Digests

St. Joseph Corp. v. Canada (Public Works and Government Services)

T-2785-97

2002 FCT 274, Heneghan J.

12/3/02

23 pp.

Application for judicial review of PWGSC to disclose certain third party information and records pursuant to Access to Information Act--Applicant, carrying on printing business through subsidiary St. Joseph Printing Ltd., sought to acquire assets of Canada Communications Group (CCG) which federal government intended to privatize--Applicant engaged in negotiations therefore, entering into confidentiality agreement with government concerning information (analyses, compilations, forecasts, studies, etc.) acquired in course of investigating operations of CCG, as part of bidding process-- Applicant ultimately acquired CCG's assets--Respondent received request, pursuant to Act, for production of documents related to government's plan to privatize CCG and subsequent purchase by applicant--Issue whether records in question exempt from disclosure pursuant to Act, s. 20(1)(a), (b), (c), (d), (2)--Applicant invoking trade secrets; information of confidential, commercial, scientific, technical nature consistently treated as confidential; information having clear potential to materially injure its business interest and competitive position in printing industry; disclosure of records could reasonably be expected to interfere with contractual or other negotiations of third party; records containing results of testing done for applicant for fee as part of sale of CCG's assets--Application allowed in part--Under Act, s. 44, onus of proof resting with party resisting disclosure--"Heavy burden" on party attempting to prevent disclosure: Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.)--With respect to trade secrets (s. 20(1)(a)), affidavit evidence filed by applicant not meeting burden or proof as affidavit speaking only in general terms and more in nature of speculation than statement of facts (Société Gamma Inc. v. Canada (Department of Secretary of State) (1994), 79 F.T.R. 42 (F.C.T.D.); Maislin Industries Ltd. v. Canada (Minister for Industry, Trade and Commerce), [1984] 1 F.C. 939 (C.A.)--With respect to disclosure of confidential financial, commercial, scientific or technical information (s. 20(1)(b)), insufficient that third party state, without evidence, information in question confidential (Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D.)--Conflicting authority as to effect to be given to confidentiality agreement such as one in issue herein--Court may take confidentiality agreements into account in assessing objective confidentiality of information in issue--However, confidentiality agreements remain subordinate to Act--Considering paucity of evidence as to how requested records objectively confidential and how maintained in confidential manner, applicant has not met evidentiary burden to exempt all requested records under Act, s. 20(1)(b)--Test for application of Act, s. 20(1)(c), (d) that of reasonable expectation of probable harm: Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1989), 24 F.T.R. 32 (F.C.T.D.); affd (1990), 67 D.L.R. (4th) 315 (F.C.A.)--Affidavit herein only speculating as to probable harm--As to Act, s. 20(2), in absence of evidence fee paid, Court unable to find exemption thereunder established--Applicant's request names of third parties mentioned in various documents throughout requested records be deleted because entitled to third party notice rejected based on Tridel Corp. v. Canada Mortgage and Housing Corp (1996), 115 F.T.R. 185 (F.C.T.D.)--As to argument lease documents commercial and financial in nature and should not be disclosed, evidence tendered by applicant on issue falling short of establishing reasonable expectation of probable harm --As to solicitor-client privilege, solicitor's advice herein prepared expressly for use by non-client party, therefore privilege waived: Stevens v. Canada (Prime Minister), [1997] 2 F.C. 759 (T.D.); affd [1998] 4 F.C. 89 (C.A.)--As to common interest privilege, legitimate interest in protecting legal advice provided to parties to commercial transaction such as one herein--No apparent impediment to extending benefit of common interest privilege to legal opinions exchanged herein, particularly in light of joint submissions from counsel for parties--Therefore, information described in appendix "A", legal opinions exempt from disclosure for reasons outlined herein--Remainder of records be disclosed as applicant failed to adduce evidence of sufficient probative value to meet legal test of exemption for disclosure under Act--Documents to remain undisclosed pending expiry of any applicable appeal period--Access to Information Act, R.S.C., 1985, c. A-1, ss. 20(1)(a), (b), (c), (d), (2), 44.