Burnbrae Farms Limited v. Canada (Canadian Food Inspection Agency)

Burnbrae Farms Limited v. Canada (Canadian Food Inspection Agency)
Court (s) Database
Federal Court Decisions
Date
2014-10-08
Neutral citation
2014 FC 957
File numbers
T-1053-13, T-699-13
Notes
A correction was made on April 30, 2015.
Decision Content
Date: 20141008
Dockets: T-699-13
T-1053-13
Citation: 2014 FC 957
Ottawa, Ontario, October 8, 2014
PRESENT: The Honourable Madam Justice Strickland
Docket: T-699-13
BETWEEN:
BURNBRAE FARMS LIMITED
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
Docket: T-1053-13
AND BETWEEN:
BURNBRAE FARMS LIMITED
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
ORDER AND REASONS
[1] This is an application for judicial review, brought pursuant to s. 44 of the Access to Information Act, RSC 1985, c A-1 (Act), of two decisions of the Canadian Food Inspection Agency (CFIA) to disclose certain information. The first decision is dated April 2, 2013 and is related to matter T-699-13. The second is dated May 27, 2013 and is related to matter T-1053-13. By Order of this Court dated July 9, 2013, the two applications were consolidated.
Factual Background [2] The Applicant, Burnbrae Farms Limited, is the owner and operator of egg farms across Canada and sources eggs from farmers in several provinces. As a food processing company, it is subject to inspections by CFIA.
[3] CFIA is established pursuant to the Canadian Food Inspection Agency Act, SC 1997, c 6, s 3. As a part of its statutory obligations, CFIA is required to carry out regulatory inspections pursuant to Part IV, Inspection and Certification, of the Egg Regulations, CRC, c 284 (Egg Regulations) pursuant to the Canada Agricultural Products Act, RSC 1985, c 20 (4th Supp). The latter is described as an act to regulate the marketing of agricultural products in import, export and interprovincial trade and to provide for national standards and grades of agricultural products, for their inspection and grading, for the registration of establishments and for standards governing establishments.
[4] CFIA is a government institution as set out in Schedule 1 and s. 3, of the Act.
T-1053-13 [5] CFIA received an access to information request seeking:
[…] the 2009-10 inspection (or audit) reports for the egg-grading and egg-processing operations of:
Burnbrae Farms Mississauga,
Division of Burnbrae Farms Limited […]
[6] By letter of March 9, 2011 (mistakenly dated March 9, 2010), referred to therein as the notice, CFIA informed the Applicant that it had received the above request for information. It also advised the Applicant that although it had reason to believe that the records sought might contain certain information described in and potentially exempted from disclosure by s. 20(1)(b), (c), and/or (d) of the Act, it did not have sufficient information in its files to substantiate this; that CFIA was required by the Act to make a decision whether or not to disclose the records, or parts thereof, 30 days after the notice; and, that the Applicant had 20 days from the mailing date of the notice to make written representations to CFIA as to why the records should not be disclosed. The letter attached copies of ss. 19, 20, 27 and 28 of the Act and the records at issue.
[7] Counsel for the Applicant responded by letter dated March 28, 2011 objecting to the release and making submissions as to why the records and information should not be disclosed and were exempt from disclosure under s. 20(1)(b) of the Act.
[8] On April 12, 2011, CFIA sent a letter to the Applicant advising that its representations had been reviewed and that CFIA considered them sufficient to partially withhold the requested information on the basis of s. 19 and s. 20(1)(b) of the Act. However, the documents could not be withheld in their entirety as they were CFIA records. Copies of the redacted records that CFIA intended to disclose were enclosed. The letter also stated that the Applicant was entitled under s. 44 of the Act to apply to this Court for a review of CFIA’s decision within 20 days of the mailing date of that notice.
[9] The Applicant did not apply for judicial review within 20 days and the redacted records, in the form provided in CFIA’s April 12, 2011 letter, were released to the requestor.
