Lexicon

A

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‘‘Access to Information Request Form"

Means the form prescribed by the designated Minister pursuant to paragraph 70(1)(b) of the Act for the purpose of requesting access to records under the control of a government institution; (Regulation, s.2)

"Appropriate officer"

Means the officer of a government institution whose title and address is published pursuant to paragraph 5(1)(d) of the Act

“Alternative format”

With respect to a record, means a format that allows a person with a sensory disability to read or listen to that record; (ATIA, s.3)

C

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‘‘Classes of investigations’’

The classes of investigations for the purpose of paragraph 16(4)(c) of the Act are the classes of investigations set out in Schedule II of the Regulations. (Regulations, s.10)

‘‘Confidential Information’’

Whether information is confidential depends upon its contents, purposes and the circumstances in which it is communicated i.e. that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on its own; that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed; and that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the third party supplying it that it is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for the public benefit by confidential communication

‘‘Council’’

For the purposes of subsection 69(1), “Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet. (ATIA, s.69(2)).

“Court”

Means the Federal Court; (ATIA, s.3).

D

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“Defence of Canada or any state allied or associated with Canada”

Includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada; (ATIA, s.15).

“Designated Minister”

In relation to any provision of this Act, means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of that provision; (ATIA, s.3)

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F

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“Foreign state”

Means any state other than Canada; (ATIA, s.3).

G

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“Government institution”

Means any department or ministry of state of the Government of Canada listed in Schedule I or any body or office listed in Schedule I; (ATIA, s.3).

H

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“Head”

In respect of a government institution, means

(a) in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada presiding over that institution, or

(b) in any other case, the person designated by order in council pursuant to this paragraph and for the purposes of this Act to be the head of that institution; (ATIA, s.3).

I

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‘‘’Financial, commercial, scientific or technical information’’

Information will be deemed to be financial, commercial, scientific or technical when it relates to material that is commonly referred to as such, in keeping with the ordinary dictionary definition of those terms. it is sufficient that the information “relate or pertain” to matters of finance, commerce, science or technical matters, as those terms are “commonly understood”.

“Information Commissioner”

Means the Commissioner appointed under section 54; (ATIA, s.3).

“Investigation”

For the purposes of paragraphs 16(1)(b) and (c), “investigation” means an investigation that

(a) pertains to the administration or enforcement of an Act of Parliament;

(b) is authorized by or pursuant to an Act of Parliament; or

(c) is within a class of investigations specified in the regulations; (ATIA, s.16)

‘‘Investigative Bodies’’

The investigative bodies for the purpose of paragraph 16(1)(a) of the Act are the investigative bodies set out in Schedule I to these Regulations. (Regulations, s.9)

L

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‘‘Law of Canada

A 'law of Canada' is not defined in the Access to Information Act. However, the supreme court of Canada in Quebec North Shore Paper Co. v. C.P. Ltée, [1977] 2 S.C.R. 1054 and McNamara Construction (Western) Ltd. and al. v. The Queen, [1977] 2 S.C.R. 654 made it clear that these terms encompasses all Acts enacted by the Parliament of Canada together with any regulations issued there under. As well, the Canadian Bill of Rights makes it clear that the expression also includes any order or rule issued under those Acts or regulations. Thus, it is a very wide term.

P

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“Personal information”

means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,

(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, fingerprints or blood type of the individual,

(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,

(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,

(g) the views or opinions of another individual about the individual,

(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and

(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,

but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include

(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,

(i) the fact that the individual is or was an officer or employee of the government institution,

(ii) the title, business address and telephone number of the individual,

(iii) the classification, salary range and responsibilities of the position held by the individual,

(iv) the name of the individual on a document prepared by the individual in the course of employment, and

(v) the personal opinions or views of the individual given in the course of employment,

(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services,

(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and

(m) information about an individual who has been dead for more than twenty years;

(Pivacy act, s.3)

R

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“Record”

Includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof; (ATIA, s.3).

S

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“Sensory disability”

Means a disability that relates to sight or hearing; (ATIA, s.3).

“Solicitor-client privilege”

There are two distinct branches of solicitor/client privilege, the legal advice privilege and the litigation privilege (which is sometimes called the lawyers' brief privilege). The legal advice privilege extends to all communications written or oral, passing between solicitor and client for the purpose of obtaining legal advice. It is not necessary for the purpose of the legal advice privilege that the solicitor have actually been asked to give the advice: preliminary communications made by the client to a solicitor for the purpose of asking the solicitor to give advice are also privileged. As for the litigation privilege, it protects from disclosure communications between a solicitor and a client or with third parties which are made in the course of preparation for litigation, whether existing or contemplated, such as an expert's report where the dominant purpose of obtaining the report was for the purpose of litigation.

“Subversive or hostile activities”

means

(a) espionage against Canada or any state allied or associated with Canada,

(b) sabotage,

(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,

(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,

(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and

(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada. (ATIA, s.15).

T

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‘‘Trade secrets’’

The expression “trade secrets’ is not yet a term of art in Canadian law nor is it defined in the Act. Generally speaking, however, a trade secret is information acquired by a party which a third party agrees, knows or ought reasonably to know, is confidential and which is not generally known. Any information, formula, pattern, device process, tool, mechanism, compound or compilation of information that a company or its employees produces or acquires for the purposes of the company's business can constitute a trade secret or, at least, confidential information. Some common examples of trade secrets are chemical formulas and secret processes. Examples of confidential information which has been protected by Canadian Courts are customer, supplier and employee lists.

