Canadian Transportation Agency (Re), 2025 OIC 26

Date : 2025-04-01 
OIC file number : 5822-05662 
Access request number : A-2022-00012

Summary

The complainant alleged that the Canadian Transportation Agency (CTA) had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for records relating to Case No. 17‐05835. The allegation falls under paragraph 30(1)(a) of the Act.

The parties did not demonstrate that the requirements of the applied exemptions were met for the third-party information or for an exchange of advice withheld under section 23.

The Information Commissioner ordered that the CTA disclose certain information where the parties had not demonstrated that the requirements of the exemptions were met and to re-exercise discretion taking into account all relevant factors for the information it was permitted to withhold under paragraph 21(1)(b) and section 23. The CTA gave notice to the Commissioner that it would comply with the order. The complaint is well founded.

Complaint

[1]        The complainant alleged that the Canadian Transportation Agency (CTA) had improperly withheld information under paragraph 20(1)(b) (confidential third-party financial, commercial, scientific or technical information), paragraph 20(1)(c) (financial impact on a third party), paragraph 20(1)(d) (negotiations by a third party), paragraph 21(1)(a) (advice or recommendations), paragraph 21(1)(b) (accounts of consultations or deliberations) and section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for records relating to Case No. 17‐05835. The allegation falls under paragraph 30(1)(a) of the Act.

[2]        During the investigation, the complainant decided it was no longer necessary for the Office of the Information Commissioner (OIC) to investigate the application of paragraphs 20(1)(b), 20(1)(c) or 20(1)(d), other than on pages 1, 13, 16-17 and 21.

Investigation

[3]        When an institution withholds information that includes information related to a third party, the third party and/or the institution bears the burden of showing that refusing to grant access is justified.

[4]        On December 2, 2024, the CTA disclosed factual information, which it had withheld on pages 5 and 38 under paragraphs 21(1)(a) and 21(1)(b) when it responded to the access request. The CTA continued to withhold the remaining information under the exemptions listed above.

Paragraph 20(1)(b): confidential third-party financial, commercial, scientific or technical information

[5]        Paragraph 20(1)(b) requires institutions to refuse to disclose confidential financial, commercial, scientific or technical information provided to a government institution by a third party (that is, a private company or individual, but not the person who made the access request).

[6]        To claim this exemption, institutions must show the following:

• The information is financial, commercial, scientific or technical.
• The information is confidential.
• The third party supplied the information to a government institution.
• The third party has consistently treated the information as confidential.

Does the information meet the requirements of the exemption?

[7]        The third-party information at issue, which the CTA withheld concurrently under paragraphs 20(1)(b), 20(1)(c) and 20(1)(d), consists of:

• A portion of an email relating to file no. 17-05835 on pages 1, 17 and 21; and
• The body of an email from Air Transat to the CTA in relation to file no. 17-05835 on pages 13 and 16.

[8]        Both Air Transat and the CTA were provided the opportunity to demonstrate the information meets the requirements of paragraph 20(1)(b). Air Transat took issue in particular with disclosure of the specific amount of the payment on pages 1, 17 and 21 and a phrase on pages 13 and 16. The CTA declined to make representations with respect to its application of exemptions to third-party information and indicated that it is willing to release the cheque amount.

[9]        I accept that disclosure of the information at issue would amount to disclosure of information supplied by Air Transat. Based on Air Transat’s representations, I also find that the third party has consistently treated the information as confidential. As such, most of the information meets the third and fourth requirements of the exemption.

[10]      The first requirement of paragraph 20(1)(b) is that the information be financial, commercial, scientific or technical in nature. Although I accept that the amount of the cheque is financial information, it has not been established by Air Transat or the CTA how any of the other information fits within the common definitions of these terms.

[11]      In the decision Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, the Supreme Court of Canada stated that that the terms “financial, commercial, scientific or technical” should be given their ordinary dictionary meanings. According to dictionary definitions, the word “commercial” means “concerned with or engaged in commerce”, “making or intended to make a profit.” The information at issue would seem to relate to payment of a penalty and passenger compensation. None of this information would appear to concern commerce.