[10] On August 17, 2011 the requestor made a complaint to the Information Commissioner of Canada (IC). In that regard, the IC sent a Notice of Intention to Investigate and Summary of Complaint to CFIA on August 19, 2011, advising that the IC had received a complaint alleging that CFIA had improperly applied the exemptions, so as to unjustifiably deny access to the records, or portions thereof, requested under the Act.
[11] By letter of June 8, 2012, CFIA informed the Applicant that the complaint had been made and that after further review of the records and the IC’s recommendations, it believed more information should be released. As such, it was consulting the Applicant to seek its representations. CFIA enclosed a copy of the records that it intended to disclose to the requestor. It again stated that although it had reason to believe that the records sought might contain certain information described in s. 20(1)(b), (c), and/or (d), it did not have sufficient information in its files to substantiate this. CFIA advised that it was required to make a disclosure decision within 30 days of the notice and that the Applicant had 20 days from the mailing date of the notice to make written representations as to why the records should not be disclosed. It again attached copies of ss. 19, 20, 27 and 28 of the Act as well as copies of the records at issue.
[12] In response, by letter of July 10, 2012, the Applicant stated that it had previously made written representations, that its position was unchanged and reiterated the content of its March 28, 2011 letter.
[13] On May 27, 2013, CFIA wrote to the Applicant advising that it had reassessed the Applicant’s representations and, further to the IC’s recommendations, it no longer considered the reasons provided by the Applicant to be sufficient to withhold all the requested information on the basis of s. 20(1)(b) of the Act. Therefore, CFIA intended to now disclose the information to the requestor. It attached the subject records, noting that the darkened portions would be redacted prior to disclosure. It further advised that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of the notice, to this Court for judicial review of its decision.
[14] On June 13, 2013 the Applicant issued a Notice of Application seeking judicial review of CFIA’s May 27, 2013 decision.
T-699-13 [15] CFIA received an access to information request seeking:
[…] copies of the results of CFIA random sampling and checking of eggs to determine the accuracy of grading at facilities owned by L.H. Gray and Sons Ltd. and/or GrayRidge Farms Ltd. in the province of Ontario, and of Burnbrae Farms Ltd., also in the province of Ontario, for the fourth quarters (October, November and December) of 2009, 2010 and 2011.
[16] By letter of March 28, 2012, referred to therein as the notice, CFIA informed the Applicant that it had received the above request for information. Further, that although it had reason to believe that the records sought might contain certain information described in and potentially exempted from disclosure by s. 20(1)(b), (c), and/or (d), it did not have sufficient information in its files to substantiate this. It advised that CFIA was required by the Act to make a decision whether or not to disclose the records, or parts thereof, 30 days after the notice, and that the Applicant had 20 days from the mailing date of the notice to make written representations as to why the records should not be disclosed. The letter attached copies of ss. 19, 20, 27 and 28 of the Act and the records at issue and noted that the darkened information in those records might be protected pursuant to s. 19(1) of the Act as CFIA believed it to be personal information.
[17] Counsel for the Applicant responded by letter dated April 10, 2012 objecting to the release and making submissions as to why the records and information should not be disclosed and were exempt from disclosure under s. 20(1)(b) of the Act.
[18] On April 27, 2012, CFIA sent a letter to the Applicant advising that its representations had been reviewed and that CFIA did not consider them sufficient to withhold the requested information on the basis of s. 20(1)(b) of the Act. A copy of the records that CFIA intended to disclose were enclosed, CFIA noted that some of the information had been exempted under s. 19(1) and s. 20(1)(b) and (c). The letter also stated that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of that letter/notice, to this Court for judicial review of its decision.
[19] The Applicant did not apply for judicial review within 20 days and the redacted records, in the form provided in CFIA’s April 27, 2012 letter, were released to the requestor.
[20] On July 3, 2012 the requestor made a complaint to the IC. In that regard, the IC sent a Notice of Intention to Investigate and Summary of Complaint, dated July 6, 2012, to CFIA. This advised that the IC had received a complaint alleging that CFIA had improperly applied exemptions, so as to unjustifiably deny access to records, or portions thereof, requested under the Act.
