]
I
agree with the Respondent that the disputed information is not information that
was “supplied” to a government institution by a third party. This is one of the
four mandatory criteria identified in the jurisprudence as a ground for
exemption from disclosure pursuant to paragraph 20(1)(b). In Canadian
Imperial Bank of Commerce, Justice Blanchard stated at paragraph 96 that
information must clearly and specifically be shown to come from a third party
in order to be exempt from disclosure under paragraph 20(1)(b).
[33]
In
this case, the disputed information consists of certain provisions in the Head
Lease and the Sub-Lease that were agreed upon by the parties as a result of
negotiations. It is not information that was merely provided to the government
by the Applicant. The comments of Justice McGillis at paragraph 3 of Halifax
Development Limited v. Canada (Minister of Public
Works and Government Services), [1994] F.C.J. No. 2035 (T.D.) (QL) are
applicable here:
… With respect, I do not agree that the
rental rates constitute information which was "supplied" to a
government institution. The evidence tendered on the motion establishes that
the rental rates were negotiated between the applicant and respondent as a term
of the leases. In my opinion, a negotiated term of a lease may not properly be
characterized as information which was supplied to the government Paragraph
20(1)(b) of the Act is therefore inapplicable to the facts of this ease [sic].
[34]
As
well, the fact that the Head Lease and the Sub-Lease have been registered in
the Land Registry Office at Ottawa, according to the confidential affidavit
of Pamela Dawson, greatly undermines the Applicant’s claim that these documents
have always been treated as confidential. Ms. Dawson identifies other documents
relative to the business interests of the Applicant in the premises that are
registered at the Land Registry Office. The Land Registry is open to the public
and the documents are available for production, upon request, within fourteen
days of a request being made.
[35]
Because
the disputed information does not meet the criteria of having been “supplied”
to the government, the Applicant has failed to establish that it is entitled to
an order of non-disclosure on the basis of paragraph 20(1)(b). In my opinion,
it is not necessary to consider the other criteria outlined in Air Atonabee
with respect to an exemption under paragraph 20(1)(b). In H.J. Heinz Co.,
the Court concluded that all four
applicable criteria must be satisfied in order to qualify for exemption from
disclosure on the basis of this statutory provision.
B. Paragraph 20(1)(c)
[36]
The
Applicant argues that it is entitled to an exemption from disclosure on the
basis of paragraph 20(1)(c) of the Act. This provision allows non-disclosure on
the grounds that disclosure gives rise to a reasonable expectation of financial
loss and prejudice from a third party’s competitive position. According to the
decision in SNC Lavalin Inc. v. Canada (Minister for International
Co-operation) (2003), 234 F.T.R. 294, in order to qualify for
non-disclosure on this ground, an applicant need only show that the disclosure
could reasonably be expected to result in material financial loss or gain to
the Applicant or where the disclosure could reasonably be expected to prejudice
its competitive position.
[37]
Again,
the burden lies upon the Applicant to establish, on the balance of
probabilities, that the disclosure will cause the harm described in paragraph
20(1)(c) of the Act.
[38]
The
Applicant describes the potential harm to its financial or competitive position
in the confidential affidavit of Mr. Snyder. However, in my opinion, Mr. Snyder
has provided only speculative opinions as to the alleged harm that would flow
from disclosure of the requested
material. The observations of the Court in SNC
Lavalin (2003) at paragraph 36 apply to this case, and reads as follows:
Turning to paragraph 20(1)(c)
of the Act and the criteria thereunder as noted in Air Atonabee,
as quoted above, 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 disclosure. Speculation, no
matter how well informed, does not meet the standard of reasonable expectation
of material financial loss or prejudice to the Applicant’s competitive
position.
[39]
As
well, I agree with the Respondent’s arguments that accepting the Applicant’s
submissions with respect to paragraph 20(1)(c) would give rise to a blanket
exemption under the Act for all those who are involved in commercial
transactions with government institutions. Such an interpretation runs counter
to the language and purpose of the Act which allows only limited exemptions
from disclosure and is intended to facilitate public access to information held
by government institutions. In this regard, I refer to Rubin v. Canada (Minister of
Health)
(2001), 210 F.T.R. 84 at paragraph 36 where the Court said:
Section 2 of the Act
codifies the public right of access and the basic premise that the public
should have access to government records, and that exceptions to the right of
access should be limited and specific. It has also been established that the
burden of demonstrating that access to documents should be denied rests on the
party opposing disclosure. In Maislin Industries Ltd., supra, Jerome,
J., stated the following:
“It should be emphasized however, that
since the basic principle of these statutes is to codify the right of public
access to Government information two things follow: first, that such public
access ought not be frustrated by the courts except upon the clearest grounds
so that doubt ought to be resolved in favour of disclosure; second, the burden
of persuasion must rest upon the party resisting disclosure whether, as in this
case, it is the private corporation or citizen, or in other circumstances, the
Government.”
C. Paragraph 20(1)(d)
[40]
The
Applicant argues that disclosure of the requested information will interfere
with its ongoing negotiations and accordingly, should be exempt from disclosure
on the basis of paragraph 20(1)(d) of the Act. To support this argument, the
Applicant again relies on the confidential affidavit of Mr. Snyder.
[41]
I
am not satisfied that the Applicant has established its allegations in this
regard. The affidavit of Mr. Snyder does not provide sufficient probative
evidence to justify an exemption on the basis of paragraph 20(1)(d).
Unsupported assertions or speculative evidence that disclosure would give rise
to a reasonable expectation of probable harm is not enough. In this regard, see
Canadian Broadcasting Corporation v. National Capital Commission (1998),
147 F.T.R. 264 at paragraph 27 and Société Gamma Inc. v. Canada (Department
of Secretary of State) (1994), 79 F.T.R. 42 at paragraph 10.
[42]
Rather,
there must be evidence to support a reasonable expectation that actual
contractual negotiations of the Applicant, other than ordinary daily business
operations, will be subject to interference; Canada (Information
Commissioner) v. Canada (External Affairs), [1990] 3 F.C. 665 (T.D.) at
682-83. The party resisting disclosure must satisfy a heavy burden of
persuasion; see SNC Lavalin (2003) at paragraph 37.
[43]
In
this case, I am not satisfied that the Applicant has met this burden. In the
affidavit of Mr. Snyder, it proposes that “current negotiations” will be
disrupted but it does not provide even cursory details about such negotiations
such as, for example what space is available for rental, the parties involved
or the expected duration of such negotiations. The evidence tendered is
speculative and does not support a claim of reasonable expectation of probable
harm.
[44]
The
Applicant’s claim that disclosure may negatively affect its “business partner”
Morguard is of limited value. Morguard is not a party to this proceeding. The
Applicant only makes a vague reference to its involvement in the development of
a 26-storey mixed-use office tower located at an unidentified location in Ottawa. The
Applicant does not discuss any specific negotiations.
[45]
The
decisions in Perez and Canadian Pacific are of limited assistance
to the Applicant. In both of those cases, the Court suspended the disclosure of
information pursuant to paragraph 20(1)(d) for limited periods.
[46]
Unlike
the circumstances in Perez Bramalea and Canadian Pacific, the
Applicant here has not identified any specific and continuing negotiations that
would justify a temporary suspension of the requested disclosure.
V. Conclusion
[47]
In
the result, the Applicant has failed to meet its evidentiary burden to justify
an exemption on the basis of either paragraph 20(1)(b), (c) or (d) of the Act.
The application is dismissed with costs.
“E. Heneghan”
Ottawa,
Ontario
April
11, 2007
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