Bombardier Inc. v. Canada (Attorney General)

Bombardier Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-02-22
Neutral citation
2019 FC 207
File numbers
T-1579-17, T-1580-17, T-1650-14, T-1750-14
Notes
A correction was made on September 17, 2019.
Decision Content
Date: 20190222
Dockets: T-1580-17
T-1650-14
T-1750-14
T-1579-17
Citation: 2019 FC 207
Ottawa, Ontario, February 22, 2019
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
BOMBARDIER INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
INFORMATION COMMISSIONER
OF CANADA
Respondent
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued February 22, 2019)
[1] Bombardier Inc. has brought applications for judicial review of four decisions made by Innovation, Science and Economic Development Canada (ISED), or its predecessor, Industry Canada, in response to two requests for information made under the Access to Information Act, R.S.C. 1985, c. A-1 (ATIA). Bombardier opposes the release of some of the requested information, asserting that, when combined with publicly available data, it would enable accurate inferences to be drawn about commercially sensitive information that could damage its competitive position. As such, Bombardier submits that the information in question is exempt from disclosure under paragraphs 20(1)(b) and 20(1)(c) of the ATIA.
[2] Bombardier submits that in determining that the information in question should be disclosed, ISED failed to correctly interpret and apply two of the mandatory exemptions provided for in the ATIA. Bombardier further denies that it had previously consented to the disclosure of the disputed information.
[3] The Attorney General of Canada and the Office of the Information Commissioner oppose Bombardier’s applications for judicial review, asserting that the public is entitled to information regarding the use of public funds to support projects, and that Bombardier has failed to demonstrate that the disputed information qualifies for exemption under the ATIA.
[4] For the reasons that follow, I have concluded that Bombardier has not demonstrated that the information in issue is exempt from disclosure under either paragraph 20(1)(b) or paragraph 20(1)(c) of the ATIA. Consequently, Bombardier’s applications for judicial review will be dismissed.
I. Background
[5] Bombardier Inc. is a global transportation company headquartered in Montreal. Bombardier Canadair is now part of Bombardier Inc., and the two entities will be referred to collectively as “Bombardier” for the purpose of these reasons.
[6] In addition to its other activities, Bombardier designs and produces civilian and commercial aircraft, including lines of aircraft known as the “C Series”, “CRJ Series” and “Q 400” aircraft. The information at issue in this application relates to the “CRJ Series” and “Q 400” aircraft.
[7] The aerospace industry is highly competitive, and in order to maintain its competitive position, Bombardier is continually engaged in researching and developing new aircraft programs, whether it be the development of entirely new models of aircraft or significant modifications being made to existing models.
[8] The Technology Partnerships Canada program (TPC) was a special operating agency within Industry Canada that provided funding support for research and development projects in Canada. Funding was provided to recipients in accordance with agreements concluded between the federal Crown and recipient companies.
[9] Bombardier received funding under the TPC program for its “CRJ Series” and “Q 400” aircraft programs. Like other TPC projects, these programs were long-term in nature, commencing with a research and development phase followed by a period in which a product or technology could generate revenue for the recipient. Once the project generated revenue, Bombardier (like other recipients of TPC funding) repaid monies that had been advanced through the TPC program, in accordance with the terms and conditions of the applicable funding agreements. The two projects at issue in this proceeding are currently in the repayment phase.
[10] The funding agreements between Bombardier and ISED contain confidentiality clauses. Although I have not been provided with all of the relevant confidentiality agreements, I understand a typical clause to provide that “[s]ubject to […] the Access to Information Act the parties will keep confidential and will not disclose the contents of this Agreement nor the transactions contemplated hereby without the consent of all parties”. The agreements also expressly identify information that Bombardier consented to release, including project numbers and identifiers, a project description and the authorized assistance being provided by ISED.
II. The Access to Information Requests
[11] An access to information request was made in 2009 (request #A-2009-00050), seeking information with respect to the “[t]otal amount of Technology Partnerships Canada funding approved, paid out to, and repaid up to April 1, 2009”. Information was sought with respect to several companies, including Bombardier. Bombardier opposed the disclosure of some of the requested information, and certain information was withheld from disclosure by ISED pursuant to paragraph 20(1)(c) of the ATIA. This led to the filing of a complaint with the Office of the Information Commissioner.