[12]      I am not convinced by Air Transat’s assertion that the information is commercial by virtue of relating to a commercial flight or because it affects the operation or management of its business. Such a broad interpretation was rejected in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) et al., 2006 FCA 157 at para. 69, where the Federal Court of Appeal explained: 

[T]he word “commercial” connotes information which in itself pertains to trade (or commerce). It does not follow that merely because NAV CANADA is in the business of providing air navigation services for a fee, the data or information collected during an air flight may be characterized as “commercial”.

[13]      I conclude that only the amount of the payment meets the first requirement of the exemption.

[14]      The second requirement of paragraph 20(1)(b) is that the information be confidential by an objective standard. As a result, a party claiming that information is confidential under paragraph 20(1)(b) must establish that each of the following conditions are met:

• The information must not be available from sources otherwise accessible by the public;
• It must originate and be communicated with a reasonable expectation that it will not be disclosed;
• It must be communicated, whether required by law or otherwise, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest. This relationship must be fostered for public benefit by the confidential communication. (see:  Air Atonabee Ltd. v. Canada (Minister of Transport) , [1989] F.C.J. No. 453).

[15]      The complainant submitted evidence that the CTA previously released the amount paid by Air Transat relating to case number 17-05835. The evidence shows that an access request was made to the CTA in 2018 (access request A-2018-00065) and the record, as released, shows the amount of a payment made by “Air Transat A.T. Inc.” in relation to “NOV# 17-05835”. The CTA did not deny having released this information and indicated agreement that the information could be disclosed. Air Transat, for its part, indicated it could not independently validate that the information had been disclosed. Air Transat indicated it was never consulted on disclosure and did not consent to it. Air Transat argued that the disclosure of the amount paid in a separate access request “does not compel its recognition as public information and does not override Air Transat’s right to confidentiality regarding this information”.

[16]      Neither Air Transat nor the CTA have argued, let alone provided evidence, that the portion of the penalty paid to the Receiver General was released inadvertently in access request A-2018-00065. While the Federal Court has recognized that inadvertent disclosure does not undermine the confidential nature of otherwise objectively confidential information, the circumstances in this complaint are distinguishable from such jurisprudence. In this case, there is no evidence that the prior disclosure was inadvertent. The circumstances of the penalty and the conditions of payment are already generally in the public domain, including the monetary conditions of the penalty.

[17]      I find the amount of the cheque is public by virtue of having been released through an access request.

[18]      Within the response under complaint, the CTA released certain details related to Air Transat’s compliance with the Notice of Violation. By virtue of its release elsewhere in the response, this information is publicly available.

[19]      I find that the fact that the CTA received a payment and the amount of the payment (pages 1, 17 and 21) are not objectively confidential.

[20]      For information to be confidential by an objective standard, there must also be a reasonable expectation of confidence that the information will not be disclosed. Whether or not that reasonable expectation of confidence exists will depend on the facts, including the substance and purpose of the information and how it came to be under the government institution’s control.

[21]      The withheld information on pages 13 and 16 relates to Air Transat complying with the requirements set out by the CTA in a notice of violation. I am of the view that Air Transat could not have reasonably expected that general details regarding Air Transat’s compliance with the CTA’s notice would be held in confidence. Neither Air Transat nor the CTA provided evidence that there was any such understanding between the parties. A generic confidentiality statement at the bottom of Air Transat’s email and that the email was sent by Air Transat’s legal counsel is not sufficient to establish that the information on pages 13 and 16 was provided with a reasonable expectation of confidence that it would not be disclosed.