“Third party”

In respect of a request for access to a record under this Act, means any person, group of persons or organization other than the person that made the request or a government institution; (ATIA, s.3).

W

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«Where disclosure could reasonably be expected»

While there has been only a few Federal Court decisions on the interpretation of this provision, all of which date back to the early 1990’s, there has been jurisprudence dealing with the prejudice portion of the test required under paragraphs 20(1)(c) and (d) which contain the same wording. Since legislative draftsmen are supposed to respect the principle of uniformity of expression, each term contained in a statute should have one and only one meaning when it is used in similar circumstances. Therefore, the jurisprudence of the Federal Court of Canada made, in the context of section 20, may also be applied in the context of this provision.

In Air Atonabee v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (T.D.), the Court held that the test is whether, assuming use of the information, its disclosure would give rise to a reasonable expectation of probable harm. The burden of proof is on the party resisting disclosure, and to satisfy the requirement of this exemption, there must be evidence as to the way in which the information will cause harm and the degree of harm it will cause.

The evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm. However, one must clearly distinguish between 'direct causation' and 'direct causality'; the former being the test to be applied under injury exemptions, the latter being explicitly rejected by the Court of Appeal in Canada Packers Inc. v. Minister of Agriculture et al., [1989] 1 F.C. 47 (C.A.). 'Direct causation' requires a direct causal link - the person resisting disclosure must bring specific evidence which would show that there is a link arising from the disclosure which would result in the harm. To put it another way, there must be some logical explanation to show why disclosure could lead to a particular identifiable harm. However, the person resisting disclosure does not have to prove a 'direct causality' (i.e. that the disclosure of the requested information would, by itself, cause the specific harm). In other words, it is not necessary to prove that disclosure could result directly in producing the specific harm.

In Information Commissioner v. Immigration and Refugee Board (1997), 140 F.T.R. 140 the Federal Court Trial Division characterized the injury test in paragraph 16(1)(c) of the Act as a “confident belief”, as follows:

The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.

A high standard of proof is necessary to establish an exemption from disclosure on grounds of financial harm or contract interference. To prove harm, one must be able to trace, track, illustrate and show how disclosure of specific information could lead to the harm alleged.

Under the access law, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se (i.e. inherently). However if the information is, in fact, confidential - this could increase the likelihood that it might be able to meet the test. The standard of proof for substantial competitive harm is evidence of substantial injury. Evidence that harm might result is pure speculation and is not good enough. The expectation of harm must be likely, but it need not be a certainty.

Description of possible harm, even in substantial detail, is often insufficient in itself. At a minimum, there must be a clear linkage between the disclosure of specific information and the harm alleged. We must be given an explanation of how and why the harm alleged would result from disclosure of specific information. However, if it is self-evident that as a result of disclosure of the record(s):

• harm will be done;

• how (and when) it will be done; and

• why it will be done, little explanation need be given.

What you want is a clear, logical, believable explanation of the harm that could be expected if the information is disclosed and the connection between the disclosure and the harm - i.e. the logical link.

Where inferences must be drawn, or the answers to any of these questions is not clear, then more explanation would be required. The more specific and substantiated the evidence, the stronger the case for the exemption. The more general the evidence or the less plausible (believable) the result, the more difficult it would be to be satisfied as to the linkage between disclosure of particular documents and the harm alleged - i.e. the more difficult it will be to conclude that the test has been met.

The context surrounding the disclosure of the information is also relevant. The jurisprudence has established certain specific conditions that could be taken into consideration when determining whether a reasonable expectation of harm would result from disclosure:

Use of the information: You must assume that the information would be used in assessing whether its disclosure would give rise to a reasonable expectation of harm. For example, what use would likely be made of the information by a competitor is a relevant factor to be considered. In what way, would this use likely lead to harm? For example, what use would likely be made by the requester? These are relevant factors in determining how use could lead to the specific harm.

Availability of the information: It is relevant to consider if the information sought to be kept confidential is already available from sources otherwise available to the public and whether it could be obtained by observation or independent study by a member of the public acting on their own. For example, where the information requested is already available elsewhere to the public, there may be no need for exemption under this exemption. The party (i.e. even if it's us) alleging that the information is publicly available has the burden of proof. Not only must the party prove that the withheld information is otherwise publicly available but, if it is government information, that the information was released from an official source.

Press coverage: Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure. When the same or similar information has already been disclosed and received press coverage, no additional harm could be expected from the release of the requested information. Note however that a third party cannot claim that the media would misinterpret the requested information and would cause prejudice to the third party. This argument has been found purely speculative.

Time: Evidence of the period of time between the date of the confidential record and its disclosure is relevant. In some cases, the older the record, the less likely an injury could occur.

Other relevant documents: Each document must be considered on its own merit and in the context of all the documents requested for release since the total contents of the release may have a considerable bearing on the reasonable consequences of its disclosure. On the other hand, a single record may cause harm when disclosed, but disclosure may result in no harm when disclosed in full context or with an explanation.

It is the probable consequences of disclosure which are most significant in determining whether a document or a portion thereof may be exempted under this section, not the nature of the document or the nature of the information contained in the document.

CASE LAW

In Air Abonabee v. Canada, the Court held that the test is whether, assuming use of the information, its disclosure would give rise to a reasonable expectation of probable harm.

