Date: 20171013

Docket: T-739-16

Citation: 2017 FC 910

[ENGLISH TRANSLATION]

Ottawa, Ontario, October 13, 2017

PRESENT: The Honourable Mr. Justice Bell

BETWEEN:

AIR TRANSAT A.T. INC.

Applicant

and

TRANSPORT CANADA/MINISTER OF TRANSPORT OF CANADA AND INFORMATION COMMISSIONER OF CANADA

Respondents

 JUDGMENT AND REASONS

I.                    Overview

[1]               This includes: (1) an application for judicial review of a decision by Transport Canada/the Minister of Transport of Canada [TC], following a recommendation by the Information Commissioner of Canada [Commissioner]; and (2) a motion to strike two affidavits by the respondents.

[2]               Under subsection 44(1) of the Access to Information Act, R.S.C. 1985, c. A-1 [AIA], Air Transat A.T. Inc. [Air Transat] is seeking a judicial review of a decision rendered by TC on April 18, 2016, that authorized the disclosure of an inspection report regarding Air Transat, prepared by TC in 2003. Under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 [FCA], Air Transat is also seeking this judicial review to set aside a report prepared by the Commissioner on February 25, 2016, that recommended that TC disclose the inspection report regarding Air Transat.

[3]               Air Transat is also seeking to strike [translation] “any allegation and any exhibit brought to the attention of Air Transat after that decision […] to attempt to justify the delays between the date of the access request (November 24, 2005) and the decision by Air Transat (April 18, 2016 […]”.

[4]               For the following reasons, I allow the application for judicial review. Having dismissed the motion to strike at the beginning of the hearing, I will briefly address my decision in that regard at the start of my reasons.

[5]               I also feel it is important to advise readers at this stage of the judgment that I understand that Part III – Context is difficult to read due to the formulation of the dates. Given that one of the grounds in my judgment deals with the issue of the delays in managing this case, I wanted to fully note the steps taken by the various participants.

II.                 Motion to strike

[6]               Air Transat claims that certain paragraphs and certain exhibits in support of the respondents’ affidavits on August 13, 2016, and September 15, 2016, should be struck, as they were after the decision by TC on April 18, 2016. In those affidavits, the affiants explain the delays in the conduct of the Commissioner’s investigation.

[7]               At the start of the hearing, I dismissed the motion to strike and authorized the arguments based on the affidavits dated August 13, 2016, and September 15, 2016, for the following reasons.

[8]               It is the rule that an administrative tribunal whose decision is challenged in a judicial review may submit explanations and submissions regarding jurisdiction (Northwestern Utilities Ltd. et al. v. Edmonton, [1979] 1 S.C.R. 684, at page 688, 89 DLR (3^d) 161; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, at paras 41 et seq., [2015] 3 S.C.R. 147; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1996] F.C.J. No. 1309, at para 5, 121 F.T.R. 42). As such, the Commissioner was entitled to submit affidavits to explain to the Court the steps that she took in her investigation and the causes of the delays in her investigation, even if the information in some paragraphs and some supporting exhibits were not shared during the investigation. That information will allow the Court to determine whether the delays that occurred were reasonable, or if they infringed on the right to procedural fairness in a way that deprived the Commissioner of jurisdiction.

[9]               The applicant was also entitled to cross-examine the affiants regarding the information contained in the affidavits. For that reason, I do not feel that dismissing the motion to strike results in a denial of justice or a breach of the rule of audi alteram partem.

III.               Context

[10]           On March 22, 2005, TC received an access to information request for documents, worded as follows:

[translation]

Provide the special interim/final special audit report prepared following the November and December 2003 examination of Air Transat’s quality safety management system (QSMS), the evaluation methodology used to conduct the audit, the inspector checklists used, the reports regarding site visits, responses by Air Transat, the corrective measure plans in place and the progress achieved. Include communications exchanged regarding the preparation of the audit and subsequent events by the senior investigators on the audit, the Director of Manufacturing and Maintenance and the Director General of Civil Aviation. Include the memos prepared, or the media lines, communications and strategies developed. Include the plans related to similar audits and the proposed changes, if any, in the inspection process and methodology. Other documents published or about to be published.

