Concord Premium Meats Ltd. v. Canada (Food Inspection Agency)

Concord Premium Meats Ltd. v. Canada (Food Inspection Agency)
Court (s) Database
Federal Court Decisions
Date
2021-01-22
Neutral citation
2020 FC 1166
File numbers
T-1834-17
Decision Content
Date: 20210122
Docket: T-1834-17
Citation: 2020 FC 1166
Ottawa, Ontario, January 22, 2021
PRESENT: Mr. Justice Pentney
BETWEEN:
CONCORD PREMIUM MEATS LTD.
Applicant
and
CANADIAN FOOD INSPECTION AGENCY AND THE ATTORNEY GENERAL OF CANADA
Respondents
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued December 18, 2020)
[1] Concord Premium Meats Ltd. (Concord) applies under section 44 of the Access to Information Act, RSC 1985, c A-1 [Act] for judicial review of the decision by the Canadian Food Inspection Agency (CFIA) to release certain records. The records relate to a study done of the contents of sausages sold by various companies in Canadian stores, and the CFIA’s follow-up on the results.
[2] Concord argues that the information should be protected because it is confidential commercial or technical information supplied by Concord to the CFIA, and that the disclosure of these records could reasonably be expected to cause Concord material losses and interfere with its negotiations with grocery stores that carry its products. Concord says that the Act specifically provides for the protection of this sort of information, and that the records relating to it satisfy the legal requirements.
[3] Concord’s fear of harm arises because an article published about the study made certain allegations that it says were unfounded, which in turn resulted in negative press reporting. This negative coverage was repeated when an update to the first study was published. Concord has not been connected with the results of this study yet, but the CFIA proposes to disclose documents that would make that link. Concord submits that releasing these records will inevitably lead to negative reporting, thereby causing it material harm.
[4] The CFIA argues that much of the information that Concord is complaining about is either already in the public domain or should be disclosed because Concord’s evidence does not meet the stringent threshold for non-disclosure established by the case law. It says that this Court has never prevented disclosure of regulatory inspection reports, including prior cases involving food inspections conducted by the CFIA.
[5] Subsequent to the hearing, the CFIA accepted to redact further information based on information provided by Concord. It also proposed to include an explanatory note with the documents in order to address certain other concerns expressed by Concord.
[6] The CFIA argues that Concord has not established that its commercial interests are likely to be harmed, and therefore the public interest in disclosure should prevail.
[7] For the following reasons I am dismissing this application.
I. Background
[8] In January and February 2016, samplers hired by CFIA collected a total of 100 sausages from various retail stores in Montreal, Toronto, and Calgary. They only collected sausages labeled as containing a single ingredient: pork, beef, chicken, or turkey. The purpose of the study was to examine whether a particular testing methodology could accurately determine the contents of the sausages and, in particular, whether any other meat products were included beyond what was stated on the label.
[9] The abstract of an article that was later published in the Food Control journal (Amanda M Naaum et al, “Complementary molecular methods detect undeclared species in sausage products at retail markets in Canada” (2018) 84 Food Control 339, Applicant’s Record at 237) summarizes the background and main results of this study:
Accurate food labelling is of utmost importance for food safety and consumer choice in the food chain. Complete or partial substitution, whether intentional or unintentional, may introduce food pathogens or allergens to a product or affect personal or religious beliefs. Several studies around the world have reported different degrees of species substitution in meat products but no similar studies have been conducted in the Canadian market for sausage products.… All samples contained the predominant species matching the label species except for five turkey sausages which contained chicken as the predominant species. Second, this analysis showed that 6% of beef sausages also contained pork, 20% of chicken sausages contained turkey while 5% contained beef, and 5% of pork sausages also contained beef.… The overall mislabeling rate detected in this study was 20% and the results provide a baseline for assessing species mislabeling in processed meat products in Canada.
[10] The authors explain that “the increased and improved testing for horse in meat products throughout Europe has brought light to, and helped mitigate, one of the largest food scandals in recent history” (Confidential Certified Tribunal Record (CCTR) at 237). The authors note that horse meat was detected in one sample of pork sausage among the 100 sausages sampled in the study. It was subsequently revealed that the CFIA was not able to follow up on the horse meat issue, because the company that produced it had voluntarily ceased operations. It should be noted here that Concord had absolutely no association with the horse meat contamination, and none of the records suggest otherwise.