[12] In June of 2014, ISED decided that some of the information in the 2009 record did not qualify for exemption and should be disclosed. Bombardier then commenced an application for judicial review seeking an order declaring the June 2014 decision void (application T-1650-14, or the First 2014 Application). On the consent of the parties, the First 2014 Application was held in abeyance pending the completion of the Office of the Information Commissioner’s investigation into a second access request that was still ongoing.
[13] In 2017, the Information Commissioner determined that the complaint was well-founded, recommending that the disputed information be disclosed in its entirety. ISED subsequently advised Bombardier that it intended to accept the recommendations of the Information Commissioner and release the disputed information.
[14] Bombardier then brought a second application for judicial review (application T-1579-17) with respect to this decision, challenging the release of information with respect to “Total Net Expenditures” and “Total Repayments” for Bombardier and Bombardier Canadair. As will be explained below, only the information relating to the “Total Repayments” made to ISED by Bombardier and Bombardier Canadair remains in dispute at this point.
[15] In the meantime, ISED had received a second ATIA request in 2011 (request #A-2011-00182 or the 2011 request), which sought information with respect to certain specified TPC projects as of August 26, 2011. In particular, information was sought with respect to “each investment, repayable contribution and loans approved under the Technology Partnerships Canada, to May 31, 2002”. Amongst other things, project-related information was sought with respect to repayable contributions and loans, the names of companies in question, total funding approved, total amounts of eligible costs, amounts paid out to date, and amounts repaid by royalty, recoveries or the exercise of warrants.
[16] Bombardier was advised of the 2011 request in June of 2014. It then provided written representations opposing the release of the requested information. In July of 2014, ISED decided that some of the requested information qualified for exemption, but that other information could not be withheld from disclosure under the ATIA. Bombardier then commenced an application for judicial review with respect to this decision (application T-1750-14, or the Second 2014 Application). The Second 2014 Application was also held in abeyance pending the completion of the Office of the Information Commissioner’s investigation into the 2011 request.
[17] The Information Commissioner subsequently determined that the complaint with respect to the 2011 request was well-founded, recommending that all of the requested information be disclosed. By letter dated September 29, 2017, ISED advised Bombardier that it intended to accept the Information Commissioner’s recommendation and disclose the requested record in its entirety. Bombardier then commenced an application for judicial review (application T-1580-17) with respect to ISED’s September 29, 2017 decision.
[18] Bombardier’s four applications for judicial review were subsequently consolidated by order of Justice Noël, with T-1580-17 continuing as the lead file. The parties all agree that the applications are moot to the extent that they relate to ISED’s 2014 decisions, and, with one limited exception that will be discussed further on in these reasons, the entire focus of the parties’ submissions was on ISED’s two decisions from 2017.
III. The Disputed Information
[19] The information at issue in this case is contained in spreadsheets compiled by ISED.
[20] It turns out that certain of the information sought through the 2009 request that Bombardier had originally sought to protect had in fact previously been made public, specifically information with respect to “Total Net Expenditure” and “Net Expenditures to Date” for Bombardier and Bombardier Canadair TPC projects to April 1, 2009. Consequently Bombardier no longer seeks to protect this information. Bombardier is also no longer objecting to the release of previously undisclosed project-related information regarding monies “Repaid via Warrants Exercised” by Bombardier Inc. and Bombardier Canadair to May 31, 2002.
[21] Eight entries in the spreadsheets remain in dispute. These include two entries covered by the 2009 request with respect to “Total Repayments” of TPC funding for Bombardier Inc. and Bombardier Canadair. There is also a second group of six entries relating to the 2011 request, including entries for “Total Eligible Costs” for Bombardier Inc. and Bombardier Canadair, as well as amounts “Repaid via Royalties” and “Recoveries”. While this information is publicly available in aggregate form, what is not publicly available is a break-down of the information by project.
[22] Bombardier asserts that this information is exempt from disclosure pursuant to paragraphs 20(1)(b) and 20(1)(c) of the ATIA, and that in concluding that the information should be disclosed, ISED erred by failing to correctly interpret and apply these mandatory exemptions.
IV. The Legislative Regime
[23] Paragraph 20(1)(b) of the ATIA provides that “… the head of a government institution shall refuse to disclose any record requested under this Act that contains … financial … information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party”.
[24] Paragraph 20(1)(c) of the ATIA requires that heads of government institutions refuse to disclose any record that contains “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, a third party …”.