[11]           More than 600 pages of information and reports were mentioned in the access to information request.

[12]           On April 29, 2005, TC refused to disclose the vast majority of the documents requested in the access request. TC felt that those documents fell under certain exceptions in the AIA (which will be addressed later). Those undisclosed documents included an inspection report entitled “Transport Canada Regulatory Inspection of Air Transat AT Inc., November 12–14, 2003” [Report], which is at the heart of this dispute.

[13]           Not having obtained disclosure of the desired documents, including the Report, the access to information requestor [access requestor] filed a complaint with the Commissioner on July ­19, 2005.

[14]           On September 7, 2005, the Commissioner advised TC that a complaint had been filed and that an investigation would be conducted of its refusal to disclose the documents referred to in the access request. In particular, the Commissioner questioned whether the exceptions under the AIA applied to the undisclosed documents. The Commissioner therefore asked TC to make additional submissions on that point.

[15]           On November 28, 2005, Air Transat received a letter from TC advising it of the existence of the access to information request.

[16]           On January 19, 2006, Air Transat sent written submissions to TC advising of its formal objection to the disclosure of the documents referred to in the request. It argued that the exceptions set out in paragraphs 20(1)(a), 20(1)(b), 20(1)(c), and 20(1)(d) of the AIA applied to the documents referred to in the access request and that those documents should therefore remain confidential in their entirety.

[17]           Between September 2005 and July 2012, the Commissioner followed up several times with TC for the purposes of her investigation. After those follow-ups, TC agreed to disclose some parts of the documents referred to in the access request to the access requestor. During that entire period, Air Transat did not receive any updates on the matter from TC or the Commissioner.

[18]           On July 5, 2012, the Commissioner contacted Air Transat to obtain submissions regarding the application of paragraphs 20(1)(a), 20(1)(b), 20(1)(c), and 20(1)(d) of the AIA to the rest of the undisclosed documents.

[19]           On September 28, 2012, Air Transat sent its submissions to the Commissioner. In its submissions, it argued that application of the exceptions was justified. Air Transat also indicated that the delays experienced during the Commissioner’s investigation constituted a denial of natural justice.

[20]           On May 13, 2013, TC again agreed to disclose a few parts of the documents referred to in the access request to the access requestor.

[21]           That same day, the Commissioner asked TC to make further written submissions regarding the application of the exceptions to the documents in question. TC replied on May 14, 2013.

[22]           On January 29, 2015, the Commissioner again asked TC to make further written submissions regarding the application of the exceptions to the documents in question. TC replied on February 16, 2016, and stated that, unlike Air Transat, it was no longer using paragraph (c) to justify non-disclosure. It nonetheless maintained its objection to the disclosure of the documents under other exceptions in the AIA.

[23]           On April 16, 2015, the access requestor agreed to limit the access request to the Report; more specifically, it agreed to limit the access request to pages 84 to 104 of the Report (as pages 105 to 112 had already been disclosed).

[24]           On February 25, 2016, the Commissioner submitted her investigation report to TC. In it, the Commissioner confirmed the merits of the access request and recommended that TC disclose the 21 pages of the Report.

[25]           On March 24, 2016, TC changed its position and advised Air Transat that it had decided to follow the Commissioner’s recommendation and to disclose the 21 pages of the Report. Air Transat examined the Commissioner’s report and the TC decision on April 19, 2016.

IV.              Legislative provisions of the AIA

[26]           The purpose of the AIA is to ensure access to documents that are under the control of a government institution, unless the information in the document falls under one of the exceptions set forth in the AIA. This application for judicial review cites the exceptions found in subsection 20(1) of the AIA regarding third party information:

V.                 Impugned decision

[27]           Air Transat challenges the decision by TC on April 18, 2016, authorizing the disclosure of the Report regarding it. The decision was based on the recommendation made by the Commissioner in her report dated February 25, 2016. Although the Commissioner’s report addressed the numerous exceptions that were raised by TC and Air Transat during her investigation, this dispute is only related to the relevant provisions contained in subsection 20(1) of the AIA. I will therefore limit my summary of the Commissioner’s conclusions to the exceptions contained in paragraphs 20(1)(a), 20(1)(b), 20(1)(c), and 20(1)(d) of the AIA.