[21] By letter of April 2, 2013, CFIA informed the Applicant that the complaint had been made, it had re-assessed the Applicant’s representations and, further to the IC’s recommendations, it no longer considered the reasons the Applicant had provided to be sufficient to withhold the requested information on the basis of s. 20(1)(b) or (c) of the Act. Therefore, CFIA intended to now disclose the information to the requestor. It attached the subject records and noted that, pursuant to s. 19 of the Act, the darkened portions would be redacted prior to disclosure to the requestor. Further, that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of the letter/notice, to this Court for judicial review of its decision.
[22] On April 22, 2013 the Applicant issued a Notice of Application seeking judicial review of CFIA’s April 2, 2013 decision.
[23] On July 9, 2013 a Confidentiality Order was granted in accordance with Rules 151 and 152 of the Federal Courts Rules, SOR/98-106 (Rules) and s. 47(1) of the Act.
The Records [24] The information at issue in these two matters is contained in one of four types of reports:
i) Shell Egg Product Inspection Reports;
ii) Egg Station Inspection/Rating Reports;
iii) Pre-grade/Canada Nest Run Product Inspection Reports; and
iv) Notices of Detention and Notices of Release from Detention.
[25] Shell Egg Product Inspection Reports are CFIA forms. They identify the name and address of the station, the inspection date, and other such information. In tabular form they set out columns headed as: Lot Description; Start Inspection Level; Units in Lot; Sample Size; Acceptance/Rejection Numbers; Undergrades (separated into Cracks and Undergrades Other than Cracks); Accept/Reject Unit; Leakers; Rejects; Accept/Reject Lot; and, End Inspection Level. They are completed by the inspector and signed by both the inspector and on behalf of the operator (these reports are also entitled Shell Egg Product Inspection Report Origin and Shell Egg Inspection Report. Another type of form in this category is the Inspection Report of Shell Eggs / Processed Egg which is of a different format than that described above).
[26] Egg Station Inspection/Rating Reports are also CFIA forms. They too identify the name and address of the station, the inspection date and other such information. The form is divided into two main parts: Sanitation Rating and Plant Rating. The part entitled Sanitation Rating is broken down into four subsections. For the first two subsections – Egg Handling and Other Areas – the maximum potential points for each of sanitation and operation in each listed area (e.g. grading room, conveyor, etc.) are assigned. These range from 5 to 20 points, depending on the area. The inspector fills in the number of points actually awarded, the points lost by being below the potential maximum, and any remarks. The next subsection – Temperature and Relative Humidity – sets out permissible temperature ranges for ungraded and graded coolers and relative humidity ranges. The inspector fills in which categories the coolers fell under, any points lost, and can record the actual temperatures and relative humidity under the remarks section. The final subsection – Washwater – is concerned with the condition of washwater and is similarly completed. The inspector ticks either excellent, good, fair, serious or critical in terms of sanitation for that day’s inspection and assigns a letter for the Product Inspection Level. The second major part of the form – Plant Rating – includes boxes for demerits on previous inspections, the current inspection, total demerits, a plant rating, as well as additional comments. The form is signed by the inspector and on behalf of the operator.
[27] Pre-grade/Canada Nest Run Product Inspection Reports are also CFIA forms. They identify the name and address of the inspection station, the inspection date, and other such information. They include sections entitled Lot Description; Units in Lot; Sample Size; and Number of Eggs Examined. In tabular form they subdivide into Pregrade and Canada Nest Run. Under Pregrade, there are columns for the number of eggs, percentage, and permissible Pregrade Standard for each of: cracked shells; inferior shells; dirty shells (three categories); air cell; stain; leakers; and leakers and rejects, to be filled in by the inspector, as well as boxes for a total and an average. Similar information can be entered in the Canada Nest Run section. Haugh Units and Egg Weight can also be recorded. In the Results sections, either Lot Accepted or Lot Rejected is ticked off by the inspector. There is also a remarks section. The form is signed by the inspector and on behalf of the operator.