[25] The full text of the statutory provisions at issue in this proceeding is attached as an appendix to these reasons.
[26] Both of these provisions create mandatory exemptions. That is, once the information sought has been shown to fall within the exemption in question, the head of the government institution has no discretion and must refuse to disclose it, subject only to any applicable statutory override: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 98, [2012] 1 S.C.R. 23.
[27] Also at issue in this proceeding is subsection 20(5) of the ATIA. This provides that the head of a government institution may disclose any record that contains information that falls within the exemptions identified in subsection 20(1) of the Act “with the consent of the third party to whom the information relates”. There is a factual dispute between the parties as to whether Bombardier has previously consented to the disclosure of the disputed information.
V. The Apprehended Harm
[28] As part of the highly competitive environment in the aerospace industry, aircraft manufacturers make frequent use of “benchmarking”, which involves the ongoing gathering of commercial and strategic intelligence with respect to competitors. According to the evidence of Fiona Kerr, a Senior Advisor, Risk and Asset Management in Bombardier’s Commercial Aircraft Division, competitors are particularly interested in uncovering information with respect to the costs faced by their rivals. They are also interested in information as to how their competitors position themselves in the market, and how far their development programs have advanced.
[29] Ms. Kerr further asserts that if the disputed information in this case was made public, it would provide Bombardier’s international competitors with valuable insight into its operations that would be otherwise unavailable to them. This would be particularly unfair, Bombardier says, as |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[30] Amongst others involved in the commercial aircraft sector, Bombardier competes with Boeing Company, Airbus and Embraer S.A., at least two of which are much larger companies. According to Ms. Kerr, these companies would likely be interested in the information that Bombardier is seeking to keep confidential. Embraer S.A., in particular, would be especially interested in information relating to Bombardier’s “CRJ Series” aircraft, as it directly competes with an aircraft manufactured by Embraer S.A., and information with respect to Bombardier’s “Q 400” aircraft, as Embraer S.A. had recently announced its intention to examine re-entry into the turboprop aircraft market.
[31] In addition to undermining its competitive position, Bombardier states that its competitors would be able to use the disputed information in trade disputes. These include major disputes in which Bombardier is currently engaged with Boeing in the United States involving the “C Series” aircraft, as well as a complaint against Bombardier brought by Brazil before the World Trade Organization. While acknowledging that Bombardier’s C Series aircraft had not actually received any funding through the TPC program, Ms. Kerr nevertheless asserts that Bombardier’s competitors would likely mischaracterize the disputed information to bolster their positions in these trade disputes.
[32] Finally, Bombardier says that its competitors would be able to combine the disputed information with publicly available information in order to obtain an approximation of the |||||||||||||||||||||||||||||||||||||||||||||||||||||||| Once competitors have a |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||| Bombardier says that they would be able to combine this with other publicly available information to obtain |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Access to this information would allow Bombardier’s competitors to undercut Bombardier by pricing their products just below those of Bombardier.
VI. The Standard of Review
[33] Pursuant to 51 of the ATIA, judges sitting in review of decisions such as those in issue in this case must determine whether the head of the relevant government institution was required to refuse to disclose a record in accordance with the provisions of the ATIA. If it is determined that this was in fact the case, the judge must order the institution head not to disclose the record in question.
[34] I agree with the parties that the standard of review to be applied in reviewing decisions with respect to the application of mandatory exemptions under the ATIA is that of correctness. That is, my role is to determine whether the statutory exemptions have been applied correctly to the contested records: Merck, above at para. 53.
VII. Analysis
[35] The ATIA provides a right of timely access to information in records under the control of government institutions, and has been held to enshrine a quasi-constitutional right of access for the purpose of facilitating democracy: Statham v. Canadian Broadcasting Corporation, 2010 FCA 315 at para. 1, [2012] 2 F.C.R. 421; Merck, above at para. 1; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 61, [1997] S.C.J. No. 63, per La Forest J. (dissenting, but not on this point).
[36] The ATIA facilitates democracy “by helping to ensure that citizens have the information required to participate meaningfully in the democratic process”, and by assisting in holding politicians and officials to account: Merck, above at para. 22. As a consequence, access to information legislation is to be given a broad and purposive interpretation.