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 at 216 (F.C.T.D.) MacKay J. The department notified Air Atonabee Limited which carried on business under the firm name and style of City Express, providing an airline service between various points in southern Ontario, that the request for records included records which originated from the company. The applicant submitted that the information proposed to be released consisting of matters arising in the inspection process which involves not mere supervision and enforcement but service and a sharing of information in a regime where both parties have different but shared responsibilities for overall safety in operations, was likely to be misunderstood by the general public for it is highly technical in nature and it is incomplete for it is only selected parts of an ongoing process of communications, a dialogue, between the parties. Concerning the disclosure of certain matters such as comment about personnel matters, references to identified particular aircraft, to particular processes involving other third parties in the applicant's operations or other identified information that may be used by competitors to the disadvantage and harm of the applicant, and general opinions of department staff with possible legal implications which opinions were not acted upon by the department and were not previously brought to the attention of the applicant, the Court held that the disclosure of these types of information, identified as of particular concern to the applicant, were to be exempt from disclosure because disclosure, in the terms of subsection 20(1)(c), could reasonably be expected to result in material financial loss or to prejudice the competitive position of the applicant in this case.

In Merck Frosst, the burden of proof is on the party resisting disclosure:

Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1988), 20 F.T.R. 73 at 77-78 (F.C.T.D.) Jerome A.C.J. The requester sought records relating to the evaluation and approval of the applicant's new drug, Clinoril. The documents in issue were said to contain negative, critical and prejudicial comments concerning the drug, comments which question its safety and efficacy implying that the applicant's testing efforts are sloppy and that its approval submission was incomplete. The applicant sought to exempt these documents on the basis of claiming that their release may be reasonably expected to result in material financial loss or competitive prejudice to the applicant. Recognizing that this sort of application is to be expected in the pharmaceutical industry for two main reasons: (1) the industry is a very competitive one and each manufacturer guards his information jealously against all others; (2) the approval process for a new drug is very painstaking as it plays an important role in maintaining public health standards. The Court was, however, not satisfied that the release of all available information on a product in the form proposed by the respondents would cause any kind of harm to this applicant or would violate any confidences that come under the protection of the Act. Concluding that the applicant had presented no evidence as to the way in which this information will cause harm, no indication of the degree of harm it will cause, and no facts to support the assertions made and absent any history as to how negative publicity has affected its business in the past and no market information as to the vulnerability of the pharmaceutical industry to such negative publicity, there is really no basis on which the Court could conclude that material damage could reasonably be expected from disclosure. The Court held that the applicant had failed to discharge the evidentiary burden imposed by this paragraph. 20(1)(c).

Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 at 679-682 (T.D.) Denault J. While the law and the test to be applied is clear, the determination of just what constitutes a “reasonable expectation of probable harm” will often give rise to serious disagreement. The party resisting disclosure is required to adduce evidence of harm that could reasonably be expected to be caused by disclosure.

And, to satisfy the requirement of this exemption, there must be evidence as to the way in which the information will cause harm and the degree of harm it will cause:

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 at 316-317 (F.C.A.) Pratte, Urie and Hugessen JJ.A. The applicant invokes the provisions of paras. (c) and (d) of s. 20(1) to oppose the disclosure of the records concerning the construction of naval vessels. One of major thrusts of the appellant's argument was that the trial judge had erred in not giving sufficient weight to the appellant's evidence as to the various harms it would suffer if this material were made public and had failed to understand the competitive climate in which the appellant must operate and the realities within which it must negotiate with its subcontractors, suppliers and trade unions. The Court disagreed noting that it could see no indication that the judge had not carefully looked at and weighed all the material before him (indeed, the contrary appears to be the case). The Court refused to substitute its appreciation for the trial judge's. Noting that the trial judge's conclusion on para. 20(1) (c) was that: “The expectation of harm which has been shown by the applicant in this matter has far too large an ingredient of speculation or mere possibility to meet the standard” and that the “applicant has shown the mere possibility that disclosure of the contract might interfere with its contractual or other negotiation”, the Court concluded that while it is possible that the judge could, without error, have reached the opposite conclusion, the question was, at bottom, one of opinion and appreciation and refused to say that he was wrong.

Occam Marine Technologies Lt. v. Canada (National Research Council) (1998), 155 F.T.R 117 at 128-129 (F.C.T.D.) MacKay J. The general financial success or lack of it, of any third party has no significance in relation to the decision to refuse to disclose requested information. Whether third parties would have agreed to release the information requested if they had been asked at an earlier time is a matter of sheer speculation, and so is a forecast by failing to agree third parties risked disclosure of the information through this review process. In order to withhold information there must be reasonable expectation of probable harm to a third party. The information sought relates to those parties’ past business strategies, their financial circumstances and it may reveal future tactics for funding applications. A competitor of the third parties could rely on the information to enhance its own funding proposals, thus adversely affecting the third parties in the marketplace. Ultimately, this is a decision, based upon judgement, here on behalf of the Head of the NRC. Unless that decision can be said to be unreasonable in the circumstances, the Court should not intervene in the exercise of discretion.

AstraZeneca Canada inc. c. Health Canada, 2005 FC 1451;Concerning the reasonable expectation of harm test, adequacy of proof of expected harm must be flexible and the Court must recognize that in many circumstances a party cannot rely on harm from past disclosures as evidence of reasonably expected harm because past disclosure of that type of evidence may never have occurred. The tribunals usually recognize evidence of a previsional nature such as evidence of past documents of information, expert evidence, evidence of treatment of similar evidence or similar situations is frequently accepted as a logical basis for the expectation of harm and as evidence of the class of documents being considered.

The evidence of harm must be detailed, convincing and describe a direct causation between disclosure and harm.

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 464 (T.D.), Jerome A.C.J. Evidence of harm under subsections 20(1)(c) and (d) must be detailed, convincing and describe a direct causation between disclosure and harm. It must not merely provide grounds for speculation as to possible harm.