[11] The publication of this article on July 31, 2017, generated some media coverage, which will be described in more detail below. A few days later, on August 4, 2017, the CFIA received the following access to information request under the Act:
I am seeking records relating to a study commissioned by the CFIA and performed by Assistant Professor Robert Hanner of the University of Guelph about the speciation of sausages. I am requesting the identities on [sic] of the companies who manufactured the 100 sausages, the sausages [sic] brand names, which retail locations they were bought from and CFIA investigation records related to the 20 sausages that contained undeclared meat, including but not limited to the company that voluntarily shut down that had made a pork sausage that included horse meat. I would like the records in electronic form.
[12] The CFIA searched its files and identified 177 pages of records relating to Concord arising from this request (it also identified records relating to other producers, but these are not before the Court). On October 13, 2017, the CFIA sent a letter to notify Concord of the request and to seek its input on the preliminary decision to disclose the records. Unfortunately, it appears that this letter was misplaced within the company; in any event, no response was provided.
[13] On November 3, 2017, the CFIA sent a letter to Concord indicating that it was going to disclose the records to the requester since no reply had been received to its earlier correspondence, and noting that Concord could apply to this Court for judicial review within 20 days of the notice. Upon receipt of this letter, the Chief Executive Officer of Concord immediately contacted the CFIA Access to Information officer to explain that he had not seen the earlier correspondence, and the parties agreed that Concord would have a further period to provide its response.
[14] Concord retained legal counsel and provided its response on November 24, 2017, setting out the basis for its concerns about disclosure of some of the records and proposing further redactions to protect certain commercially sensitive information, as well as personal information relating to Concord employees.
[15] On November 27, 2017, the CFIA made its final decision regarding disclosure, accepting some of Concord’s proposed redactions. It agreed not to disclose: personal information about Concord employees; the names and contact information of suppliers and clients; internal company documents; references to testing done by Concord at specific establishments; and the amount of meat product received in relation to the amount of meat product traced through the production cycle.
[16] On November 29, 2017, Concord filed its application for judicial review of this decision. Originally, Concord also sought interlocutory relief because the CFIA had taken the position that it was going to disclose the records on December 2, 2017. This was resolved prior to the hearing of that request and the CFIA agreed not to make any disclosure until the application for judicial review was determined.
[17] Subsequent to the hearing, it was confirmed that certain records are no longer in dispute. At the hearing, Concord had expressed concerns regarding some inconsistencies in the CFIA’s redactions relating to customer information and certain references to Concord’s Hazard Analysis Critical Control Point (HACCP) system, a highly confidential internal document that is essentially Concord’s blueprint for plant safety. Following the hearing, the CFIA accepted that these records would not be disclosed.
[18] In addition, following the hearing the CFIA undertook that it would include an explanatory note seeking to explain and clarify aspects of the records in order to mitigate certain of the harms feared by Concord. This will be explained in greater detail below.
[19] A final procedural point – on November 2, 2018, Justice Richard Southcott issued a Protective and Confidentiality Order pursuant to Rules 151 and 152 of the Federal Courts Rules, SOR/98-106, and subsection 47(1) of the Act, to preserve the confidentiality of information in documents filed in these proceedings. This Order was extended at the hearing to protect that information pending the issuance of this decision.
[20] In view of the nature of the case, and the Confidentiality Order, confidential reasons were released to the parties and they were given an opportunity to propose redactions for consideration by the Court. The public version of these reasons reflect the Court’s consideration of that input, consistent with the open courts principle.
II. Issues
[21] Although the parties express them somewhat differently, there is general agreement that this case raises the following issues:
What is the appropriate standard of review?
Are the records exempt from disclosure pursuant to any of the provisions of subsection 20(1) of the Act?
III. Legislative Framework
[22] It will be helpful to set out the key elements of the legislative framework before entering into an analysis of the issues.
[23] The starting point is section 2 of the Act, the purpose clause:
Purpose of Act
Objet de la loi
2 (1) The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.
2 (1) La présente loi a pour objet d’accroître la responsabilité et la transparence des institutions de l’État afin de favoriser une société ouverte et démocratique et de permettre le débat public sur la conduite de ces institutions.
Specific purposes of Parts 1 and 2
Objets spécifiques : parties 1 et 2
(2) In furtherance of that purpose,
(2) À cet égard :
(a) Part 1 extends the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government; and
a) la partie 1 élargit l’accès aux documents de l’administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif;
(b) Part 2 sets out requirements for the proactive publication of information.
b) la partie 2 fixe des exigences visant la publication proactive de renseignements.
