Canada (Office of the Information Commissioner) v. Calian Ltd.

Canada (Office of the Information Commissioner) v. Calian Ltd.
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-06-22
Neutral citation
2017 FCA 135
File numbers
A-20-16, A-31-16
Notes
Digest
Decision Content
Date: 20170622
Dockets: A-20-16
A-31-16
Citation: 2017 FCA 135
CORAM:
DE MONTIGNY J.A.
GLEASON J.A.
WOODS J.A.
A-20-16
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
CALIAN LTD.
AND
INFORMATION COMMISSIONER OF CANADA
Respondents
A-31-16
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant
and
CALIAN LTD.
AND
ATTORNEY GENERAL OF CANADA
Respondents
Heard at Ottawa, Ontario, on January 25, 2017.
Judgment delivered at Ottawa, Ontario, on June 22, 2017.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
GLEASON J.A.
WOODS J.A.
Date: 20170622
Dockets: A-20-16
A-31-16
Citation: 2017 FCA 135
CORAM:
DE MONTIGNY J.A.
GLEASON J.A.
WOODS J.A.
A-20-16
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
CALIAN LTD.
AND
INFORMATION COMMISSIONER OF CANADA
Respondents
A-31-16
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant
and
CALIAN LTD.
AND
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] These appeals raise the interesting question of the interplay between contractual law and the statutory regime governing access to information in Canada. More particularly, the ultimate result of these appeals turns on the impact of a disclosure clause on the third party information exemptions found under the Access to Information Act, R.S.C. 1985, c. A-1 (the Act). For the reasons that follow, I am of the view that the clause in question constitutes consent to disclosure to the public of otherwise exempt information under the Act. However, such consent is not determinative of whether the information in question must be disclosed. I would therefore grant the appeals in part, but would make no award of costs as success on the various arguments was divided.
I. Background [2] The respondent Calian Ltd. (Calian) is an Ottawa-based company that provides flexible and short-term personnel services in the engineering, information technology, health care, and telecommunications sectors. A large portion of its business activities arises from the procurement of placement services to the federal government. As such, it routinely participates in federal procurement processes.
[3] In 2009, Public Works and Government Services Canada (PWGSC, represented by the Attorney General of Canada) launched a tendering process by way of a Request for Standing Offer (RFSO) for the provision of research assistance to the Royal Military College of Canada (RMC or the College). RMC is mandated to equip the Department of National Defence (DND) and a number of other governmental departments with research and other forms of support. As the College’s funding to hire research assistants is linked to federal grants obtained by professors, it utilizes the federal procurement process every five years to fulfill its various and complex personnel needs.
[4] The purpose of the 2009 RFSO was framed as seeking to assist RMC in the carrying out of its research and development activities within three Faculties (Arts, Engineering and Science) and two Divisions (Graduate Studies & Research and Continuing Studies). The RFSO required that bidding parties include detailed personnel rates, in the form of “firm all-inclusive hourly rates”, for approximately 100 different categories of personnel, along with any annual adjustments to those personnel rates over the five-year life of the contract (see RFSO, Exhibit “A” to the Affidavit of Louise Kelly sworn May 30, 2014, Appeal Book, Vol. 8, Tab 20 at pp. 1849 and following).
[5] The RFSO also specified that PWGSC’s 2005 (25/05/07) General Conditions – Standing Offers – Goods and Services (the General Conditions) form a part of the Standing Offer. These General Conditions require that bidding parties agree to the disclosure of their standing offer unit prices or rates pursuant to the following clause (the Disclosure Clause):
The Offeror agrees to the disclosure of its standing offer unit prices or rates by Canada, and further agrees that it will have no right to claim against Canada, the Identified User, their employees, agents or servants, or any of them, in relation to such disclosure.
Disclosure Clause, Exhibit “E” to the Affidavit of Louise Kelly sworn May 30, 2014, Appeal Book, Vol. 8, Tab 20 at p. 1870. See also Clause 3.1 of the RFSO, Exhibit “A” to the Affidavit of Louise Kelly sworn May 30, 2014, Appeal Book, Vol. 8, Tab 20 at p. 1833.
[6] Calian, which had successfully tendered bids in 1997 and 2002 for a similar type of work for RMC, was again successful in its 2009 bid to PWGSC. On November 30, 2009, standing offer W0046-080001/001/TOR (the 2010-14 Standing Offer) was issued to Calian, thereby making it the exclusive supplier of specialized research personnel to RMC for the period of January 1, 2010 to December 31, 2014, with the possibility of extension by PWGSC for a further one-year period.