[28] Notices of Detention and Notices of Release from Detention are again CFIA forms. The Notice of Detention is issued to an entity to be named in the form along with the quantity, date and place of seizure, and detention tag number. The reason for seizure and detention, being the contravention of the identified section of the applicable act and regulation, and the action to be taken is entered by the inspector. The Notice of Release from Detention is to be completed by the inspector and refers to the detention tag number, date of seizure, description and quantity of the product detained, and reason for release from detention.
Legislative Background [29] The most relevant provisions of the Act are found in the Schedule to this decision.
[30] The Act attempts to balance the right of public access to government records recognized in s. 2(1) with the protection of third party interests in s. 20(1). This was described by the Supreme Court in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 [Merck Frosst]:
[21] The purpose of the Act is to provide a right of access to information in records under the control of a government institution. The Act has three guiding principles: first, that government information should be available to the public; second, that necessary exceptions to the right of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewed independently of government (s. 2(1)).
[22] In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 61, La Forest J. (dissenting, but not on this point) underlined that the overarching purpose of the Act is to facilitate democracy and that it does this in two related ways: by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and officials may be held meaningfully to account to the public. This purpose was reiterated by the Court very recently, in the context of Ontario’s access to information legislation, in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815. The Court noted, at para. 1, that access to information legislation “can increase transparency in government, contribute to an informed public, and enhance an open and democratic society”. Thus, access to information legislation is intended to facilitate one of the foundations of our society, democracy. The legislation must be given a broad and purposive interpretation, and due account must be taken of s. 4(1), that the Act is to apply notwithstanding the provision of any other Act of Parliament: Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110, at p. 128; Canada (Privacy Commissioner) v. Canada (Labour Relations Board), [1996] 3 F.C. 609, at para. 49, aff’d (2000), 25 Admin. L.R. (3d) 305 (F.C.A.).
[23] Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal of broad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation and development. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, it affords substantive protection of the information by specifying that certain categories of third party information are exempt from disclosure. Second, it provides procedural protection. The third party whose information is being sought has the opportunity, before disclosure, to persuade the institution that exemptions to disclosure apply and to seek judicial review of the institution’s decision to release information which the third party thinks falls within the protected sphere. […]
It is within this context that this application for judicial review must be undertaken.
Issues [31] I agree with the Applicant that the issues on this application for judicial review are as follows:
What is the proper standard of review to be applied to decisions of CFIA? Did CFIA correctly apply the s. 20(1) exemptions to the records at issue? Was the Applicant afforded procedural fairness in CFIA’s decision-making process?
ISSUE 1: What is the proper standard of review to be applied to decisions of CFIA? Parties’ Submissions [32] The parties agree that the standard of review for decisions of CFIA challenged pursuant to s. 44(1) of the Act is correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 50, 62 [Dunsmuir]; Merck Frosst, above, at para 53; Les Viandes du Breton Inc v Canada (Canadian Food Inspection Agency), 2006 FC 335 at para 30 [Les Viandes]).
Analysis [33] Where previous jurisprudence has satisfactorily determined the appropriate standard of review applicable to a particular issue, that standard may be adopted by a subsequent reviewing court (Dunsmuir, above, at paras 57, 62).
[34] The Supreme Court of Canada in Merck Frosst stated that “[u]nder 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.” Therefore, it followed that when a third party makes a request pursuant to s. 44 of the Act for a review by this Court of a decision by a head of a government institution to disclose all or part of a record, the Court is to determine whether the institutional head has correctly applied the exemptions to the records in issue: “[T]he 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.” This review has sometimes been referred to as a de novo assessment of whether the record is exempt from disclosure (Merck Frosst, above, at para 53).
[35] Accordingly, the standard of review in this matter is correctness.