Complementary procedures
Étoffement des modalités d’accès
(3) This Act is also intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
(3) En outre, la présente loi vise à compléter les modalités d’accès aux documents de l’administration fédérale; elle ne vise pas à restreindre l’accès aux renseignements que les institutions fédérales mettent normalement à la disposition du grand public.
[24] The Act establishes a general right of access “to any record under the control of a government institution” (subsection 4(1)) and a corresponding responsibility on a government institution to make every reasonable effort to assist the person who requested information to obtain access (subsection 4(2.1)). The legislation provides a number of limited and specific exemptions to disclosure.
[25] The exemption that is of interest in this case relates to third party information:
Third party information
Renseignements de tiers
20 (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Part that contains
20 (1) Le responsable d’une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant :
(a) trade secrets of a third party;
a) des secrets industriels de tiers;
(b) financial, commercial, scientific or technical 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;
b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers;
…
[…]
(c) 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; or
c) des renseignements dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
d) des renseignements dont la divulgation risquerait vraisemblablement d’entraver des négociations menées par un tiers en vue de contrats ou à d’autres fins.
[26] Disclosure of such information is permitted if the third party that supplied it to the government institution consents (subsection 20(5)), or if the government institution determines that revealing it is in the public interest (subsection 20(6)). Disclosure of part of the requested information may also be permitted if the exempt portions can reasonably be severed from the remaining information (section 25).
[27] Where a government institution intends to disclose a record that may contain third party information of the sort described in subsection 20(1), it must make every reasonable effort to give the third party notice of the request (section 27) and to provide that party the opportunity to make representations as to why any part of the record should not be disclosed (section 28). Upon receipt of any representations by the third party the government institution is to make a final decision regarding disclosure, inform the third party of its final decision, and advise that party of its entitlement to request a review of the decision under section 44 of the Act (section 28).
[28] Section 44 of the Act provides that a third party who is given notice by a government institution of its intention to disclose a record may “apply to the Court for a review of the matter” (subsection 44(1)). Such proceedings are to be heard and determined in a summary way (section 45), and the Court is required to take precautions to avoid disclosure of the third party’s information during its proceedings (subsection 47(1)). The Act specifies the powers of the Court in relation to such proceedings:
Order of Court not to disclose record
Ordonnance de la Cour obligeant au refus
51 Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.
51 La Cour, dans les cas où elle conclut, lors d’un recours exercé en vertu de l’article 44, que le responsable d’une institution fédérale est tenu de refuser la communication totale ou partielle d’un document, lui ordonne de refuser cette communication; elle rend une autre ordonnance si elle l’estime indiqué.
[29] Having completed this brief review of the legislative framework that governs this case, we turn to a consideration of the issues.
IV. Analysis
A. What is the appropriate standard of review?
[30] The question is whether the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] changed the prior law governing the approach to a section 44 review. It will be helpful to outline the prior law on this issue before considering the impact of Vavilov.
[31] In Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at para 53 [Merck Frosst], the Supreme Court of Canada affirmed the approach that had been long adopted by this Court in regard to the standard of review in determining whether information is exempt from disclosure under subsection 20(1) of the Act:
Under s. 51 of the Act, the judge on review is to determine whether “the head of a government institution is required to refuse to disclose a record” and, if so, the judge must order the head not to disclose it. It follows that when a third party, such as Merck in this case, requests a “review” under s. 44 of the Act by the Federal Court of a decision by a head of a government institution to disclose all or part of a record, the Federal Court judge is to determine whether the institutional head has correctly applied the exemptions to the records in issue. This review has sometimes been referred to as de novo assessment of whether the record is exempt from disclosure. The term “de novo” may not, strictly speaking, be apt; there is, however, no disagreement in the cases that the role of the judge on review in these types of cases is to determine whether the exemptions have been applied correctly to the contested records. Sections 44, 46 and 51 are the most relevant statutory provisions governing this review.
[Citations omitted.]
[32] This approach sought to give effect to Parliament’s institutional design choices reflected in the purpose and structure of the Act. The purpose clause (section 2) expresses three core principles: “that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government” (paragraph 2(2)(a)). As stated in Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 [Information Commissioner 2003] at paragraph 17:
In my opinion, this purpose is advanced by adopting a less deferential standard of review. Under the federal scheme, those responsible for answering access to information requests are agents of a government institution. This is unlike the situation under many provincial access to information statutes, where information requests are reviewed by an administrative tribunal independent from the executive. A less deferential standard of review thus advances the stated objective that decisions on the disclosure of government information be reviewed independently of government. Further, those charged with responding to requests under the federal Access Act might be inclined to interpret the exceptions to information disclosure in a liberal manner so as to favour their institution. As such, the exercise of broad powers of review would also advance the stated purpose of providing a right of access to information in records under the control of a government institution in accordance with the principle that necessary exceptions to the right of access should be limited and specific.