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 468 (T.D.), Jerome A.C.J. When considering subsection 20(1)(c) of the statute, however, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se. The evidence must not require pure speculation, but must at least establish a likelihood of substantial injury. This also seems to be the test incorporated in subsections 20(1)(c) and (d) of the Act and where the wording used is “could reasonably be expected to” result in harm. The expectation must be reasonable, but it need not be a certainty.

However, one must clearly distinguish between “direct causation” and “direct causality”, the former being the test to be applied under the injury exemptions and the latter being explicitely rejected by the Court of Appeal in Canada Packers.

Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), [1989] 1 F.C. 47 (F.C.A.] at 59-60 Heald,Urie and MacGuigan JJ.A. In light of the purpose of the Act as set out in section 2, the exception to access in paragraph 20(1)(c) must be interpreted as requiring a reasonable expectation of probable harm.

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 at 317(F.C.A.) Pratte, Urie, Hugessen JJ.A. The setting of the threshold at the point of probable harm flows necessarily from the context, not only of the section but of the whole statute, and is the only proper reading to give to the French text (“risquerait vraisembablement de causer des pertes”).

Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 at 678-682 (T.D.) Muldoon J. The department refused to disclose the specific amount in kilograms of the largest single annual import quota of foreign cheese allocated to a firm or individual in 1985 on the basis that the information was confidential financial or commercial information between the department and the third party exempted from disclosure under paragraph 20(1)(b) or information the disclosure of which could prejudice the third party under paragraph 20(1)(c). Applying the test laid out in Air Atonabee Ltd., the Court held the information to be confidential and exempted from disclosure under paragraph 20(1)(b). Applying the test established in Canada Packers v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.) the Court held that given the nature of the information sought, its potential uses, and the great confidence with which it has been guarded at all times, a reasonable expectation of harm existed regarding its disclosure and exempting it under paragraph 20(1)(c).

Swagger Construction Ltd. v. Canada (Minister of Public Works and Government Services) (1996), 112 F.T.R. 152 at 156 (F.C.T.D.) Pinard J. At issue were records for a construction contract between Swagger and Public Works records relating to a Land Border Facility at Huntingdon, British Columbia Project. The applicant took the position that the parties requesting the information, were doing so for the sole purpose of “attacking, by way of public forum or otherwise, the capabilities of Swagger and was actively involved in interfering with Swagger's efforts in obtaining contracts on other provincial and municipal government projects”. In light of all the evidence and given the fact that the contract had been completed, the Court held that the information in question, in its totality or in part, cannot, in and of itself, give rise to a reasonable probability of material financial loss to the applicant, or of prejudice to its competitive position or of interference with its contractual or other negotiations. The alleged misrepresentation and use of any of the information to the detriment of the applicant does not constitute more than mere possibility or speculation, which does not meet the test established by the Federal Court of Appeal in Canada Packers Inc. and St. John Shipbuilding Ltd. It is incumbent upon the applicant to demonstrate that the documents in issue were exempt from disclosure under paragraphs 20(1)(c) and (d) of the Act and the Court found that the applicant had not discharged this burden.

Direct causation requires a direct causal link – the person resisting disclosure must bring specific evidence which would show that there is a link arising from the disclosure which would result in the harm. To put it another way, there must be some logical explanation to show why disclosure could lead to a particular harm. However, the person resisting disclosure does not have to prove a “direct causality”. (i.e. that the disclosure of the requested information would, by itself, cause the specific harm). In other words, it is not necessary to prove that disclosure could result directly in producing the specific harm.

 

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 468 (T.D.), Jerome A.C.J. The principle of the Access to Information Act requires the party opposing disclosure to establish that the information in issue comes within one of the specific exemptions set out in the statute. In this case, the exemptions pleaded are subsections 20(1)(c) and (d). In order to establish a case for non-disclosure on those grounds the applicants must show that this is information the disclosure of which could reasonably be expected to: 1) result in material financial loss or gain to a third party; 2) prejudice the competitive position of a third party; or 3) interfere with the contractual or other negotiations of a third party.

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 at 488 (T.D.) Strayer J. Noting that the only evidence of a “reasonable expectation of probable harm” pursuant to paragraph 20(1)(c) was an affidavit which describes in the most general way certain consequences that “could” ensue from disclosure of the brief about the CFL, the Court held that such evidence fell far short of meeting the burden of proof.

AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189, [2005] A.C.F. no859 (F.C) (QL), confirmed by AstraZeneca Canada Inc. v. Health Canada, 2006 FCA 241, [2006] A.C.F. n. 1076 (C.A.F.) (QL): In this case, the third party has claimed exemption from disclosure of publicly available information. It does so on the basis that no one knows that it used the publicly available information nor how it used that information. As a general proposition, publicly available information is not exempt information under paragraph 20(1)c) either as a class of documents or under the "harm's" test. It requires compelling evidence to dislodge the logical conclusion that information in the public domain will be used, particularly by knowledgeable users. The evidence was at best speculative.

AstraZeneca Canada inc. c. Health Canada, 2005 FC 1451; The Court recognized that much of the informations for which the third party claimed exemption was in the public domain. The Court argued that it is always incumbent on the person resisting disclosure to establish harm, a more difficult task where the same type of information is in the public domain. The Court recognized also that the information does not have the quality of confidentiality and any harm suggested is, at best, speculative.

Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), [2001] F.C.J. No. 828 (Q.L.) 2001 FCT 556 (F.C.T.D.) O’Keefe J. I am satisfied that the evidence submitted allows for the document (unsolicited proposal) to qualify for non-disclosure under paragraph 20(1)(c) of the Act. I have reviewed the affidavit of Michael Van Aanhout and I cannot find anything but the bald assertions that the applicant would be put at a competitive disadvantage and that it would suffer incalculable damages. For example, how probable is it that the applicant would be put at a competitive disadvantage or that it would suffer incalculable damages? Paragraph 20(1)(c) speaks of “could reasonably be expected to result in material financial loss or gain to . . .” Would the incalculable damage referred to in the affidavit “reasonably be expected to result in material financial loss. . . ?” Thus, based on the evidence before me, I find that the unsolicited proposal does not qualify for non-disclosure under paragraph 20(1)(c) of the Act.

Northern Cruiser Co. v. Canada (Minister of Transport) (1991), 47 F.T.R. 192 at 194-195 (F.C.T.D.) Strayer J. The requester sought a copy of the most recent agreement whose purpose is essentially for the payment of a subsidy by the government of Canada to the Northern Cruiser as operator of a ferry, the “Northern Princess”, which carries passengers and vehicles between St. Barbe, Newfoundland and Blanc Sablon, Quebec across the Strait of Belle Isle. The department proposed to release the contract with only a few deletions pertaining to financial matters but first sought the views of the applicant herein as it was required to do by law. The applicant objected to the release of clauses 25, 26, and 27 which set out the circumstances in which, and the terms on which, the contract can be terminated by the Minister of Transport. Noting that what was in issue was a contract made for expenditure of public funds in connection with the provision of a service to the members of the public, the Court observed that this was not a case where trade secrets or confidential information of a private individual or company have come into the hands of the government, or where such information would affect negotiations between private third parties, a situation clearly requiring due care that mere contact with the government should not render the information public. It is clear that the disclosure of clauses 25, 26, and 27 will in no way affect the legal relations between the parties to the contract, namely the applicant and Her Majesty, the Minister's rights to terminate the contract, and the applicant's rights to resist such termination, exist now and they will not be any different after disclosure. Noting that pursuant to paragraph 20(1)(c) an applicant must show a “reasonable expectation of probable harm” in the release of the documents the Court was not satisfied that the applicant had met this burden of proof.

Prud’homme v. Canadian International Development Agency, [1994] 85 F.T.R. 302 at 305-306 (F.C.T.D.) Pinard J. A business specializing in aerial spraying and consultation in this field, entered into an agreement with CIDA regarding a permanent offer of consultant and professional services on aerial spraying in connection with a locust control program in Western Africa. The applicant, one of the main competitors, asked CIDA to disclose the text of the agreement. The Court held that the evidence in the record was sufficiently persuasive to conclude that the rates contained in the financial clauses and a listing of the business staff contained in the agreement were information which represents the specific expertise acquired by the business as the result of significant investments of time and money in a very specialized field. Similarly, the Court held that since the business had been able to obtain its certification as a consultant and supplier of services to CIDA on account of its special expertise and its specialized staff, a certification now being sought by the applicant, but not yet obtained for the very reason that it lacks expertise and specialized staff in this field, disclosure of all this information to the applicant in the circumstances would amount to giving the business' main competitor the results of the exceptional know-how possessed by the latter business in the field of aerial spraying and the related consultation. The Court concluded that in the circumstances disclosure to the applicant would involve a “reasonable expectation of probable harm” for the business under paragraph 20(1)(c).

Viandes du Breton Inc. v. Canada (Department of Agriculture and Agri-Food) . [2000] F.C.J. No. 2088, 2000 CarswellNat 3169, 2000 CarswellNat 3526 (Fed. T.D.), Nadon J. The Court noted, that as confirmed by MacKay J. in SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 (T.D.) at 127, a plaintiff should not only state in an affidavit that disclosure of the documents would probably cause it harm, it should also submit evidence of the likelihood of such harm. Consequently, it is not sufficient for the plaintiff to show a possibility of harm or to speculate as to the probability of harm which the disclosure would cause it in negotiations. As laid down by the courts, the plaintiff must clearly show that the disclosure will probably cause it harm. The Court also noted that the consequences discussed by the plaintiff appear to have been the result of speculation rather than of thorough analysis or study. The lack of discussion of the calculation method used in arriving at these figures or the source of the figures raising questions about the accuracy of these analyses, these figures, as submitted by the plaintiff, did not suffice to show that there was a probability of harm. The Court went on to note that the plaintiff had also argued that the likelihood of harm from disclosure was linked to the possibility of unjust or incorrect coverage of the content of the reports by the media. The Court opined that this fear appeared to be the real reason the plaintiff was objecting to disclosure of the inspection reports on its hog kill cut plant. In support of this argument, the plaintiff alluded to unjust press coverage which occurred in April 1998 following the disclosure of the inspection reports at another business, Aliments Flamingo. Relying on Coopérative fédérée du Québec v. Canada (Agriculture and Agri-food), [2000] F.C.J. No. 26 (Fed. T.D.) Pinard, J. the Court held that media coverage cannot be presumed to be unfair or negative noting that the plaintiff has other legal remedies if it is the victim of unfair or unfounded coverage. The fact that the plaintiff fears bad publicity after the inspection reports are disclosed does not mean that the Court should prevent their disclosure. For all the aforementioned reasons, in the opinion of the Court, the exemptions allowed by ss. 20(1)(c) and (d) of the Act cannot be applied in the case at bar, as the department's decision indicated. The plaintiff was unable to discharge its burden of establishing that the disclosure of inspection reports on its plant would create a reasonable expectation of probable harm and that the documents in question are covered by the exemptions allowed by ss. 20(1)(c) and (d) of the Act.