[28]           Paragraph 20(1)(a) deals with trade secrets of a third party. After considering the definition of “trade secret” put forward in Merck Frosst Canada Ltd. v. Canada (Minister of Health), 2012 SCC 3, [2012] 1 S.C.R. 23 [Merck Frosst], the Commissioner decided that neither the Report nor the information contained in the Report constituted a trade secret. The Report therefore should not remain confidential under paragraph 20(1)(a).

[29]           Paragraph 20(1)(b) requires that federal institutions refuse to disclose financial, commercial, scientific or technical information supplied by a third party that is confidential in nature. The Commissioner decided that the information in the Report was not from a third party, but rather constituted regulatory conclusions drawn from information provided by Air Transat. The Commissioner therefore concluded that paragraph 20(1)(b) did not apply.

[30]           Paragraph 20(1)(c) protects information the disclosure of which could reasonably be expected to result in material financial gain to, or could reasonably be expected to prejudice the competitive position of, a third party. The exception was alleged by Air Transat, not TC. To prove that the exception applied, Air Transat had to demonstrate that disclosure of the Report could reasonably be expected to result in financial losses or prejudice its competitive position. Having decided that the evidence from Air Transat was speculative and had therefore not met the required degree of probability to be considered “likely”, the Commissioner was not satisfied that the application of paragraph 20(1)(c) was justified. She reached the same conclusion for paragraph 20(1)(d), which protects information the disclosure of which could reasonably be expected to interfere with Air Transat ability to negotiate contracts.

[31]           For these reasons, the Commissioner concluded that none of the exceptions under the AIA applied under the circumstances. She concluded that the access requestor’s complaint was founded and recommended that TC disclose the Report in its entirety. TC accepted that recommendation and disclosed the undisclosed 21 pages after refusing to disclose them for about 10 years.

VI.              Issues

[32]           There are two issues related to the application for judicial review:

VII.            Standard of review

[33]           The standard of review applicable to an application for judicial review filed under subsection 44(1) of the AIA has been previously determined by jurisprudence from the Supreme Court of Canada. According to that jurisprudence, it is the role of the Court judge to “review” a decision by the head of a government institution to disclose documents referred to in an access request. The standard of review applicable to the first issue is therefore the standard of correctness; the Court must conduct a de novo review to determine if the institutional head correctly decided based on the law as it is set forth in the AIA (Merck Frosst, at para 53; Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, at para 19, [2003] 1 S.C.R. 66).

[34]           Regarding the issue of whether there was a breach of natural justice or the principles of procedural fairness, jurisprudence holds for the most part that the applicable standard of review is that of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, at para 79, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para 43; Farha v. Canada (Citizenship and Immigration), 2016 FC 507, at para 16; Conocophillips Canada Resources Corp. v. Canada (National Revenue), 2016 FC 98, at para 25, [2016] D.T.C. 5016; Memari v. Canada (Citizenship and Immigration), 2010 FC 1196, at para 30, [2012] 2 F.C.R. 350). According to the correctness test, the Court must conduct its own analysis and may, if it disagrees with the decision-maker’s reasoning, substitute its own view (Dunsmuir, at para 50).

[35]           Finally, the issues of whether: (1) the delays that occurred during the investigation were unreasonable to the extent of depriving the Commissioner of jurisdiction; and (2) there were errors in the reasons supporting the Commissioner’s decision; are questions of mixed fact and law. The applicable standard of review is therefore that of reasonableness; the Court must determine whether the Commissioner’s decision was reasonable in respect of the facts and the law. The reasonableness of the decision will depend on the justification of the decision, the transparency and intelligibility of the decision-making process, and whether the decision falls within an acceptable range of outcomes which are defensible in respect of the facts and the law: (Dunsmuir, at para 47).