[22]      Turning to the third condition of objective confidentiality, I note that the CTA is a quasi-judicial tribunal and regulator, while Air Transat is subject to the CTA’s oversight. The CTA allowed Air Transat to offset the amount paid in compensation to passengers against the monetary penalty levied against Air Transat. This appears to be a discretionary benefit that the CTA bestowed on Air Transat. Given these circumstances, I am of the view that the public has a legitimate interest in understanding how Air Transat complied with the CTA’s notice, and that keeping this information confidential does not foster the relationship between the CTA and Air Transat for the public benefit. Air Transat argues that disclosure would “impede the privileged exchange between the CTA and Air Transat as well as other airlines”. I am not convinced that disclosure could reasonably result in third parties not complying with the CTA’s notices or not taking advantage of discretionary benefits offered by the CTA for fear of the information being made public. I found no evidence that this relationship is contrary to the public interest.

[23]      In light of the above, I find that none of the information meets all three conditions of objective confidentiality.

[24]      I conclude that the information does not meet the requirements of paragraph 20(1)(b).

Paragraph 20(1)(c): financial impact on a third party

[25]      Paragraph 20(1)(c) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to have a material financial impact on a third party (that is, a private company or individual, but not the person who made the access request) or harm its competitive position.

[26]      To claim this exemption with regard to financial impact on a third party, institutions must show the following:

• Disclosing the information could result in material financial loss or gain to the third party.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[27]      To claim this exemption with regard to competitive position, institutions must show the following:

• Disclosing the information could injure the competitive position of the third party.
• There is a reasonable expectation that this prejudice could occur—that is, the expectation is well beyond a mere possibility.

[28]      When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[29]      The CTA applied paragraph 20(1)(c) concurrently with paragraphs 20(1)(b) and 20(1)(d) to withhold the information described above on pages 1, 13, 16-17 and 21.

[30]      Air Transat contends that disclosure would reveal sensitive information to its competitors, which it detailed in its original and subsequent representations. Air Transat’s representations on this point appear to be entirely speculative. Given the nature of the information, it remains unclear how disclosure could, for example, reveal insight into Air Transat’s lobbying efforts.

[31]      Air Transat asserted that disclosure of the cheque amount on pages 1, 17 and 21 could materially impact the judicial outcomes in litigation proceedings.

[32]      Paragraph 20(1)(c) requires evidence showing the financial impact disclosing the information could have on a third party or the harm that could be caused to its competitive position, and how likely that impact would be. The parties must demonstrate a clear and direct connection between the disclosure of specific information and a risk of harm well beyond the merely possible (see: Merck supra , paras. 197, 206). The courts have indicated that it is very hard to show that harm can reasonably be expected to result from the disclosure of publicly available information (see Merck supra at para. 208).

[33]      Air Transat did not provide sufficient representations to establish whether disclosure would result in material harm to Air Transat or its competitive position. Although Air Transat has indicated there is a direct connection between disclosure and the identified harm, disclosure would only appear to reveal information that is already in the public domain. Furthermore, while Air Transat asserted that disclosure of the exact apportionment of the penalty would impact litigation proceedings, Air Transat failed to explain what that impact would be nor what would be the likelihood of that occurring. I am not convinced that disclosure of these facts in this context could reasonably be expected to result in the harms identified by Air Transat.

[34]      I conclude that the information does not meet the requirements of paragraph 20(1)(c).

Paragraph 20(1)(d): negotiations by a third party

[35]      Paragraph 20(1)(d) requires institutions to refuse to disclose information that, if disclosed, could reasonably be expected to interfere with the contractual or other negotiations of a third party (that is, a private company or individual, but not the person who made the access request).

[36]      To claim this exemption, institutions must show the following:

• A third party is or will be conducting contractual or other negotiations.
• Disclosing the information could interfere with those negotiations.
• There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.

[37]      When these requirements are met, and the third party to whom the information relates consents to its disclosure, subsection 20(5) requires institutions to reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[38]      The CTA applied paragraph 20(1)(d) concurrently with paragraphs 20(1)(b) and 20(1)(c) to withhold the information described above on pages 1, 13, 16-17 and 21.