[7] On November 1, 2013, PWGSC received a request under the Act for a copy of “all contracts, contracts amendments, correspondences and e-mails” relating to the contract awarded to Calian for the period of 2009/11/30 to 2013/03/01 (2013 Access Request, Exhibit “H” to the Affidavit of Jerry Johnston sworn March 10, 2014, Appeal Book, Vol. 7, Tab 18 at p. 1565). Pursuant to subsection 27(1) of the Act, PWGSC consulted Calian before responding to the request regarding the disclosure of certain information. In its correspondence, PWGSC invited Calian to make representations as to why the records subject to the 2013 Access Request should not be disclosed. PWGSC also notified Calian that the disclosure of information clause incorporated in the 2010-2014 Standing Offer prevented it from treating its unit prices and personnel rates as confidential third party information.
[8] In addition to requesting that any information regarding its employees and its own procurement and GST numbers be redacted, Calian took the position that the information contained in its personnel rates was proprietary in nature, and thus exempt from disclosure under paragraph 20(1)(b) of the Act. Indeed, in earlier versions of the same RFSO, the Crown had specified “base rates” for different categories of personnel, to which bidders would add their mark-ups and quote an all-inclusive, “fully-burdened rate” (see Affidavit of Jerry Johnston sworn March 10, 2014, Appeal Book, Vol. 7, Tab 18 at p. 1415, para. 19). Departing from that practice, the 2009 RFSO did not include the base rates for each labour category, thus requiring bidders to develop competitive pricing without any guidance as to what would constitute an acceptable level of compensation for each category of research contractors. Calian argued that the risk of harm arising from the disclosure of the billing rates found in its 2009 bid was significantly increased, as it had to rely on its extensive and proprietary skills in managing personnel services to develop competitive pricing. Calian further submitted that for the purpose of paragraph 20(1)(c) of the Act, disclosure of its rates would result in substantial and important material financial loss.
[9] As for the Disclosure Clause, Calian responded that it did not apply to its personnel rates, mainly for three reasons. First, it argued that the clause had been developed to only apply to material related values (i.e. base rates developed by the Crown for each labour category, as found in previous standing offers), and not to the fully-burdened rates included in the 2009 bid. Second, Calian put forward the past treatment of the Disclosure Clause by DND, the previous contracting authority for the RMC research assistance bid, as evidence of the clause’s narrow meaning. It noted that, based on this past experience with the federal procurement process, it understood the Disclosure Clause as constituting consent to disclosure to other government departments, and not as consent to disclosure to the public. Third, and given the modalities of this specific RFSO (i.e. awarding the successful bid to only one supplier, compared to the more common situation where there are multiple vendors), Calian submitted that disclosure in this specific context would cause irreparable harm from a competitive standpoint, thus heightening the need for a restrictive reading of the clause.
[10] On January 3, 2014, PWGSC communicated its decision under section 28 of the Act to redact only those portions of the 2010-14 Standing Offer referencing (1) Calian’s employee names, titles, extensions, cell phone numbers and/or personal phones/fax numbers; (2) Calian’s procurement business number; and (3) Calian’s GST registration number. PWGSC rejected Calian’s request to redact the personnel rates, stating that “[…] as the disclosure of information clause has already been incorporated in the Standing Offer, the unit prices and rates cannot be considered to be confidential third party information that would prejudice your competitive position and we must therefore release them” (see Section 28 Decision, Exhibit “H” to the Affidavit of Jerry Johnston sworn March 10, 2014, Appeal Book, Vol. 7, Tab 18 at p. 1565). While the reasons are not explicit in this respect, it can be inferred that PWGSC considered the Disclosure Clause as an outright bar or waiver from claiming confidentiality under subsection 20(1) of the Act.
[11] As a result of PWGSC’s section 28 decision, Calian filed the first judicial review application underlying the current appeals pursuant to section 44 of the Act. During the course of this application, it became clear that additional records responsive to the request had been identified but not included in the original third party consultation. PWGSC therefore conducted further consultations with Calian with respect to these additional records, which ultimately led to the same result regarding disclosure of the personnel rates. Calian applied for judicial review of that second decision, and the two applications were consolidated and ordered to be heard together by order dated September 18, 2014. A decision was made by Justice Brown of the Federal Court (the Judge) on December 18, 2015 (reported as Calian Ltd. v. Canada (Attorney General), 2015 FC 1392).
II. The Federal Court’s decision [12] The Judge first identified the applicable standard of review as being that of correctness. Relying on Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 53, [2012] 1 S.C.R. 23 [Merck], he found that there are no discretionary decisions under subsection 20(1) of the Act, and that the application of the exemptions to the requested records must be reviewed without any deference to the decision-maker.