VIII.         Analysis

[36]           The trade secrets of a third party held by a government institution must remain confidential under the AIA. Air Transat submitted that the information contained in the Report falls under that exception. More specifically, Air Transat considers that the operating methods related to air safety described in the Report constitute trade secrets and should not be disclosed. The respondents, for their part, submitted that the Report instead contains a report on an inspection of the implementation of Air Transat’s “Safety Management Systems” [SMS] and does not contain trade secrets.

[37]           The two parties agree on the definition of a trade secret, set forth in Merck Frosst. In that decision, the Supreme Court defined a trade secret as follows:

These elements are the same as in the Guidelines in evidence before us, which read:

-         the information must be secret in an absolute or relative sense (i.e. known only by one or a relatively small number of persons);

-         the possessor of the information must demonstrate that he has acted with the intention to treat the information as secret;

-         the information must be capable of industrial or commercial application;

-         the possessor must have an interest (e.g. an economic interest) worthy of legal protection.

[…]

These include that it is a plan or process, tool, mechanism or compound known only to its owner and his employees to whom it is necessary to confide it and that it usually is understood to mean a secret formula or process not patented but known only to certain individuals using it in compounding some article of trade having a commercial value

[38]           The exception set forth in paragraph 20(1)(a) is categorical. Once the information contained in a document is classified as trade secrets, the exception applies, and the information cannot be disclosed. It follows that, if the information contained in the Report corresponds to the definition of a trade secret set forth in Merck Frosst, the head of the federal institution must refuse to disclose it (Merck Frosst, at para 99). Air Transat claimed that the information in the Report meets the four criteria set forth in Merck Frosst. It relies on the contents of the Report and on two affidavits by Dave Bourdages (Mr. Bourdages), Senior Director of Safety, Quality and Security.

[39]           First, regarding the first criterion, I accept that the Report was only known to a limited number of people. Indeed, the paper version was sent to the President and Director General of Air Transat and the electronic version is in a limited-access computer directory. The first criterion is therefore met.

[40]           Air Transat then had to show that it acted with the intention of treating the information as though it were secret. Air Transat claimed that it only agreed to take part in the implementation of the SMS with TC on condition that the confidentiality of the data and the Report would be respected by TC. I find that the evidence shows an intent in that regard on the part of Air Transat. The second criterion is therefore also met.

[41]           As for the third and fourth criteria, Air Transat claimed that the information was technical in nature, concrete application processes in the airline industry regarding the implementation of air safety systems. It claimed that the processes were processes developed by Air Transat and that could give its competitors a significant financial advantage.

[42]           It must be noted that Air Transat took part in a pilot project with TC. Air Transat invested a lot of time, money and expertise in creating and, eventually, implementing an air safety system. I agree with Air Transat’s claims that the information regarding this system has a practical application, and that its competitors would have a financial benefit over it if the information were disclosed. The techniques and methods, and the identity of the personnel involved, would be available to them if the report were disclosed. The third and fourth criteria are therefore met.

[43]           In Pricewaterhousecoopers LLP v. Canada (Minister of Canadian Heritage), 2001 FCT 1040, 211 FTR 206 (FC), upheld by the Federal Court of Appeal in 2002, the Court concluded that the confidential methodology employed by the applicant to carry out certain parts of a government contract constituted a trade secret, even though the results were anticipated and not confidential. I find that the same is true in this case.

[44]           In light of the confidential nature of the pilot project, the exchange of confidential information between Air Transat and TC for the purposes of the pilot project, the fact that each airline must nonetheless develop its own air safety system, and the fact that the expertise of the people involved and the methodology adopted (information available in the Report) were used by Air Transat to create an effective and optimal air safety system for itself, I consider that the information constitutes trade secrets and cannot be disclosed under paragraph 20(1)(a) of the AIA.