Canada Post Corporation v. National Capital Commission, 2002 FCT 700 (Fed. T.D.) Kelen J. This was an application for review pursuant to section 44 of the Access to Information Act of the respondent’s decision to disclose certain information concerning financial sponsorship assistance received by the National Capital Commission from Canada Post Corporation with respect to three events. The issue was whether the amount paid by Canada Post for sponsoring the events were exempt from disclosure pursuant to either paragraph 20(1)(b), or (c) or (d) of the Act. The Court was of the opinion that paragraph 21(1)(b) of the Act does not apply to the case for the reason that the negotiated amounts of the financial assistance cannot be characterized as information “supplied to a government institution by a third party” as required in paragraph 20(1)(b). The intention of Parliament in exempting financial and commercial information from disclosure applies to confidential information submitted to the government, not negotiated amounts for goods or services. Otherwise, every contract amount with the government would be exempt from disclosure, and the public would have no access to this important information. Moreover, there would be no need for Parliament to have enacted paragraphs 20(1)(c) and 20(1)(d). Accordingly, paragraph 20(1)(b) is not a ground for an order that the information not be disclosed in this case.

 

In Information Commissioner v. Immigration and Refugee Board (1997), 140 F.T.R., the Federal Court Trial Division characterized the injury test in paragraph 16(1)(c) of the Act as a ‘confident belief”:

 

Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140 (F.C.T.D.) at 151 Richard J.

The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.

Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigations.

A high standard of proof is necessary to establish an exemption from disclosure on the grounds of financial harm or contract interference. To prove harm, one must be able to trace, track, illustrate and show how disclosure of specific information could lead to the harm alleged.

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 468-469 (T.D.), Jerome A.C.J. The principle of the Access to Information Act requires the party opposing disclosure to establish that the information in issue comes within one of the specific exemptions set out in the statute. In this case, the exemptions pleaded are subsections 20(1)(c) and (d). In order to establish a case for non-disclosure on those grounds the applicants must show that this is information the disclosure of which could reasonably be expected to: 1) result in material financial loss or gain to a third party; 2) prejudice the competitive position of a third party; or 3) interfere with the contractual or other negotiations of a third party.

SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 at 127 (F.C.T.D.) MacKay J. The department received a request for records relating to the Northumberland Strait Crossing Project consisting of “a fixed link” between New Brunswick and Prince Edward Island. The applicant argued that the detailed information in the Proposal, regarding finances, construction techniques, and logistics proposed for the project if it were successful in its bid, would, if disclosed, result in material financial loss or prejudice to the applicant, and in interference with its contractual negotiations in the future. Disclosure of the record, the evaluation report, would also harm the applicant's reputation and compromise its chances of obtaining future contracts for similar work. After having examined the Record and the Proposal, the Court noted that it was not self-evident from the documents themselves that the applicant, whatever may be its concerns, had demonstrated a basis for “a reasonable expectation of probable harm”. The Court also noted that the applicant could not demonstrate probable harm as a reasonable expectation from disclosure of the Record and the Proposal simply by affirming by affidavit that disclosure “would undoubtedly result in material financial loss and prejudice” to the applicant or would “undoubtedly interfere with contractual and other negotiations of SNC-Lavalin in future business dealings”. These affirmations are the very findings the Court must make if paragraphs 20(1)(c) and (d) are to apply. Without further explanation based on evidence that establishes those outcomes are reasonably probable, the Court is left to speculate and has no basis to find the harm necessary to support application of these provisions. The Court concluded that the Record and the Proposal were not exempt from disclosure pursuant to either paragraph 20(1)(c) or paragraph 20(1)(d) of the Act.

Coopérative fédérée du Québec (c.o.b. Aliments Flamingo) v. Canada (Agriculture and Agri-Food) (2000), 5 C.P.R. (4th) 344 at 349-351(F.C.T.D.) Pinard J. Informed that the respondent intended to disclose records in accordance with subsection 27(1) of the Act in response to a request for access to information sent to the Canadian Food Inspection Agency concerning some facilities inspection reports, the applicants objected to their disclosure. Citing the complexity and vagueness of the information, and its confidential and prejudicial nature, the applicants requested the benefit of the exemptions prescribed in paragraphs 20(1)(c) and (d) of the Act. In regard to the apprehended harm, the applicants referred to media coverage. The Court held that access to information should not be prohibited solely because it might be unfavourable to the persons it concerns. This is especially true when, as it happens, the information has to do with the state of facilities as a result of things done by the applicants, who operate them. What they had to establish, in order to prevent the public disclosure of this information under paragraphs 20(1)(c) and (d) of the Act, was that the information is so unfavourable that its disclosure could give rise to a reasonable probability of material financial losses to them, or to prejudice their competitive position or interfere with contractual or other negotiations. In the circumstances, the Court cannot, of course, presume unfair treatment by the media of the particular information that Agriculture says it is prepared to disclose in this case. Whatever the case, the applicants are certainly not unaware of the right to damages that might accrue to them for any bad faith in the dissemination of the information, given the liability that such fault would entail. In the circumstances, therefore, the merit in avoiding the risk of suppression of legitimate comment outweighs the risk of wrongful comment. In this context, I find no real basis in the evidence for the applicants' straightforward statements as to the financial consequences of disclosure of information and its impact on their competitive position, or the consequences of such disclosure on future contracts. In my opinion, these are mere conjectures that fail to meet the test of “reasonable expectation of probable harm.”