[33] The summary proceeding under section 44 has been described as a “hybrid” because it proceeds by way of application and involves a review of a decision that is, in some respects, similar to a traditional judicial review. However, it is also a type of de novo hearing because new evidence can be filed in the court, little or no deference is owed the government institution’s decision-maker, and the court is required to decide whether records should be disclosed in the form proposed by the government institution (Les viandes du Breton Inc v Canada (Canadian Food Inspection Agency), 2006 FC 335 at paras 30-31.
[34] In December 2019, the Vavilov decision was released by the Supreme Court of Canada, in which the majority expressly set out to “chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision” (Vavilov at para 2). The parties in this case had filed their written submissions before Vavilov was released and they were invited to make further submissions on the application of this decision to the standard of review prior to the hearing. Concord filed supplementary written submissions in response to the Court’s invitation, while the CFIA addressed the matter in oral submissions at the hearing. They both submit that Vavilov has not altered the standard of review and that correctness still applies.
[35] The CFIA pointed out that this is not, strictly speaking, identical to the usual standard of review of an administrative decision because the question before the Court is not whether the agency’s decision is correct. Rather, the Court is required to assess the records in light of the evidence and decide whether the government’s decision to disclose them should be upheld (see Air Atonabee Ltd v Canada (Minister of Transport) (1989), 27 FTR 194, [1989] FCJ No 453 (QL) (FC TD) [Air Atonabee]; Aliments Prince Foods Inc v Canada (Department of Agriculture and Agri-Food) (1999), 164 FTR 104 at paras 24-25, [1999] FCJ No 247 (QL) (FC TD)). It was acknowledged that in practice this may well be a distinction without a difference and nothing turns on this question in the case at bar.
[36] For the following reasons, I agree that Vavilov has not changed the approach to section 44 proceedings established by prior jurisprudence.
[37] In Vavilov, the Supreme Court established a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. As set out in paragraph 17, the starting point is a general presumption that reasonableness is the standard of review that applies in all cases, subject to two exceptions: “The first is where the legislature has indicated that it intends a different standard or set of standards to apply.… The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied.”
[38] The Court’s discussion of when the presumption will be rebutted by a clear expression of legislative intent focuses on two situations: when a legislature includes a specific appeal provision in the legislation governing an administrative decision-maker (see Vavilov at paras 36-54), or when the legislature has prescribed the applicable standard of review, for example, as has been done in British Columbia in the Administrative Tribunals Act, SBC 2004, c 45, which established the applicable standards of review that apply across a range of administrative bodies (see Vavilov at paras 34-35).
[39] The rationale for this approach is explained in the following way in Vavilov:
[33] This Court has described respect for legislative intent as the “polar star” of judicial review. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards.
[Citations omitted.]
[40] Applying this guidance to the case at bar leads to the conclusion that the standard established by the prior case law should continue to apply. This is a situation in which Parliament has explicitly described the standard to be applied to review under section 44. A recent amendment to the Act added section 44.1, which the parties agreed applies to the instant case:
De novo review
Révision de novo
44.1 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.
44.1 Il est entendu que les recours prévus aux articles 41 et 44 sont entendus et jugés comme une nouvelle affaire.
[41] If respect for legislative intent is the “polar star” of judicial review, the message could not be clearer: a section 44 review is meant to be a de novo examination by the court of the decision to disclose.
[42] Therefore, the only conclusion that is consistent with the legislative intent, as expressed by section 44.1, and that continues to give effect to the purpose of the legislation set out in section 2 is to continue to apply the correctness standard through a de novo consideration of the decision to disclose third party documents in the context of a section 44 application. The third party can file new evidence on the issues before the court and little or no deference is due to the decision to disclose made by the government institution.
[43] For the foregoing reasons, I conclude that Vavilov has not altered the previous jurisprudence on the proper approach to a section 44 application. The framework established by Merck Frosst continues to apply and I will therefore conduct a de novo examination of the evidence submitted by the parties to determine whether the CFIA’s determination about which records can be disclosed is correct, giving no deference to the decision made by CFIA.