[13] The Judge then made a number of factual findings that bore on his interpretation of the relevant statutory provisions. He started off by noting that the personnel rates were much more “business-sensitive” and “confidential” in nature than those included in previous RFSOs, given the absence of “base rates” for each labour category in the 2009 RFSO (see Reasons at para. 47). This meant that bidders had to develop pricing from the ground up. He also noted that pricing was the most important factor weighing in the decision to award the 2009 RFSO, constituting 60% of the assessment (Reasons at para. 41).
[14] As for the history of the parties’ dealings, the Judge found that it was both of the parties’ intention to treat and consider the personnel rates as exempt. His conclusion on this point rested primarily on the treatment of an access request filed in 2009 in relation to one of Calian’s previous successful bids (the 2003-09 Standing Offer) which resulted in an exclusion from disclosure of the “fully-burdened” unit prices pursuant to paragraph 20(1)(c) and subsection 24(1) of the Act. In comparing the 2003-09 Standing Offer with the one currently at issue, the Judge noted that both involved the same government contracting party, namely, the Crown (despite the change in contract administration from DND to PWGSC); both covered the same subject matter, being the supply of specialized consultancy services to RMC; and both contained a similarly worded disclosure clause. He thus found no basis upon which to treat the 2013 Access Request differently than the one submitted in 2009. If anything, he noted that there were more important confidentiality concerns regarding the information contained in the 2010-14 Standing Offer (given the nature of the personnel rates and the structure of the contract now being silent on the “base rates” for each labour category) which gave rise to a heightened expectation that disclosure would reasonably result in material financial loss and/or prejudice to Calian’s competitive edge (Reasons at paras. 49-54).
[15] In light of the above findings, the Judge concluded that disclosure of the personnel rates would result in prejudice or harm to Calian’s competitive position under paragraph 20(1)(c) of the Act. He determined that such disclosure would allow competitors to “spring board” off the skills and experience of Calian, effectively harming its ability to submit a winning bid, and that the risk of undermining Calian’s competitive advantage was more than a mere possibility (Reasons at para. 61). The Judge based this finding on the fact that, given the tendering cycle in the provision of personnel services to RMC, Calian had every reason to believe that another bidding process would soon be launched (Reasons at para. 59).
[16] On the issue of the impact of the Disclosure Clause, the Judge found that it was but one factor to be taken into consideration when determining what “could reasonably be expected” under paragraph 20(1)(c) of the Act, in conjunction with, for instance, the history of the dealings between the parties. He accepted the evidence of Calian to the effect that its understanding of the clause was shaped by years of experience and discussions with several governmental entities, and that its inclusion was meant to allow the disclosure of rates between various government departments. As the Crown did not file any evidence on its understanding of the Disclosure Clause, the Judge found that the parties reasonably intended the clause to permit disclosure of the personnel rates only to other governmental departments. He thus exempted disclosure of the personnel rates in accordance with paragraph 20(1)(c) of the Act (Reasons at paras. 65-78).
[17] The Judge also found that the personnel rates were exempt from disclosure under paragraph 20(1)(d) of the Act, determining that such information could reasonably be expected to interfere with contractual or other negotiations of a third party. Relying on the test for interference set out in Burnbrae Farms Limited v. Canada (Canadian Food Inspection Agency), 2014 FC 957 [Burnbrae], according to which it must be more than speculative and may not merely consist in the heightening of competition, he concluded that the risk of Calian’s customers seeking to improve their negotiating position following the disclosure of its rates was probable. He also determined that this would put pressure on Calian to pay its consultants at higher rates. For the same reasons outlined above, the Judge did not see in the Disclosure Clause an outright bar to claiming the exemption under paragraph 20(1)(d). Again, he determined that the Disclosure Clause had to be read together with all of the other relevant factors in order to assess whether exemption from disclosure would be warranted in the circumstances. He thus exempted the personnel rates on the additional ground of paragraph 20(1)(d) of the Act (Reasons at paras. 79-88).
[18] Finally, the Judge also found that the decisions should be set aside, independently of his findings related to paragraphs 20(1)(c) and 20(1)(d), on the basis that PWGSC failed to consider its discretion to refuse to disclose otherwise exempt information under subsection 20(5) of the Act. Having found that PWGSC missed a critical step in its reasons that could not be cured, the Judge decided to quash the decisions on this additional basis (Reasons at paras. 89-101). On the other hand, the Judge determined that neither paragraph 20(1)(b), nor section 18 of the Act, could be relied upon by Calian to support its request for redaction (Reasons at paras. 102-107).