Under the Act, the test is one of reasonably expected financial or competitive harm, regardless of whether the information disclosed is confidential per se. However, if the information is, in fact, confidential – this could increase the likelihood that it might be able to meet the test. The standard of proof for substantial competitive harm is evidence of substantial injury. Evidence of that harm might result in pure speculation and is not good enough. The expectation of harm must be likely, but it need not be to be a certainty.

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 468 (T.D.), Jerome A.C.J. When considering subsection 20(1)(c) of the statute, the test is one of reasonable expected financial or competitive harm, regardless of whether the information disclosed is confidential per se. The evidence must not require pure speculation, but must at least establish a likelihood of substantial injury. The expectation must be reasonable, but it need not be a certainty.

Saint Burns Meats Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 137 at 141 (F.C.T.D.) Jerome A.C.J. The requester asked for copies of the meat inspection audit reports on Canadian slaughter/meat packing plants for 1982, 1983 and 1984. Burns produced evidence of harm resulting from newspaper coverage of reports which were similar in content to the ones in issue here. The evidence is that, as a result of misleading publicity based on inspection reports, the applicant suffered a loss of a fraction of 1% of its annual sales over a period of about three months in a limited area. The cost to Burns was between $200,000 and $300,000 dollars. Noting that these companies are justly proud of the generally high standards they maintain in their plants and clearly wish to prevent negative information about them becoming available to the media, the Court held that this desire in itself will not establish an exemption under the Act. The Court held that Burns had not established a case for an exemption under ss. 20(1)(c) of the Act showing that disclosure of these reports can be reasonably expected to result in material financial loss or competitive harm.

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 at 216 (F.C.T.D.) MacKay J. After considering the remaining concerns, the Court concluded that apprehensions about general misunderstandings that might arise from disclosure, either concerning safety in its operations or about use by persons adverse in interest do not raise more than speculation about probable harm. The Court was not persuaded that disclosure raised a reasonable expectation of probable harm in the context of possible general misunderstandings within paragraph 20(1)(c).

John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) [1990], 67 D.L.R. 315 at 317 (F.C.A.) Pratte, Urie, Hugessen JJ.A. Invoking the provisions of paragraphs 20(1)(c) and (d) to oppose the disclosure of the information sought, the appellant argued that the judge had erred in not giving sufficient weight to the appellant's evidence as to the various harms it would suffer if this material were made public. The judge, we are told, has failed to understand the competitive climate in which the appellant must operate and the realities within which it must negotiate with its subcontractors, suppliers and trade unions. We can see no indication that the judge did not carefully look at and weigh all the material before him (indeed, the contrary appears to be the case), and what the appellant is really asking us to do is to substitute our appreciation for his; this we will not do. The judge's conclusion on paragraph (c) [at p. 36] was that: “The expectation of harm which has been shown by the applicant in this matter has far too large an ingredient of speculation or mere possibility to meet the standard”. While it is possible that the judge could without error have reached the opposite conclusion, the question is, at bottom, one of opinion and appreciation and we are quite unable to say that he was wrong.

Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare) (1992), 45 C.P.R. (3d) 390 at 403-404 Jerome A.C.J. The applicant argued that the product monographs for its prescription drugs Methotrexate and Minocin and severed documents relating to its New Drug Submission for Minocin were exempt from disclosure, as a trade secret, as scientific and technical information of a confidential nature, as information the disclosure of which would be prejudicial, as information. Although the applicant was able to provide dollar and percentage estimations reflecting the possible reduction in sales if brand drugs become genericized, the Court had difficulty accepting the link between the disclosure of the requested information and the copying of the drugs by generic manufacturers. Accepting that a direct causality is not required, the Court noted that there is nevertheless no “reasonable expectation of harm” since this information is already publicly available and while this information may assist a competitor, it is by no means certain that it will produce the result contemplated by the applicant. The Court held that the estimates of injury provided in this instance were simply not sufficient to establish a reasonable expectation of harm within the meaning of paragraph 20(1)(c).

Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 41 C.P.R. (3d) 176 at 186 (F.C.T.D.) Jerome A.C.J. The applicant objected to the disclosure of certain departmental records concerning a drug known as Zantac which is used in the prevention, treatment and healing of ulcers because they contain 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 Glaxo. The Court was not persuaded by the applicant's suggestion that disclosure of such information would undercut the mandatory reporting process and adversely affect a full and frank disclosure on the part of drug companies. It held that this kind of full and frank disclosure is essential in the respondent's role as guardian of public health standards and it is appropriately set out by Parliament in clear language. The product monograph and the CPS contain information concerning adverse drug reactions and drug manufacturers are required to provide information concerning any adverse reactions to HPB. The fact that the same type of inherently prejudicial information is compiled and provided by a competitor does not make the information more harmful to the applicant within the meaning of para. 20(1)(c).

The Court held that the fact that such records contain “negative information” with respect to the applicant's drug is also not sufficient to exempt the records from disclosure under paragraph 20(1)(c) of the Act.

Matol Botanique International Ltée v. Canada (Minister of Health and Welfare) (1994), 84 F.T.R. 168 at 178 (F.C.T.D.) Noël J. The applicant established the possibility that the release of negative information could have a negative impact on its firm, but the evidence was far from establishing a reasonable expectation of significant financial loss or prejudice to its competitive position. Accordingly, the Court held that the applicant had not discharged the burden of proving that the disclosure of the documents at issue would probably cause it material financial loss or affect its competitive position within the meaning of paragraph 20(1)(c) of the Act.