B. Are the records exempt from disclosure pursuant to any of the provisions of subsection 20(1) of the Act?
[44] Concord’s primary argument was that the records should be exempt pursuant to paragraph 20(1)(c) of the Act because their disclosure could reasonably be expected to cause it financial harm in the very competitive Canadian market.
[45] Concord also put forward an alternative argument that the records should be exempt from disclosure pursuant to paragraphs 20(1)(b) and (d) of the Act. These will be dealt with following the analysis of Concord’s argument on paragraph 20(1)(c).
(1) Legal framework
[46] The onus on the party opposing disclosure pursuant to paragraph 20(1)(c) is to demonstrate a “reasonable expectation of probable harm” (Merck Frosst at para 192). As Justice Rennie noted in Porter Airlines Inc v Canada (AG), 2014 FC 392 at paragraph 80 [Porter Airlines], this standard of proof is “somewhat unique” and therefore it must be described with “the greatest possible precision.”
[47] The Supreme Court described the standard in the following way, at paragraphs 196 and 199 of Merck Frosst:
However, I conclude that this long-accepted formulation is intended to capture an important point: while the third party need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the third party must nonetheless do more than show that such harm is simply possible.
…
I would affirm the Canada Packers formulation. A third party claiming an exemption under s. 20(1)(c) of the Act must show that the risk of harm is considerably above a mere possibility, although not having to establish on the balance of probabilities that the harm will in fact occur. This approach, in my view, is faithful to the text of the provision as well as to its purpose.
[Emphasis added.]
[48] As noted by Justice Rennie in Porter Airlines at paragraph 83:
[83] In essence, the Supreme Court’s statement above draws the boundaries within which a “reasonable expectation of probable harm” is situated: above the lower bound of “a mere possibility” and below the upper bound of “on a balance of probabilities.” The Supreme Court of Canada provided further precision by adding that these boundaries outline “a standard considerably higher than mere possibility, but somewhat lower than ‘more likely than not’”. Further, the Supreme Court elaborated on the substance of these upper and lower bounds. It described “a mere possibility of harm” as based in a fear of harm that is “fanciful, imaginary or contrived” rather than based on reason, and it described a balance of probabilities as “prov[ing] that harm is more likely than not”.
[Citations omitted.]
[49] In assessing this question, the Court is inevitably drawn into an exercise about the future, with all of its attendant uncertainties. Justice Michael Phelan provided useful guidance on this point in AstraZeneca Canada Inc v Health Canada, 2005 FC 1451 at paragraph 90 [AstraZeneca]:
[W]hile there is an element of forecasting and speculation inherent in this criterion, there are methods of establishing the reasonableness of the expectation. Mere recitation of the fear by an officer of the company is not sufficient. The Court requires specific evidence that those outcomes are reasonably probable.
[50] Justice Phelan cited with approval the admonition of Justice MacKay in SNC-Lavalin Inc v Canada (Minister of Public Works) (1994), 79 FTR 113, 49 ACWS (3d) 211 (FC TD) that it is not sufficient to merely affirm in an affidavit that harm will “undoubtedly occur” from disclosure, since this is the very determination the Court is called upon to make. Instead, what is required is evidence to support the conclusion that such harm is a reasonably probable consequence of releasing the records.
[51] The anticipated harms under paragraph 20(1)(c) are disjunctive, meaning that it is sufficient for Concord to show either that the disputed information will result in “material financial loss” or “prejudice its competitive position” (Merck Frosst at para 212; Canada (Office of the Information Commissioner) v Calian Ltd, 2017 FCA 135 at para 40 [Calian]).
[52] In addition, the case law is clear that anticipated negative or inaccurate media reporting about the information will not be sufficient to meet the test. As stated in Merck Frosst, the point of the Act “is to give the public access to information so that they can evaluate it for themselves, not to protect them from having it. In my view, it would be quite an unusual case in which this sort of claim for exemption can succeed” (at para 224). In part, this is because a third party concerned about unfair negative media coverage has other remedies to address such questions (Burnbrae Farms Ltd v Canada (Canadian Food Inspection Agency), 2014 FC 957 at paragraphs 112-113 [Burnbrae Farms] citing with approval Les Viandes du Breton Inc v Canada (Department of Agriculture) (2000), 198 FTR 233 at para 23, 2000 CanLII 16764 [Les Viandes du Breton 2000].
(2) The records in question
[53] The records in issue can be grouped into three categories:
a) Information about CFIA’s initial investigation into Concord’s plant, following the study;
b) Internal e-mails exchanged between CFIA employees relating to the follow-up to the study; and
c) Information about the Corrective Action Plan that the CFIA required Concord to develop following the study.