ISSUE 2: Did CFIA correctly apply the section 20(1) exemptions to the records at issue? Section 20(1)(a) Exemption Applicant’s Submissions [36] The Applicant submits that the information contained in the Egg Station Inspection/Rating Reports satisfies the class test for trade secrets under s. 20(1)(a) of the Act (AstraZeneca Canada Inc v Health Canada, 2005 FC 189 (affirmed by FCA 2006 FCA 241) at para 41 [AstraZeneca]).
[37] In support of its application in matter T-699-13 the Applicant filed an affidavit of Joseph Edward (Ted) Hudson, Vice President of Retail Sales and Industry Relations for Burnbrae Farms Limited, dated June 20, 2013 (Hudson Affidavit #1). In support of matter T-1053-13 the Applicant filed an affidavit of Mr. Hudson dated July 29, 2013 (Hudson Affidavit #2).
[38] With respect to the Egg Station Inspection/Rating Reports, Hudson Affidavit #2 deposes that these documents are confidential inspector worksheets and include information that the Applicant provided to CFIA detailing water levels, temperatures, and pH levels during the pre-wash, wash and rinse cycles as well as air temperature and humidity levels in various areas of the Applicant’s production facilities. This is technical-scientific information related to the Applicant’s operations and facilities practices.
[39] Based on the Hudson affidavits, the Applicant submits that this information meets the criteria for s. 20(1)(a) as:
i) The information relates to the Applicant’s own unique facilities management and sanitation methods which is never disclosed to any third party or to the public;
ii) Egg producers and graders in Canada all employ their own methods for sanitation and facilities management. The Applicant diligently protects this information from being disclosed by any employees with access to it by way of its Employment Agreements and Offer Letters. These put employees on notice that it is a condition of their employment to maintain the confidentiality of information. Confidential information includes information relating to the Applicant’s business operations, methods, practices, specifications and other technical and business information;
iii) The information relates to the unique way in which the Applicant sanitizes its eggs and the techniques it has developed to accomplish this. It also relates to how it manages and controls its facilities. The methods used have been extremely successful and are part of the reason why the Applicant is an industry leader. The information could easily be applied by a competitor; and
iv) The Applicant has developed these methods through years of experience in the industry and accordingly has a clear legal interest in them that is worthy of protection.
[40] The Applicant submits that the disputed information concerns methodology and is similar to the information considered by this Court in PricewaterhouseCoopers, LLP v Canada (Minister of Canadian Heritage), 2001 FCT 1040 at paras 14-17 [PricewaterhouseCoopers].
Respondent’s Submissions [41] The Respondent submits that the information contained in the Egg Station Inspection/Rating Reports is not a trade secret, but represents publicly-available regulatory requirements. The Egg Regulations set out standardized regulatory requirements for water temperature, pH levels, air temperature and humidity. The information in the Egg Station Inspection/Rating Reports establishes whether the Applicant has met these regulatory requirements. The fact that the Applicant, for example, maintains an air temperature at a level lower that 10°C, in accordance with the requirements applicable to all operators, is not something of a technical nature which is guarded closely and is of such peculiar value to the owner that harm is presumed by its disclosure. Further, the information represents readings taken by a CFIA inspector at a particular point in time. The documents do not particularize the Applicant’s facilities’ management and sanitation methods, and documents that do set out such information have been redacted where appropriate, pursuant to s. 20(1)(b) of the Act.
[42] The term ‘trade secret’ must be given a reasonably narrow interpretation so as not to overlap with other categories of exempted information. It must be something, probably of a technical nature, that is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to the owner is presumed by its mere disclosure (Société Gamma Inc v Canada (1994), 79 FTR 42 at para 7 (TD) [Société Gamma]).
[43] The fact that the Applicant, like other operators subject to the Egg Regulations, follows the established regulatory requirements cannot be found to rise to the definition of trade secret.