[37] The Courts have, however, also recognized that other public and private interests may be engaged when access is sought to government information. Governments collect information from third parties that can include confidential commercial information that may be valuable to competitors, the disclosure of which may cause financial or other forms of harm to these third parties and discourage research and innovation: Merck, above at para. 2.
[38] As a consequence, a careful balance must be struck between the competing interests of providing the public with access to government information and protecting the interests of third parties: Merck, above at paras. 2 and 4. The question for determination is whether that balance has been properly struck in this case.
A. The Burden and Standard of Proof on a Third Party Claiming a Section 20(1) Exemption
[39] Insofar as the burden of proof is concerned, I understand the parties to agree that Bombardier bears the burden of showing why the disputed information should not be disclosed: Merck, above at para. 92.
[40] As to the standard of proof, the party resisting disclosure must establish on the civil standard of the balance of probabilities that the relevant statutory exemption applies. However, the evidence that will be required to reach that standard will depend on the nature of the proposition that the third party seeks to establish and the particular context of the case: Merck, above at paras. 94-95.
[41] The exemptions contained in subsection 20(1) of the ATIA relate to third party confidential commercial information, and are mandatory in nature. Therefore, once the record in issue is found to come within the exemption claimed, disclosure must be refused (subject to the public interest override contained in subsection 20(6) of the Act which is not in issue in this case): Merck, above at para. 98. The head of the government institution may also release the disputed information with the consent of the third party to whom the information relates: subsection 20(5) of the ATIA.
B. Is the Disputed Information Exempt from Disclosure Pursuant to Paragraph 20(1)(b) of the ATIA?
[42] The confidential information exemption established under paragraph 20(1)(b) of the ATIA is a class-based exemption. That is, once it has been shown that the disputed information contained in the record in question corresponds to the statutory provision, the information is exempted and, as noted above, the head of the government institution must refuse to disclose it: Merck, above at para. 99.
[43] The parties agree that test to be used in determining whether information is exempt from disclosure under paragraph 20(1)(b) of the ATIA is that established by Justice MacKay in Air Atonabee Ltd. v. Minister of Transport (1989), 27 C.P.R. (3d) 180 at paragraph 34, 27 F.T.R. 194, and approved by the Supreme Court of Canada in Merck, above at para. 133. That is, the party resisting disclosure must establish that the information in issue:
(a) is financial, commercial, scientific or technical in nature;
(b) is confidential information;
(c) that was supplied to a government institution by a third party; and
(d) has been treated consistently in a confidential manner by the third party.
[44] This test is conjunctive, meaning that Bombardier must satisfy all four elements of the test in order to establish that the information in question is exempt from disclosure: Air Atonabee, above at para. 34.
[45] While the parties agree that the disputed information is financial in nature, they disagree as to whether the other three elements of the test have been satisfied by Bombardier. Consequently it is necessary to consider each of the three remaining elements of the Air Atonabee test.
(1) Is the Disputed Information “Confidential Information”?
[46] In Air Atonabee, this Court held that in order to construe the term “confidential information” in paragraph 20(1)(b) of the ATIA in a manner that is consistent with the purposes of the Act, regard must be had to the content of the information, its purposes and the circumstances under which it was compiled and communicated: above, at para. 34.
[47] In particular, the Court must consider:
a) whether the content of the record is such that the information it contains is not available from sources otherwise accessible by the public, or could not be obtained by observation or independent study by a member of the public acting on his or her own;
b) whether the information originated and was communicated in a reasonable expectation of confidence that it would not be disclosed; and
c) whether the information was communicated (whether required by law or supplied gratuitously) 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, and which relationship will be fostered for public benefit by confidential communication: Air Atonabee, above at paras. 43-45.
(2) Is the Disputed Information Already Available from Sources Otherwise Accessible to the Public?
[48] It appears that some of the disputed information may already be available to the public. While Bombardier takes issue with this finding, the Office of the Information Commissioner found that the disaggregated figure for “Recoveries” for both Bombardier Inc. and Bombardier Canadair could be derived from publicly available information, specifically by subtracting these companies’ “Net Expenditures to Date” from their “Authorized Assistance”.
[49] I am prepared to assume that the disputed information is not currently available from sources that are otherwise accessible to the public, or could not be obtained by observation or independent study by a member of the public acting on his or her own. While the disputed information is available to the public in aggregate form, I will accept for the purpose of these reasons that it is not currently available in a manner that is specifically attributable to a particular aircraft project. It is this breakdown by project that Bombardier asserts is commercially sensitive information.