[54] Some of these records involve material generated by the CFIA and provided to Concord; others relate to information provided by Concord to the CFIA; still others relate to internal exchanges between CFIA officials.
(3) Position of the parties
[55] Concord submits that its evidence meets the threshold outlined above, and that unlike previous cases there is no need to engage in any speculation about what the likely result of disclosure will be because the journal article and media coverage provide tangible proof of precisely that.
[56] Concord argues that the impact of disclosure of these records must be assessed in the context of the evidence about its place in the Canadian market, in particular:
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[57] Concord submits that the CFIA itself recognized the potential harm that could result from any association between the study and Concord when it launched the investigation following the study. It points to an internal CFIA e-mail that states “inspection staff were requested to follow-up discretely” (CCTR at 541) as an indication that the CFIA recognized the potential damage that could be done to Concord if it was linked to the study.
[58] On the issue of the harm that would flow from disclosing the disputed records, Concord submits that the incorrect and misleading statements already published support a finding in its favour. It notes that one of the co-authors of the article published about the study was a CFIA official from the Food Safety Science Directorate in Ottawa, Ontario, and that this article contains several incorrect statements. In particular, Concord objects to the following suggestion:
[A] third of turkey products were found to be wholly substituted with chicken. The price of ground turkey in Canada for 2016 was more than that for ground chicken (Agriculture and Agri-Food Canada, 2016), suggesting that these instances of substitution may be economically motivated or that a gross mislabeling event occurred during production or packaging.
[59] Concord says that this statement is especially troubling because the records indicate that prior to the publication of the article the CFIA investigation had concluded that Concord did not deliberately substitute chicken for turkey in these sausages, but rather the issue arose largely because of the way the meat had been labelled and recorded when it was received at Concord’s facility. In addition, Concord submits that the statement is factually wrong because at the time there was not any difference in the price of chicken and turkey.
[60] Turning to the media coverage following publication of the article, Concord argues that the nature of the reporting provides tangible proof of the likely impact of the release of the disputed records. It describes the news coverage as negative and sensationalist and points to the following specific examples from the initial reporting in 2017: many stories refer to the detection of horse meat in some sausages, generally in sensationalist language and often immediately mentioning the turkey sausages that contained chicken meat; several of the stories discuss the turkey sausage error in the context of “food fraud” where producers deliberately substitute a cheaper product to increase their profits and some of these repeat the assertion in the journal article that the producer of the turkey sausages may have been motivated by economic considerations.
[61] Concord also notes that the publication of another study in February 2019 reignited media interest in the issue. Like the first study, the CFIA collaborated with the University of Guelph to obtain 100 sausages from Canadian retail stores to determine if the meat used in the sausage matched the meat listed on the label. News coverage of this study often mentioned the turkey sausage error discussed in the 2017 articles.
[62] Concord argues that the records that CFIA proposes to release identify it as the producer of the turkey sausages that contained chicken and makes clear that this happened at one of Concord’s meat production facilities. Some of these sausages were sold under Concord’s brand Marcangelo, and one was a private label product Concord produced for another company. Any press reporting linking Concord and these brands to the previous stories would have an immediate and significant impact, in particular because of the prior negative stories that insinuated that the meat substitution was deliberately done for economic reasons.
[63] In its written submissions Concord sets out the basis for its concerns in the following way:
99. The reality is that the media will continue to publish sensationalistic articles, which will unfairly link Concord and the Marcangelo brand to the horse meat issue and the problem of “food fraud”. The news coverage will continue repeating the false suggestion that CFIA made in the 2017 Article, that Concord deliberately substituted chicken for turkey for economic reasons.
100. If CFIA, a government regulator, is unwilling to characterize Concord’s conduct accurately, there is little reason to believe that the media will be more fastidious on this point. The unfair manner in which the media will publish the Identifying Information will exacerbate the economic harm suffered by Concord.
[64] Concord argues that under paragraph 20(1)(c) it need only demonstrate that disclosing this information could reasonably be expected either to cause it material financial loss or to prejudice its competitive position (Merck Frosst at para 212). It submits that the evidence easily satisfies either branch. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||
[65] In response, the CFIA argues that Concord failed to establish a reasonable expectation of probable harm because the evidence it filed is lacking in specifics and amounts to speculation. Furthermore, the CFIA submits that prior case law has cautioned against applying the financial harm exemption based on the potential for public misunderstanding. Rather, the onus is on the party seeking to prevent disclosure to go well beyond specul