III. Issues [19] The Attorney General of Canada (File No. A-20-16) and the Information Commissioner of Canada (File No. A-31-16) (the Commissioner) both appealed the decision of the Judge. By Order dated April 6, 2016, the files were consolidated and ordered to be heard together.
[20] The issues in both appeals overlap considerably, and different formulations are used by the parties to address similar questions. In essence, the issues to be decided by this Court boil down to the following questions:
Are the personnel rates exempt from disclosure under paragraphs 20(1)(b), 20(1)(c), and/or 20(1)(d) of the Act? What is the proper interpretation of the Disclosure Clause? How does the Disclosure Clause interact with the scheme of the Act?
[21] As will soon become apparent, I am of the view that both PWGSC and the Federal Court erred in their reading of the Disclosure Clause. PWGSC erred in finding that it constitutes waiver to treat the information as exempt and the Federal Court erred in finding that the Disclosure Clause provided a limited consent. In my view, the proper course of action would have been to first determine whether the information sought to be protected would otherwise be exempt under the Act. Such will be the question I answer under issue A. On a proper interpretation of the Disclosure Clause as consent to disclosure to the public of otherwise exempt information, which I will canvass under issue B, it must be decided whether there are any circumstances militating against disclosure, notwithstanding consent to such a clause. This aspect of my analysis, which will be dealt with under issue C, pertains to the discretion given to the head of the government institution to refuse to disclose information which would be treated as exempt had it not been for the presence of the Disclosure Clause. My findings on this front will bear on the appropriate remedy to be granted in the current appeals.
IV. The relevant legislative provisions [22] The purpose of the Act is to extend the right of access to information under government control, subject only to limited and specific exceptions set out in the Act (s. 2(1)). As stated by Justice La Forest in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 61, 148 D.L.R. (4th) 385 (dissenting but not on this point), “[t]he overarching purpose of access to information legislation […] is to facilitate democracy”, first by ensuring “that citizens have the information required to participate meaningfully in the democratic process”, and second “that politicians and bureaucrats remain accountable to the citizenry”. Consistent with that goal, the head of a government institution must disclose, where a request is made for access to a record, any portion of that record that does not contain information that warrants exemption and that can reasonably be severed from information that calls for being withheld (s. 25 of the Act).
[23] One of the exceptions to the disclosure principle relates to third party information. The relevant excerpts of subsection 20(1) provide as follows:
20 (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act 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 :
…
…
(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;
(b.1) information that is supplied in confidence to a government institution by a third party for the preparation, maintenance, testing or implementation by the government institution of emergency management plans within the meaning of section 2 of the Emergency Management Act and that concerns the vulnerability of the third party’s buildings or other structures, its networks or systems, including its computer or communications networks or systems, or the methods used to protect any of those buildings, structures, networks or systems;
b.1) des renseignements qui, d’une part, sont fournis à titre confidentiel à une institution fédérale par un tiers en vue de l’élaboration, de la mise à jour, de la mise à l’essai ou de la mise en oeuvre par celle-ci de plans de gestion des urgences au sens de l’article 2 de la Loi sur la gestion des urgences et, d’autre part, portent sur la vulnérabilité des bâtiments ou autres ouvrages de ce tiers, ou de ses réseaux ou systèmes, y compris ses réseaux ou systèmes informatiques ou de communication, ou sur les méthodes employées pour leur protection;
(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.
[24] Even when such exemptions apply, the third party may consent to the disclosure, and where such consent is given, the head of the government institution possesses discretion as to disclosure:
(5) The head of a government institution may disclose any record that contains information described in subsection (1) with the consent of the third party to whom the information relates.
(5) Le responsable d’une institution fédérale peut communiquer tout document contenant les renseignements visés au paragraphe (1) si le tiers que les renseignements concernent y consent.
[25] The Act also requires that notice be given to third parties if the head of a government institution intends to disclose a record that the head has reason to believe might contain information described in paragraphs 20(1)(b), 20(1)(b.1), 20(1)(c) or 20(1)(d) (see subs. 27(1) of the Act). The third party to whom such a notice is given may then make representations, within 20 days after the notice is given, as to why the record or parts thereof should not be disclosed (subs. 28(1)). If the head of the government institution nevertheless decides to disclose the record or part thereof, the third party may apply to the Federal Court for review of the matter (subs. 44(1)).