(3) Was the Disputed Information Communicated to ISED by Bombardier with a Reasonable Expectation that it would not be Disclosed to the Public?
[50] I am not, however, persuaded that the information in issue was communicated to ISED by Bombardier with a reasonable expectation that it would not be disclosed.
[51] In coming to this conclusion, I would start by observing that the jurisprudence has held that parties seeking government contracts “cannot expect the same degree of confidentiality as parties who are assisting the government”: AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FC 189 at para. 76, [2005] F.C.J. No. 859, aff’d 2006 FCA 241, 353 N.R. 84.
[52] One of the entries in the 2011 record is blank, namely the entry for Bombardier Canadair under “Recoveries” to May 31, 2002. The record thus does not contain any information, whether provided by Bombardier or otherwise.
[53] In addition, as previously noted, the funding agreements between Bombardier and ISED contain a confidentiality clause that expressly provides that while the parties would keep the contents of the agreements and the transactions contemplated thereby confidential, the agreements were nevertheless subject to the provisions of the ATIA. While Bombardier may have been reasonably entitled to assume that commercially sensitive information provided to ISED would be kept confidential, it was nevertheless on notice that the agreements were subject to the ATIA.
[54] Furthermore, the confidentiality clause in a November 1999 amendment to the funding agreement involving Bombardier Inc. gave the Minister discretion to disclose any of the contents of the agreement or the transactions contemplated by it in a variety of circumstances involving trade disputes. There is a similar provision in a 2008 Settlement Agreement between ISED and Bombardier Canadair which superseded its earlier agreement with Technologies Partnerships Canada. As a consequence, Bombardier was on notice that the disputed information could potentially be disclosed in certain circumstances.
[55] More importantly, Bombardier had previously consented to the disclosure of information with respect to “actual repayments made to date, pursuant to the agreement”. Having done so, Bombardier could have no reasonable expectation from that point that six of the entries - those relating to “Total Repayments”, monies “Repaid via Royalties” and “Recoveries” for each of Bombardier Inc. and Bombardier Canadair - would be kept confidential.
[56] That is, on June 2 and June 3, 2008, Mairead Lavery (who was then Bombardier’s Vice-President of Strategy & Business Development) executed two forms, each of which was entitled “Permission to Release Information”. These forms, which relate to the release of information in response to Parliamentary requests, list a series of options that could be selected electronically by the person completing the form.
[57] These options range from a blanket refusal to permit the release of any information in response to Parliamentary requests to unqualified permission to release all of the information identified in the form in response to Parliamentary requests. The forms also offer the option of permission being granted for the release of only certain specified types of information.
[58] Ms. Lavery selected the option on both forms permitting the disclosure of information with respect to “actual repayments made to date, pursuant to the agreement”. Information relating to “actual repayments made to date, pursuant to the agreement” corresponds to the “Total Repayments” entries in the 2009 record and the “Repaid via Royalties” and “Recoveries” entries in the 2011 record.
[59] The first form completed by Ms. Lavery names the proponent as Bombardier Inc., and identifies the project number, contribution date, and project title. The second form names the proponent as Bombardier Canadair, and contains the same identifying information. Each form thus relates to a specific agreement between ISED and the entity in question, with the result that the forms clearly contemplate the release of information broken down by entity and project.
[60] Bombardier suggests that Ms. Lavery must have thought that the repayment information would only be disclosed in aggregate form. There is clearly no merit to this submission. Not only is it unsupported by any evidence, there would have been no reason to have separate forms for two different Bombardier entities, each relating to a specified project, if the intent was to only disclose aggregate information.
[61] Bombardier also submits that at most, the consent forms contemplate permission being granted on a one-time basis for the disclosure of information to a particular point in time. I do not accept this submission.
[62] The sub-option selected by Ms. Lavery is one of several alternative options listed below the first option. This first option states “I give ITO permission to release ALL of the information listed below in response to Parliamentary requests, without the need to contact me each time”.
[63] Below the first option, there are a series of several other options where permission is granted to release only specified types of information, one of which contemplates the release of information relating to “actual repayments made to date, pursuant to the agreement”. As noted, this was the option selected by Ms. Lavery.
[64] It is clear that this (and the other options listed below the first option) only qualify the first phrase in the first option, namely the extent of the information that may be released. If this were not the case, the forms would make no sense.