[45]           The applicability of paragraph 20(1)(b) requires that four very distinct conditions be met: (1) the information must be financial, commercial, scientific or technical in nature; (2) the information must be confidential; (3) the information must be supplied to a federal institution by a third party; and (4) the information must be treated consistently in a confidential manner by the third party (Porter Airlines v. Canada (Attorney General), 2014 FC 392, at para 30, [2014] F.C.J. No. 493 [Porter]; Air Atonabee Ltd. v Canada (Minister of Transport), [1989] F.C.J. No. 453, 27 F.T.R. 194, at para 34 [Air Atonabee]).

[46]           Air Transat and TC agree that the Report deals with technical and commercial information, and that it was always treated by Air Transat as being confidential in nature. I agree. I will now look at the other two disputed conditions.

[47]           There are three necessary criteria for information to be considered confidential: (1) it has not been previously disclosed to the public; (2) it was transmitted with a reasonable expectation of that it would not be disclosed; and (3) the confidentiality is not contrary to the public interest (Porter at para 44; Air Atonabee at para 20).

[48]           Air Transat submitted that the information in the Report was never publicly disclosed and that it remained between the President and CEO and certain employees in the corporate quality assurance department. Other employees of the company did not have access to it. I accept that assertion.

[49]           Air Transat also submitted that it had a reasonable expectation that the SMS and the information in the Report would remain confidential. It submitted that it would not have taken part in the program to implement the SMS without an assurance that the information would remain confidential. I also accept that assertion. Based on my reading of the record, I conclude that the facts clearly show that Air Transat and TC had agreed that the information would remain confidential. I based that on the following facts: Air Transat was taking part in a pilot project to help TC implement an SMS system throughout the airline industry. No one questions that Air Transat was taking part in that pilot project voluntarily. Many emails between Air Transat and TC show that they agreed to keep the information confidential. In her letter dated June 15, 2007, the Commissioner stated:

[translation]

The information contained in the observations is technical in nature and is confidential in that it is not available through other sources and was provided by Air Transat to Transport Canada confidentially. That information was treated as confidential by the third party, in that it was not disclosed to others by the third party. It is important to note that Air Transat voluntarily cooperated, as no regulatory provisions required its participation in the evaluation. Transport Canada conducted lengthy consultations with Air Transat in this matter and accepted the observations made by Air Transat. Consequently, Transport Canada maintained the use of 20(1)(b) and (d) of the Act.

[Emphasis added]

[50]           I note that there is a question about whether the report was based on information gathered during the regulatory investigation, meaning that the information is not confidential. However, although the title of the TC report refers to a “regulatory inspection”, it is clear that a regulatory inspection was not possible. At the time, there were no regulations regarding an SMS system. In fact, the purpose of the pilot project was to develop regulations regarding that system.

[51]           I accept the claims by Air Transat that the Report contains certain information regarding the SMS that were provided with the assurance that it would not be disclosed, such as the use of operational tools (pages 93, 95, 100 and 103) and other databases (pages 96, 98, 99, and 100). That information, the identity of the people who took part in the study, the reports on the inspection of Air Transat’s inspection steps, and even the summary of the results, which was not regulatory) are confidential information.

[52]           To be excluded under paragraph 20(1)(b), the information must also be provided by a third party. In this case, Air Transat is the third party. As stated above, there was no regulatory inspection; all observations by the inspectors in the Report were based on information provided by Air Transat in an setting of confidentiality. Unlike the situation in Porter, the inspectors did not make any regulatory conclusions. The inspectors made observations based on information provided by Air Transat, which they included in their Report. The observations cannot be separated from the information provided. Regardless the form in which it is eventually presented by TC, the information came from Air Transat and cannot be disclosed (Merck Frosst, at para 158; Porter, at para 40).

[53]           In conclusion, the information contained in the Report meets the four conditions for being considered confidential technical information. That information cannot be disclosed under paragraph 20(1)(b) of the AIA.

[54]           In light of my conclusions regarding paragraphs 20(1)(a) and 20(1)(b) of the AIA, I will not address the applicability of paragraphs 20(1)(c) and 20(1)(d).