Bitove Corp. v. Canada (Minister of Transport) (1996), 119 F.T.R. 278 at 281 (F.C.T.D.) Pinard J. A competitor of Bitove sought the release of records relating predominantly to the negotiation of an amendment to a lease between the respondent and the applicant with respect to goods and services provided at Terminals 1 and 2 at the Lester B. Pearson International Airport. Noting that the information consists of records of meetings, including minutes of negotiating meetings, as well as detailed financial reports, including sales information and projections, the Court was satisfied that all of the information relating to Terminals 1 and 2 had been provided to the respondent in confidence and only as a result of the contractual relations between the applicant and the respondent. This information would not be and is not available to anyone other than the respondent and the applicant. The information relating to Terminal 3 is also confidential to the applicant. All of the information sought to be disclosed by a competitor of the applicant is otherwise maintained within the strictest confidence within the applicant. It is all information the nature of which would be of great assistance to the applicant's competitors to determine precisely how and where the applicant negotiated its contractual arrangements with the respondent, how it conducts its affairs at Lester B. Pearson International Airport and how it directs its sales efforts at that airport. To provide a competitor of the applicant with that information would allow a competitor a direct insight into its plans and strategies, something that has taken years of work for the applicant to determine. The Court held that in the circumstances, the applicant had successfully discharged the burden of establishing that the records requested under the Act contain the kind of information described in paragraphs 20(1)(b) and (c) of the Act.

Canada (Information Commissioner) v. Canada (Prime Minister), (1992) 1 F.C. 427 (F.C.T.D.) Rothstein. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged. The Court must be given an explanation of how and why harm would result from disclosure, little explanation needs to be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between the disclosure of particular documents and the harm alleged. In addition, allegations of harm from disclosure must be considered in light of the relevant circumstances. In particular, this includes the extent to which the same or similar information that is sought to be kept confidential is already in the public domain. While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality would, in such circumstances, be more difficult to satisfy.

Without restricting the generality of the foregoing:

The legislator intends by this terminology to expressly state that the section is not restricted in any way by the examples enunciated.

These examples do not restrict in any way the generality of the general principles found in the provision and are subject to the ejustem generis rule of interpretation. This rule is designed to assist in ascertaining the true intention of Parliament and operates in such a way that any analogy or extrapolation of the descriptive paragraph must be restricted to the specific meaning found in this paragraph. For example, if a department wants to claim paragraph 16(1)(c) in such a way that does not clearly fall within the three illustrative sub-paragraphs, it must be a situation where the disclosure of the information will clearly cause prejudice in some identified way to the conduct of an investigation or the enforcement of any law of Canada or a province - i.e., it must relate to a specific investigation or a category of investigations or a particular law.

CASE LAW

Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 at 216 (F.C.T.D.) MacKay J.

AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189, [2005] A.C.F. no859 (F.C) (QL)

AstraZeneca Canada inc. c. Health Canada, 2005 FC 1451;

Bitove Corp. v. Canada (Minister of Transport) (1996), 119 F.T.R. 278 at 281 (F.C.T.D.) Pinard J.

Canada (Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 665 at 682-683 (T.D.) Denault J

Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140 (F.C.T.D.) at 151 Richard J.

Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 at 55 (C.A.) Heald, Urie and MacGuigan JJ.A

Canada Post Corporation v. Canada (National Capital Commission), 2002 FCT 700 Kelen J

Coopérative fédérée du Québec (c.o.b. Aliments Flamingo) v. Canada (Agriculture and Agri-Food) (2000), 5 C.P.R. (4th) 344 at 349-351(F.C.T.D.) Pinard J.

Cyanamid Canada Inc. v. Canada (Minister of Health and Welfare) (1992), 45 C.P.R. (3d) 390 at 403-404 Jerome A.C.J

Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 41 C.P.R. (3d) 176 at 186 (F.C.T.D.) Jerome A.C.

Jacques Whitford Environment Ltd. v. Canada (Minister of National Defence), [2001] F.C.J. No. 828 (Q.L.) 2001 FCT 556 (F.C.T.D.) O’Keefe J.

Matol Botanique International Ltée v. Canada (Minister of Health and Welfare) (1994), 84 F.T.R. 168 at 178 (F.C.T.D.) Noël J.

Merck Frosst Canada Inc. v. Canada (Minister of Health and Welfare) (1988), 20 F.T.R. 73 at 77-78 (F.C.T.D.) Jerome A.C.J.

Northern Cruiser Co. v. Canada (Minister of Transport) (1991), 47 F.T.R. 192 at 194-195 (F.C.T.D.) Strayer J

Occam Marine Technologies Lt. v. Canada (National Research Council) (1998), 155 F.T.R 117 at 128-129 (F.C.T.D.) MacKay J

Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 at 488 (T.D.) Strayer J.

Piller Sausages & Delicatessens Ltd. v. Canada (Minister of Agriculture), [1988] 1 F.C. 446 at 468-469 (T.D.), Jerome A.C.J.

Prud’homme v. Canadian International Development Agency, [1994] 85 F.T.R. 302 at 305-306 (F.C.T.D.) Pinard J.

Saint Burns Meats Ltd. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 137 at 141 (F.C.T.D.) Jerome A.C.J.

Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 67 D.L.R. (4th) 315 at 316 (F.C.A.) Pratte, Urie, Hugessen JJ.A.

Swagger Construction Ltd. v. Canada (Minister of Public Works and Government Services) (1996), 112 F.T.R. 152 at 156 (F.C.T.D.) Pinard J.

Viandes du Breton Inc. v. Canada (Department of Agriculture and Agri-Food) . [2000] F.C.J. No. 2088, 2000 CarswellNat 3169, 2000 CarswellNat 3526 (Fed. T.D.), Nadon J.

 
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