[65] Indeed, I do not understand Bombardier to dispute that the permission granted by Ms. Lavery contemplated the disclosure of repayment information “in response to Parliamentary requests”, a phrase that appears only in the first option. In the same vein, the sub-options contemplate permission being granted for the disclosure of specified types of information “without the need to contact [the person granting permission] each time”.
[66] The use of the phrase “without the need to contact me each time” in the permission form clearly contemplates future requests for information being made that would be subject to the permission previously granted.
[67] Bombardier concedes that while the intent of the forms “would probably be obvious” to someone with legal training, a lay person may have been confused by the wording of the documents. While I am of the view that the intent of the documents is quite clear, I would also note that we have no information as to Ms. Lavery’s background, and, in particular, no information as to whether she had any legal training. As a result, that there is no evidentiary support for Bombardier’s argument. It is also reasonable to assume that as the Vice-President of Strategy & Business Development of a large company such as Bombardier, Ms. Lavery was likely a sophisticated individual who would have understood what she was doing.
[68] Bombardier also contends that the permission documents that were provided to the Office of the Information Commissioner by ISED during the course of its investigation “have not been authenticated” and should therefore be given little weight. Bombardier is not, however, disputing the admissibility of the documents, nor is it suggesting that the documents could not be located in its own files or that they may have been altered in any way.
[69] If there was a real concern as to the authenticity of the permission forms, one would have anticipated receiving an affidavit from Ms. Lavery denying that she had completed the documents. Bombardier has not, however, provided an affidavit from Ms. Lavery, and it has not provided a reasonable explanation for its failure to do so.
[70] Ms. Kerr simply states in her Reply affidavit that “Mairead Lavery is no longer employed by Bombardier, and I was unable to discuss these documents with her”. There is no suggestion that any efforts were actually made to locate Ms. Lavery or to speak to her, and Ms. Kerr has provided no explanation as to why she was unable to discuss the permission documents with her.
[71] Bombardier suggests that Ms. Lavery may not have known that information provided in response to Parliamentary requests would be contained in a public record. It further submits that Ms. Lavery may have misunderstood what she was agreeing to. Bombardier has, however, once again failed to provide any evidence to support these contentions.
[72] While this finding is sufficient to dispose of Bombardier’s arguments with respect to the issue of the permission forms, I would also note that even if Ms. Lavery had misunderstood the import of the forms, as was suggested by Bombardier, this would not be sufficient to find a lack of consent on the part of the company. As the Federal Court of Appeal has observed, in considering the import of documents such as those in issue here, the focus should be on the wording of the clause in question, rather than on an individual’s subjective understanding of its scope: Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135 at para. 66, 414 D.L.R. (4th) 165.
[73] Bombardier further submits that there is no evidence that consideration was provided by ISED in exchange for the consents provided by Ms. Lavery, with the result that the forms are therefore unenforceable. I do not accept this submission. The consent forms did not amount to an amendment to an existing contract for which consideration may have been required, but instead simply refer to specific agreements involving Bombardier and Bombardier Canadair.
[74] In light of the consent provided by Ms. Lavery, Bombardier could not have had a reasonable expectation after June of 2008 that information contained in the “Total Repayments” entries in the 2009 record and the “Repaid via Royalties” and “Recoveries” entries in the 2011 record would not be disclosed: Calian, above at paras. 52-53; StenoTran Services v. Canada (Minister of Public Works and Government Services), [2000] 186 F.T.R. 134 at paras. 12-15, [2000] F.C.J. No. 747.
[75] As a result, this information was not “confidential information” within the meaning of the Air Atonabee test.
(4) Conclusion Regarding the Paragraph 20(1)(b) Exemption
[76] As was noted earlier, the Air Atonabee test is conjunctive. Having failed to establish that the disputed information was communicated to ISED by Bombardier with a reasonable expectation that it would not be disclosed to the public, it follows that the information in question was not “confidential information” within the meaning of the Air Atonabee test. It follows that it is not exempt from disclosure under paragraph 20(1)(b) of the ATIA.
[77] In light of my finding on this point, it is not necessary to consider the third component of the second element of the Air Atonabee test: that is, whether the disputed information was communicated in a relationship between government and the party supplying it that was either a fiduciary relationship or one that is not contrary to the public interest, which relationship would be fostered for public benefit by confidential communication.