Analysis [44] Section 20(1)(a) of the Act provides an exemption from disclosure under the Act for trade secrets:
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
[…]
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) des secrets industriels de tiers;
[…]
[45] The trade secret exemption is class based. Once information in the record corresponds to the statutory provision, that information is exempted and the head must refuse to disclose it (Merck Frosst, above, at para 99; AstraZeneca, above, at para 41).
[46] A trade secret “must be something, probably of a technical nature, which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed from its mere disclosure” (Société Gamma, above, at para 7; AstraZeneca, above, at para 62). The point is not whether the term is to receive a broad or a narrow definition, but rather that the term should be given its traditional legal meaning (AstraZeneca, above, at para 63, aff’d in Merck Frosst, above, at para 111). Parliament intended to protect genuine trade secrets (AstraZeneca, above, at para 63).
[47] In Merck Frosst, above, the Supreme Court of Canada conducted an analysis of what comprises a trade secret in the context of s. 20(1) of the Act and concluded:
[112] Phelan J.’s reasons, along with the portion of the Guidelines which he adopts, appropriately capture that traditional legal meaning. A “trade secret” for the purposes of s. 20(1) of the Act should be understood as being a plan or process, tool, mechanism or compound which possesses each of the four characteristics set out in the Guidelines which I have quoted above. This approach is consistent with the common law definition of “trade secrets” and takes account of the clear legislative intent that a trade secret is something different from the broader category of confidential commercial information which is separately and specifically protected under the Act. This approach is also consistent with the use of “secrets industriels” in the French version of the Act, as discussed above.
[48] Thus, the Supreme Court confirmed in Merck Frosst, above, at para 109 that in order to qualify as a trade secret, the information must consist of a “plan or process, tool, mechanism or compound” that possesses each of the following characteristics:
i) The information must be secret in the absolute or relative sense (known only to a relatively small number of persons);
ii) The third party must demonstrate that it has acted with the intention to treat the information as secret;
iii) The information must be capable of industrial or commercial application; and
iv) The third party must have an interest (e.g. economic) worthy of legal protection.
[49] In my view, the water levels, temperatures and pH levels during the pre-wash, wash and rinse cycles in the sanitation of production, as well as the air temperature and humidity levels contained in the Egg Station Inspection/Rating Reports, is not information that constitutes a trade secret within the meaning of s. 20(1)(a).
[50] The Egg Station Inspection/Rating Reports are a template form generated by CFIA. The form is used by an inspector to record his or her observations made during an inspection and/or information provided by the producer in response to the inspection. Section 9 of the Egg Regulations concerns the operation and maintenance of registered egg stations. Every operator is required to operate and maintain the registered egg station in accordance with that section which includes provisions pertaining to temperature and humidity. Section 9(16) states that the relative humidity in any room where eggs are held in a registered egg station shall be maintained at not more than 85%. Section 9(18) states that the temperature of any room where eggs are held in a registered egg station shall be maintained at not more than (a) 10°C in the case of a room holding eggs graded Canada A, Canada B or Canada C; and (b) 13°C in the case of a room holding eggs graded Canada Nest Run, ungraded eggs or eggs bearing a dye-mark. Section 9(31) states that the water that is used to wash eggs shall be at least 11°C warmer than the eggs and, in the case of a system that uses recirculated water, the water shall be maintained (a) at a temperature that is not less than 40°C; and (b) at a pH level that is not less than 10. These standards are all reflected in the form that comprises the Egg Station Inspection/Rating Reports as comparators to be met by the egg station under inspection.
[51] Thus, the information that was entered in each Egg Station Inspection/Rating Report by an inspector is intended to and establishes whether or not the Applicant is in compliance with those regulatory requirements. As noted above, the form sets points for each item and the inspector records any points lost for non-compliance. It also allows for additional remarks by the inspector concerning sanitation and operations.
