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D. Cases in Progress – Information Commissioner as an Intervener

  1. SNC Lavalin Inc.
  2. v. Canada (Minister of International Cooperation and Minister of Foreign Affairs) and Canada (Information Commissioner)

A-309-03

Nature of Proceedings

The Information Commissioner is an intervener in this appeal from the judgment rendered by Justice Gibson of the Federal Court in SNC Lavalin Inc. v. Canada (Minister for International Co-operation and the Minister of Foreign Affairs), 2003 FCT 681, T-387-01, 30 May 2003.

Factual Background

The access request was received by the Canadian International Development Agency (CIDA) on December 15, 2000. The requester wanted to obtain "[a]uditors’ working papers, including all records used by their auditors and by CIDA in the auditing process, for the Comprehensive Audit (Feb. 99) of the River Nile Protection and Development project." The requester also stated he had read the audit and that the audit had found, among other things, problems with project objectives.

As required by section 27 of the Act , CIDA made available to SNC Lavalin some documents that were responsive to the request, so that it could make representations about the intended disclosure. SNC Lavalin made representations as to why the records or parts thereof should not be disclosed. The head of CIDA decided to release the records or parts thereof.

SNC Lavalin applied for a review by the Federal Court, pursuant to section 44 of the Act, claiming that the records contained information that should properly be exempted pursuant to sections 20 (third-party confidential business information) and 19 (personal information). The Federal Court dismissed SNC Lavalin’s application.

SNC Lavalin appealed the judgment. Its grounds for appeal included a contention that the Application Judge had erred in law in concluding that a third party was not entitled to seek an exemption of records pursuant to section 19 of the Act and that the judge had erred in fact in concluding that no further exemptions pursuant to section 19, beyond those identified by the Minister, were warranted.

The Information Commissioner brought a motion to the Federal Court of Appeal, requesting to intervene in the matter and was granted leave to intervene with full party status.

At the request of SNC Lavalin, the Federal Court of Appeal issued an order on September 4, 2003, holding the appeal in abeyance until there was a final disposition in the Heinz case (Attorney General of Canada v. H.J. Heinz Company of Canada, Court file No. A-161-03). The Heinz case also involved the issue of whether a third party applying for a review of a government decision to disclose records pursuant to section 44 could raise section 19 of the Act. The final judgment in Heinz was rendered by the Supreme Court of Canada on April 21, 2006, with the majority deciding that a third party could raise the exemption for personal information set out in section 19 of the Act.

Following this judgment, the SNC Lavalin case was resumed, with all parties filing their memorandum of fact and law. The Information Commissioner’s submissions were limited to the section 19 issue and invited the Federal Court of Appeal to offer further guidance on questions arising from third parties raising the personal information exemption, such as which party would bear the burden of proving that no exceptions applied to allow the release of personal information, if the records were found to include such information.

Issues Before the Court

The primary issue on appeal regards the applicability of paragraphs 20(1)(b), (c), and (d) of the Act to the materials the Minister intends to release to the access requester. SNC Lavalin claims the Federal Court made errors in determining that there was insufficient proof to apply these exemptions. The Minister is arguing that the Federal Court judgment should be upheld. The Information Commissioner has made representations regarding only the section 19 aspect of the case, submitting that the appellant has failed to show that there is further personal information in the record, beyond that acknowledged by the Federal Court.

Findings

The Federal Court found that a third party who is entitled to make representations pursuant to section 28 of the Act is not entitled to seek exemption of the records by virtue of section 19 of the Act [para. 24]. SNC Lavalin could not rely on the mandatory exemption provided for in section 19 of the Act in responding to the notice provided to it in the matter under section 27 of the Act [para. 27].

Despite this finding, the Federal Court considered the records at issue, the relevant elements of the definition of ‘personal information’, and the basic principles of interpretation of the Act, and was "satisfied that no exemptions pursuant to section 19 of the Act beyond those […] proposed on behalf of the Respondent Ministers […] [were] warranted" [para. 27].

On the question of the applicability of the section 20 exemption, the Court applied the analysis proposed in Air Atonabee Ltd. v. Canada (Minister of Transport),27 F.T.R. 194.  The Court was satisfied that "certain of the information reflected in the records proposed to be disclosed [was] of a financial nature"; that "certain of the information [was] confidential in the eyes of the Applicant"; that "such information was supplied to CIDA by the Applicant"; and that this information had been "treated consistently in a confidential manner by the Applicant".

However, the Court was not satisfied that the information was confidential on an objective standard. The paragraph 20(1)(b) exemption therefore did not apply [para. 35].

As for paragraph 20(1)(c) of the Act, the Court concluded the applicant’s evidence was too speculative to demonstrate a reasonable expectation of financial loss and prejudice to its competitive position if the records were disclosed [para. 36].

Finally, on the question of the applicability of the paragraph 20(1)(d) exemption, the Court was again of the view that the evidence was insufficient to demonstrate a reasonable expectation that the release of the records would harm the Applicant’s contractual or other negotiations [paras. 37-38]. The Court concluded that the applicant had failed to meet the burden of proof required to apply the section 20 exemption and dismissed the application [paras. 39-40].

Judicial Outcome

The application was dismissed. SNC Lavalin appealed the judgment. 

Action Taken / Future Action Contemplated

The appeal hearing will be scheduled shortly.



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