[55]           If I am wrong in holding that the information contained in the Report is protected under paragraphs 20(1)(a) and 20 (1)(b) of the AIA, I find that disclosure should nonetheless be stopped by a stay of proceedings on the grounds of an abuse of process and a lack of procedural fairness due to TC’s failure to give Air Transat an opportunity to be heard before changing its position regarding the disclosure of the documents regarding it.

[56]           The access to information request was filed on March 22, 2005. It was related to more than 600 pages of material. TC refused to disclose 469 of those pages. On November 24, 2005, TC sent Air Transat a notice under section 27 of the AIA, asking Air Transat to provide its comments on the 469 pages that remained to be disclosed within 20 days. After TC extended the deadline, Air Transat had to respond by January 19, 2006, less than 60 days after receiving the notice, including the holiday period.

[57]           Following its response on January 19, 2006, Air Transat did not hear from TC or the Commissioner until July 5, 2012. On September 28, 2012, Air Transat responded to the letter dated July 5, 2012, advising TC that it was maintaining its objections to the disclosure of the information and explaining why. TC then continued to support Air Transat in its objections. Air Transat then heard nothing from TC or the Commissioner until April 18, 2016, when TC advised Air Transat that it was reversing its position and would follow the recommendation from the Commissioner’s office to disclose all the information, including the 21 pages that are the subject at issue here. TC did not give Air Transat the opportunity to make any submissions before changing its position.

[58]           It is my view that this goes against the right to be heard that is part of natural justice. That right is an integral part of an duty to act fairly, an obligation that extends to all administrative bodies acting under statutory authority (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at para 75, 209 DLR (4th) 1 [Moreau-Bérubé]; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, 88 DLR (3d) 671; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 DLR (4th) 44 [Cardinal]; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 20 [Baker]; Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para 81 [Therrien]). Indeed, it is sufficient that an administrative decision is likely to affect the rights, privileges or interests of an individual for the duty to act fairly to apply (Cardinal; Baker at para 20; Therrien at para 81).

[59]           Certainly, the nature and scope of the duty to act fairly vary (Moreau-Bérubé at para 75; Baker at para 21). A hearing is not always needed, but the administrative authority must at least allow the interested party to present its case before making a decision (Komo Construction Inc. et al. v. Commission des Relations de Travail du Québec et al, [1968] S.C.R. 172, at page 175, 1 DLR (3^d) 125; Turcotte v. Canada (Attorney General), 2002 FCT 230, at para 13, [2002] F.C.J. No. 292). This was not done in this case. After having been presented with the Commissioner’s conclusions, TC did not allow Air Transat to present its case against those conclusions before making a decision that was prejudicial to Air Transat. When I consider that with the fact that TC only gave Air Transat a single opportunity of less than 60 days to present its case in a matter that went on for more than 10 years, I must conclude that TC breached its duty to act fairly regarding Air Transat’s right to be heard.

[60]           Air Transat is also seeking to have the Commissioner’s report set aside. It claims: (1) that the delay between the start and end of the Commissioner’s investigation constituted a denial of natural justice; (2) that the Commissioner failed in her duty of audi alteram partem in the investigation process, which constitutes a breach of procedural fairness; (3) that the unreasonable delays in the investigation process meant that the Commissioner did not have jurisdiction to issue her report; and (4) that the non-compliance with the alleged confidentiality agreement between Air Transat and TC makes the conclusions in the Commissioner’s report unreasonable.

[61]           Air Transat stated that the delay of more than 10 years between the start of the investigation and the date on which the Commissioner’s report was published is unreasonable and amounts to a denial of natural justice.

[62]           There is no question that a delay of more than 10 years between the start and end of the Commissioner’s investigation is long. Air Transat cites Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, in support of its argument. In that decision, the Court affirmed that natural justice includes the right to be heard within a reasonable time. The Court stated the following in Blencoe:

[101]    […] delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period (see: R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

[102]    […] Where delay impairs a party’s ability to answer the complaint against him or her [...] then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy.

[63]           Thus, Air Transat must show that it suffered significant prejudice because there was a delay in the administrative proceedings.