[52] In my view, this information as recorded by inspectors in the Egg Station Inspection/Rating Reports at the point in time of the subject inspections does not comprise a “plan or process, tool, mechanism or compound.” It is simply data points recorded at a given time. I agree with the Respondent that these records do not particularize the Applicant’s facilities management and sanitation methodologies and, while these readings may be related to the Applicant’s operations and facilities practices, I am not persuaded that they disclose those operations and practices. In this regard, it is relevant that other documentation such as the Applicant’s standard operation procedures and hazard analysis and control points plan, which in fact do describe processes, procedures and operations developed by and specific to the Applicant, have been withheld from disclosure pursuant to the s. 20(1)(b) exemption as proprietary information.
[53] The Applicant also submits that this information is similar to the information considered in PricewaterhouseCoopers, above. There, the Department of Canadian Heritage contracted the applicant's services for the purpose of reviewing, analyzing, and recommending changes to its documents being used to contract-out or “outsource” elements of its work. Justice Campbell found that the assignment was conducted within a relationship that had as a fundamental feature a concern for the confidentiality of the two reports produced constituting the results of the assignment. The applicant had applied its own proprietary methodologies and information in order to review, analyze, and make recommendations to the Department. Justice Campbell concluded that the work product, being the reports, was capable of proving the methodology used to produce it and, therefore, that the reports contained trade secrets.
[54] In my view, PricewaterhouseCoopers can be distinguished on its facts. At issue in that case was release of two complete reports that were generated using a confidential methodology. The Egg Station Inspection/Rating Reports are one page documents generated by CFIA for regulatory compliance purposes. Further, the data recorded in the reports is limited and specific and, as noted above, does not amount to a plan, process, tool, mechanism or compound. Nor does it disclose a methodology or permit disclosure of such methodology by way of reverse engineering.
[55] I would also note that in PricewaterhouseCoopers, above, the reports themselves contained confidentiality clauses which stated that the information they contained was of a confidential technical nature and was being supplied on that basis. Further, one of the reports stated on its face that the non-confidential disclosure of the information could potentially harm Coopers & Lybrand's competitive position and/or materially interfere with ongoing or future contract/tender negotiations. Finally, each page of each of the reports was marked “STRICTLY PRIVATE & CONFIDENTIAL -- NOT FOR DISCLOSURE OUTSIDE PCH [Canadian Heritage].” Conversely, the Egg Station Inspection/Rating Reports state: “Information may be accessible or protected as required under the provisions of the Access to Information Act.”
[56] In considering the scheme of the Act, the Supreme Court in Merck Frosst, above, (at para 106) addressed the distinction between trade secrets and confidential information as expressed in s. 20(1)(a) and (b) and found that this suggested that trade secrets in s. 20(1)(a) was intended to be a narrower concept than the more general class of confidential, financial, commercial, scientific or technical information set out in s. 20(1)(b). In my view, the subject information contained within the Egg Station Inspection/Rating Reports does not fall within that narrower concept and, therefore, those reports are not exempt from disclosure as a trade secret pursuant to s. 20(1)(a).
Section 20(1)(b) Exemption Applicant’s Position [57] The Applicant submits that the Shell Egg Product Inspection Reports, Notices of Detention and Notices of Release from Detention contain commercial information that satisfies the class test for s. 20(1)(b) (Merck Frosst, above, at paras 139-140, 146, 157-158; HJ Heinz Co of Canada Ltd v Canada (Attorney General), 2003 FCT 250 at para 36; Fédération des producteurs acéricoles du Québec v Canada (Canadian Food Inspection Agency), 2007 FC 704 at para 36 [Fédération des producteurs acéricoles du Québec]).
[58] The information contained under the headings “Lot Descriptions” and “Units in Lot” in the Shell Egg Product Inspection Reports identify the Applicant’s customers by name or brand as well as the type and volume of product the Applicant ships to them. This customer information is also provided in the Notices of Detention and Notices of Release from Detention. The information is confidential and is not publicly available. While it is possible to determine who the Applicant’s customers are by viewing its products in stores, it would not be practical to obtain information in this manner concerning the volumes that they purchase. The information was supplied to CFIA by the Applicant and it has consistently been treated as confidential by the Applicant.