[39]      Interference, in the context of paragraph 20(1)(d), has been interpreted in the courts as meaning “obstruction” – as indicated by the corresponding word for interference in the French version, “entraver”. (see Blood Band v. Canada (Minister of Indian Affairs and Northern Development) , 2003 FC 1397, para. 49; Canada (Information Commissioner) v. Canada (Minister of External Affairs) , [1990] 3 F.C. 665 (F.C.T.D.), paras. 24-25).

[40]      Air Transat asserts that disclosure would interfere with “financial negotiations” with the CTA and other regulatory bodies. The information at issue here relates to Air Transat’s compliance with the CTA’s notice and its payment of the penalty outlined therein. None of the information at issue relates to negotiations. Air Transat did not provide sufficient detail to allow me to identify any connection to current or anticipated negotiations with the CTA or any other regulatory body that would be impacted by disclosure. Moreover, the public availability of the amount paid suggests that the link between disclosure and harm is not clear and direct (see Merck supra at para. 208).

[41]      I conclude that the information does not meet the requirements of paragraph 20(1)(d).

Section 23: solicitor-client and litigation privilege

[42]      Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[43]      To claim this exemption with regard to solicitor-client privilege, institutions must show the following:

• The information consists of communication between a lawyer or notary and his or her client.
• That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
• The parties intend the communication and advice to remain confidential.

[44]      To claim this exemption with regard to litigation, institutions must show the following:

• The information was prepared or gathered for the dominant purpose of litigation.
• The litigation either is in progress or is reasonably expected to occur.

[45]      Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[46]      When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.

Does the information meet the requirements of the exemption?

[47]      The CTA applied section 23 to a significant amount of information, in many cases concurrently with paragraphs 21(1)(a) and 21(1)(b). Air Transat has asserted that section 23 applies to its information as well, under litigation privilege.

[48]      Although Air Transat has identified relevant litigation, I am of the view that it has failed to support the assertion that the information in question was prepared or gathered for the dominant purpose of litigation. Rather, the information seems to have been prepared and gathered for the purpose of complying with the CTA’s notice. Air Transat asserts that the information was prepared for the dominant purpose of avoiding litigation. With respect, even if I found this to be the case, this exemption is intended to protect information to be used in litigation, not information used to avoid it. I do not find that Air Transat has established how the information related to Air Transat, found on pages 1, 13, 16-17 and 21, meets the requirements of section 23.

[49]      I invited the CTA to make representations as to how the information on pages 1, 13, 16-17 and 21 meets the requirements of section 23, but it declined to do so. Consequently, I must conclude that the information on pages 1, 13, 16-17 and 21 does not meet the requirements of section 23.

[50]      In most cases where section 23 was applied by the CTA, I accept that the information consists of communications between the CTA and its lawyers relating directly to the seeking and giving of legal advice. Based on the nature of the information, the representations received, and a review of publicly available information, I find that the CTA intended this information to remain confidential.

[51]      Regarding the correspondence found on pages 306-307, however, I am not convinced that this information meets the requirements of solicitor-client privilege. The exchange is between lawyers from the CTA and the Canadian Radio-television and Telecommunications Commission (CRTC). The CTA claims that “the communications between the Agency’s counsel and CRTC’s counsel were integral to the Agency’s counsel research for the purpose of providing legal advice to the Agency”. However, the CTA and the CRTC have independent legal representation rather than shared counsel under the Department of Justice. As such, it is unclear how legal advice could be communicated between the CTA and the CRTC without breaking solicitor-client privilege. The CTA’s explanation failed to address the how the information could remain privileged where it was disclosed outside of the solicitor-client relationship.

[52]      I conclude that the information meets the requirements of section 23, except for the information on pages 306-307.

[53]      Where the information meets the requirements of section 23, I did not examine the other exemptions the CTA applied to the same information.

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[54]      Since some of the information meets the requirements of section 23, as outlined above, the CTA was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, the CTA had to consider all the relevant factors for and against disclosure.