[64]           In this regard, Air Transat showed that its document retention policy states that documents are only to be kept for a period of five years. For that reason, documents that Air Transat may have wanted to use in its defence were no longer available when the report was published. For example, the documents that were included in a letter from TC to Air Transat dated April 29, 2005 ,no longer existed.

[65]           Air Transat also showed that some TC and Air Transat employees who had significant knowledge of the confidentiality agreement between the two, as well as other relevant facts, were no longer employed at TC or Air Transat when the report was published. For example, two individuals who were responsible for the SMS at the time were no longer employed or had changed responsibilities at Air Transat; the “technical lead” for the project had left the company in 2011 and a second key person had returned to be a pilot-in-command with Air Transat in 2008.

[66]           Finally, Air Transat claimed that the memories of employees had faded after 10 years, and that Air Transat had suffered significant financial prejudice because of the difficulties caused by the delay (document destruction, loss of key employees, loss of relevant memories) when it was asked to reopen its file in 2012 and 2016. I accept all these arguments and find that Air Transat suffered significant prejudice because of the Commissioner’s delay.

[67]           I recognize that section 37 of the AIA does not impose any timeline on the Commissioner for completing her investigations and for communicating her recommendations. Under the AIA, the Commissioner is required to advise the federal institution of an investigation as soon as there is a complaint (section 32). If the Commissioner intends to recommend the disclosure of documents that affect a third party, the Commissioner must offer the third party an opportunity to make written representations (subsection 35(1)). The Commissioner alleged that she properly followed the procedure in this case. I agree.

[68]           However, there was also a procedure to be followed in Blencoe. Regardless of whether there are procedures that were followed, action must be taken to respect the standards of natural justice and procedural fairness. I find that a delay of 10 years in this case undermines the standards of natural justice and procedural fairness. The delay of more than 10 years in completing the Commissioner’s investigation was overly long, and significant prejudice was established by Air Transat as a result of that delay. Under the circumstances, a stay of proceedings is an appropriate remedy, as contemplated in Blencoe.

[69]           Given my conclusions regarding the issues addressed thus far, I will not comment on the other claims put forth by Air Transat.

JUDGMENT in T-739-16

THE COURT ORDERS that:

1. The application for judicial review is allowed. The 21 pages of the report referred to in the access request and that have not yet been disclosed are protected under paragraphs 20(1)(a) and 20(1)(b) of the AIA. If I am wrong in that regard, disclosure is nonetheless stopped by a stay of proceedings on the grounds of abuse of process and a lack of procedural fairness due to: (1) the failure by TC to give Air Transat an opportunity to be heard before changing its position regarding the disclosure of the documents regarding it; (2) the delays caused by the Commissioner; and (3) the significant prejudice suffered by Air Transat as a result of the delays; and
2. The Court maintains its jurisdiction to address the issue of costs if the parties are not able to resolve it.

“B. Richard Bell”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-739-16
STYLE OF CAUSE:		AIR TRANSAT A.T. INC. v. TRANSPORT CANADA / MINISTER OF TRANSPORT OF CANADA and INFORMATION COMMISSIONER OF CANADA
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	June 13, 2017
JUDGMENT AND REASONS:	BELL J.
DATED:	October 13, 2017

APPEARANCES:

Karl Delwaide and Marie-Gabrielle Bélanger	For the Applicant
Bernard Letarte and Ludovic Sirois	FOR THE RESPONDENT TRANSPORT CANADA/ MINISTER OF TRANSPORT OF CANADA
Diane Therrien and Guy Régimbald	FOR THE RESPONDENT INFORMATION COMMISSIONER OF CANADA

SOLICITORS OF RECORD:

Karl Delwaide and Marie-Gabrielle Bélanger	For the Applicant
Bernard Letarte Ludovic Sirois	For the Respondent TRANSPORT CANADA/ MINISTER OF TRANSPORT OF CANADA
Diane Therrien and Guy Régimbald	For the Respondent INFORMATION COMMISSIONER OF CANADA