[59] Customer lists are valuable commercial information and such information is known only by persons within the Applicant’s operations on a need to know basis such as those in the marketing, shipping, and sales departments. Employees are also subject to confidentiality and non-disclosure conditions in their contracts of employment. Further, the Applicant has for many years resisted attempts by the Egg Farmers of Canada to require egg graders to provide sales information regarding their customers and the volume and sizes of their orders. The Applicant only provides such information with the express condition that its sales data is amalgamated with that of other graders and, even then, the data is provided by size and not by brand.
Respondent’s Position [60] The Respondent submits that the Applicant has not met the four part Air Atonabee test (Air Atonabee Ltd v Canada (Minister of Transport), [1989] FCJ No 453 [Air Atonabee] for the s. 20(1)(b) exemption as set out in Canada Post Corp v National Capital Commission, 2002 FCT 700 at para 10 [Canada Post 2002].
[61] The disputed information is publicly available. It is possible for a competitor to determine who the Applicant’s customers are from a plain view of the product offerings found in a store. Further, the CFIA inspectors’ reports are a random sample inspection of some of the Applicant’s products. They are not complete customer lists nor do they detail the entire type and volume of customer purchases. There is also no reasonable expectation of confidence and no public interest in maintaining confidentiality of the CFIA inspection reports and notices in this case as per the second criteria of the Air Atonabee test (StenoTran Services v Canada (Minister of Public Works and Government Services) (2000), 186 FTR 134 at para 9; Canadian Tobacco Manufacturers’ Council v Canada (Minister of National Revenue), 2003 FC 1037 at para 114 [Canadian Tobacco Manufacturers]; Brookfield LePage Johnson Controls Facility Management Services v Canada (Minister of Public Works and Government Services), 2003 FCT 254 at para 16 (TD); Société Gamma, above; Ottawa Football Club v Canada (Minister of Fitness and Amateur Sports), [1989] 2 FC 480, 24 FTR 62 at para 12; Maislin Industries Ltd v Minister for Industry, Trade and Commerce, [1984] 1 FC 939 at 947).
[62] While the Applicant’s standard operation procedures manual and other documents collected by CFIA may have been submitted with the expectation of confidentiality, there was no such expectation with regard to CFIA’s assessment and conclusions. Further, the fact that the information was treated confidentially within the Applicant’s business does not alter how it is treated by CFIA or the principles set out in the Act (Les Viandes, above, at para 52). Where the records are from department sources, the general purpose of the Act, which identifies the provision of access to government controlled records as a public interest given priority by Parliament, should be given effect (Air Atonabee, above, at para 49).
[63] The records at issue were also not supplied to a government institution by a third party as the information is CFIA’s opinion, comments and recommendations arrived at in the course of its regulatory mandate. This proposed disclosure reflects the approach in Canada Packers Inc v Canada (Minister of Agriculture), [1989] 1 FC 47 (CA) at para 12 [Canada Packers] (see also Merck Frosst, above; Air Atonabee, above, at para 51; Les Viandes, above).
Analysis [64] Pursuant to s. 20(1)(b), the head of a government institution shall refuse to disclose any record requested under the Act that contains “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.”
[65] Like s. 20(1)(a), s. 20(1)(b) creates a class test (AstraZeneca, above, at para 41) where the nature or characteristics and treatment of the information is determinative.
[66] To meet the s. 20(1)(b) exemption, the Applicant must satisfy the four part test from Air Atonabee as restated in Canada Post 2002 at para 10, both above (see also Merck Frosst, above, at paras 94-95, 139-140, 146, 157-158) that, on a balance of probabilities, the information is:
financial, commercial, scientific, or technical information as those terms are commonly understood; confidential in its nature, according to an objective standard which takes into account the content of the information, its purposes and the conditions under which it was prepared and communicated; supplied to a government institution by a third party; and treated consistently in a confidential manner by the third party.
[67] As to the first criteria, it is