[55]      An institution’s decision not to disclose information must be transparent, intelligible and justified. An institution’s explanation will be sufficient when the institution provides details of how it made the decision and when the documents related to the decision-making process shed light on why the institution proceeded as it did.

[56]      Although the CTA listed some factors it considered when it decided to withhold the information on pages 306-307, it provided no representations as to the factors it considered when it decided not to disclose the information that it withheld under section 23 on other pages.

[57]      I must conclude that the CTA did not show that it had reasonably exercised its discretion.

Paragraph 21(1)(b): accounts of consultations or deliberations

[58]      Paragraph 21(1)(b) allows institutions to refuse to disclose accounts of consultations or deliberations in which government employees, ministers or members of a minister’s staff took part.

[59]      To qualify for exemption under paragraph 21(1)(b), the records that contain the information must have been created less than 20 years before the access request was made.

[60]      To claim this exemption, institutions must then show the following:

• The information is an account—that is, a report or a description.
• The account is of consultations or deliberations.
• At least one of an institution’s directors, officers or employees, a minister or a member of a minister’s staff was involved in the consultations or deliberations.

[61]      When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.

[62]      However, subsection 21(2) specifically prohibits institutions from using paragraph 21(1)(b) to refuse to disclose the following: 

• records that contain reasons for or accounts of decisions that affect the rights of a person made by institutions when exercising discretionary powers or carrying out adjudicative functions; and
• reports prepared by consultants or advisers who were not directors, officers or employees of an institution or members of a minister’s staff at the time.

Does the information meet the requirements of the exemptions?

[63]      Most of the information withheld under paragraph 21(1)(b) is either outside of the scope of the complaint, has been released or I have accepted that section 23 applies to the same information. The only information that remains to be analyzed was withheld exclusively under paragraph 21(1)(b) on page 10 of the records.

[64]      I accept that the information withheld on page 10 is an account of an internal consultation, created less than 20 years before the access request was made and involving several CTA employees.

[65]      I conclude that the information at issue meets the requirements of paragraph 21(1)(b).

Did the institution reasonably exercise its discretion to decide whether to disclose the information?

[66]      Since the information meets the requirements of paragraph 21(1)(b), the CTA was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, CTA had to consider all the relevant factors for and against disclosure.

[67]      The CTA provided no representations as to the factors it considered when it decided not to disclose the information it withheld under paragraph 21(1)(b).

[68]      I must conclude that the CTA did not show that it had reasonably exercised its discretion.

Outcome

[69]      The complaint is well founded.

Order

I order the Chairperson of the Canadian Transportation Agency to do the following:

1. Disclose the information withheld under paragraphs 20(1)(b), 20(1)(c) and 20(1)(d) on pages 1, 13, 16-17 and 21;
2. Disclose the information withheld under section 23 on pages 306-307; and
3. Re-exercise her discretion to decide whether to disclose the information to which the CTA applied paragraph 21(1)(a), paragraph 21(1)(b) and section 23, taking into account all relevant factors for and against disclosure.

Initial report and notice from institution

On March 13, 2025, I issued my initial report to the Chairperson of the Canadian Transportation Agency setting out my order.

On March 31, 2025, the CTA’s ATIP Coordinator, Secretariat, Secretariat and Registrar Services gave me notice that the CTA would be implementing the order. The CTA indicated that it will disclose the information on pages 1, 13, 16-17, 21, 306-307. It also provided details of its re-exercise of discretion, taking into account several relevant factors, including the context, sensitivity of the information, the public interest and the purpose of the exemptions.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. The complainant and/or institution must apply for a review within 35 business days after the date of this report. When they do not, third parties may apply for a review within the next 10 business days. Whoever applies for a review must serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by these deadlines, the order(s) takes effect on the 46th business day after the date of this report.

Other recipients of final report

As required by subsection 37(2), this report was provided to Air Transat.