[78] It is also unnecessary to address the third element of the Air Atonabee test: that is, whether the disputed information was “supplied” to ISED by Bombardier.
[79] I will, however, briefly address the fourth element of the Air Atonabee test: that is, whether the disputed information has been treated consistently in a confidential manner by Bombardier. My finding with respect to the consents provided by Ms. Lavery leads to the conclusion that to the extent that the disputed information relates to “Total Repayments”, monies “Repaid via Royalties” and “Recoveries”, it had not been consistently treated in a confidential manner by Bombardier. As a consequence, Bombardier has also failed to satisfy the fourth element of the Air Atonabee test with respect to this information.
[80] This then takes us to the second exemption claimed by Bombardier – that is, its assertion that the disputed information is exempt from disclosure under paragraph 20(1)(c) of the ATIA.
C. Is the Disputed Information Exempt from Disclosure Pursuant to Paragraph 20(1)(c) of the ATIA?
[81] As noted earlier, paragraph 20(1)(c) of the ATIA exempts information from disclosure that could reasonably be expected to result in material financial loss or gain to or prejudice the competitive position of a third party. The list of types of harm identified in paragraph 20(1)(c) is disjunctive. As a consequence, it is not necessary for Bombardier to show that the “prejudice” to its competitive position will also result in “harm”: Merck, above at para. 212. It will be sufficient if Bombardier can show that disclosure of the disputed information could reasonably be expected to cause it either financial loss or gain, or prejudice its competitive position.
[82] Like the paragraph 20(1)(b) exemption, the paragraph 20(1)(c) exemption is mandatory in nature and the head of the government institution must refuse to disclose the records in issue once it is established that they fall within the exemption.
[83] Unlike the paragraph 20(1)(b) exemption, however, the paragraph 20(1)(c) exemption is not class-based. It is, rather, a harm-based exemption, and applies only if the disclosure of the disputed information could reasonably be expected to result in any of the forms of harm identified in the provision: Merck, above at paras. 99 and 184.
[84] In order to establish that information is exempt from disclosure under paragraph 20(1)(c) of the ATIA, a party resisting disclosure must demonstrate “a reasonable expectation of probable harm”: Merck, above at paras. 192-195.
[85] The Supreme Court has held that “a reasonable expectation of probable harm” is “something that is at least foreseen and perhaps likely to occur, but not necessarily probable”. While a party resisting disclosure “need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed”, it must nevertheless “do more than show that such harm is simply possible”: all quotes from Merck, above at para. 196. Indeed, something “well beyond” or “considerably above” a mere possibility of harm must be shown: Merck, above at paras. 197 and 199.
[86] A party cannot simply rely on a subjective belief that harm will result if certain information is disclosed: AstraZeneca Canada Inc., above at para. 46. The requirements of paragraph 20(1)(c) may, in principle, be satisfied where it can be shown that the disclosure of information not previously made public could give competitors “a head start in developing competing products, or give them a competitive advantage in future transactions”: Merck, above at paras. 219 and 220. The information must, however, be examined in its entirety in order to determine the likely impact of its disclosure: Merck, above at para. 219.
[87] Insofar as the causal link between disclosure and harm is concerned, a party resisting disclosure must provide proof of a “clear and direct connection between the disclosure of specific information and the injury that is alleged”: Merck, above at para. 197, citing Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 at para. 58, [2002] 2 S.C.R. 773; Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47, at pp. 58-59, [1988] F.C.J. No. 615.
[88] With this understanding of the relevant legal principles, I turn next to consider the evidence adduced by Bombardier with respect to the issue of harm.
[89] Bombardier asserts that it will suffer two forms of harm if the disputed information is disclosed. The first is probable financial harm and prejudice to its competitive position as a result of the competitive advantage that will be gained by its competitors. The second form of harm asserted by Bombardier is the exacerbation of trade disputes.
(1) Will the Release of the Disputed Information Cause Bombardier Financial Harm or Damage its Competitive Position?
[90] Bombardier asserts that its competitors would likely use the disputed information to determine its funding sources for specific projects and time periods, as well as expenditures and repayments relating to specific projects at specific times. This would enable Bombardier’s competitors to obtain a ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[91] Ms. Kerr states that information in the 2011 record relating to Bombardier’s “CRJ700” aircraft would be of particular interest to Embraer, as that aircraft competes directly wit