V. The standard of review [26] The parties are all in agreement that appellate review in the context of the Act must be conducted in accordance with the principles set out in Housen v. Nikolaisen, 2002 SCC 33, 2002 2 S.C.R. 235 [Housen]. This is consistent with the position taken in Merck, where the Supreme Court stated that “[t]he decision of the judge conducting a review under the Act, which will often have a significant factual component, is subject to appellate review in accordance with the principles set out in Housen [...]” (at para. 54). Accordingly, the focus of this Court’s review is on the decision of the Federal Court, and the standard is that of correctness on questions of law, and of palpable and overriding error on findings of fact and of mixed fact and law. Where a question of mixed fact and law contains an extricable legal question, the standard of review will also be that of correctness.
[27] The impact, if any, of the subsequent decision rendered by the Supreme Court in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559, is better left for another day. While this Court is obviously not bound by the parties’ agreement as to the applicable standard of review, the argument should nevertheless be fully canvassed before setting aside an established line of cases in the absence of clear indication from the highest court. Not only have such discussions not taken place here, but it would in any event be of an academic nature in light of my conclusion that the Judge’s reasons with respect to the first question withstand scrutiny on the most exacting standard of review.
[28] Indeed, I am of the view that the Judge did not commit a reviewable error in determining that the decision to disclose or not to disclose must be judicially reviewed on the correctness standard. As the Supreme Court properly noted in Merck, there is no discretion involved when the institutional head of a government institution determines whether a record can be disclosed or not (at para. 53). Pursuant to the opening words of subsection 20(1) of the Act, a record “shall” not be disclosed if it contains the type of information described in paragraphs (a) to (d). As a result, the reviewing court must examine whether the exemptions to the general principle of disclosure have been applied correctly to the requested records:
[…] It follows that when a third party […] 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 […]
Merck at para. 53
[29] The Judge was therefore called upon to determine whether Calian’s personnel rates were correctly found to fall outside the exemptions from disclosure under the Act. This is not to say that there is no factual component in such an assessment. As recognized by the Supreme Court in Merck, the relevant legal principles cannot be applied in a contextual vacuum and must always be considered in light of the evidence disclosed in each case (at para. 150). With this caveat in mind, I shall therefore proceed to determine whether the Judge erred in respect of the first question identified above.
[30] As for the second and third questions, being ones of contractual interpretation and of the interplay between the clause and the Act, the applicable standard of review is that of correctness. The Supreme Court of Canada recently held in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 50, [2014] 2 S.C.R. 633 [Sattva] that questions of contractual interpretation, being so intricately connected to the facts of any given case, will generally be construed as questions of mixed fact and law. Absent a showing of an “extricable question of law”, such a characterization considerably limits the scope of appellate intervention, and is a clear call for deference on these types of questions. In the administrative context, the reasonableness standard of review will thus generally be said to apply to such questions. In the appellate context, it will be that of overriding and palpable error.
[31] Appellate courts have wrestled, in the period following the Sattva decision, with identifying the circumstances under which the interpretation of a contract will properly be said to involve an “extricable question of law”, thus attracting a more scrutinized form of review by way of the correctness standard. One line of recent cases has held that a lower threshold of judicial intervention should apply to standard form contracts (see for instance MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663 [MacDonald]; True Construction Limited v. Kamloops (City), 2016 BCCA 173, 386 B.C.A.C. 82; Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, 2015 ABCA 121, 386 D.L.R. (4th) 482 [Ledcor, ABCA]). The Supreme Court recently endorsed this approach (see Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23 [Ledcor, SCC], reversing Ledcor, ABCA (though affirming, in part, the Court of Appeal’s analytical framework)).
[32] The Supreme Court came to that conclusion for two reasons. First, it held that the factual matrix is much less relevant to the interpretation of a standard form contract than it generally is for contractual interpretation. As the Ontario Court of Appeal put it in MacDonald, at paragraph 33:
The importance of the factual matrix is far less significant, if at all, in the context of a standard form contract or contract of adhesion where the parties do not negotiate terms and the contract is put to the receiving party as a take-it-or-leave-it proposition. Any search for the intention of the parties in the surrounding circumstances of these contracts “is merely a legal fiction”. [references omitted]
[33] Second, unlike the majority of contractual interpretation cases where the decision has no impact beyond the interests of the parties to the dispute, a court’s interpretation of a specialized standard form contract will have a wide impact with significant precedential value. Consistency is essential where numerous parties will be impacted by shifting interpretations of a particular contract clause:
[…] It would be undesirable for courts to interpret identical or very similar standard form provisions inconsistently, without good reason. The mandate of appellate courts – “ensuring the consistency of the law” (Sattva, at para 51) – is advanced by permitting appellate courts to review the interpretation of standard form contracts for correctness.
Ledcor, SCC at para. 39
[34] In the case at bar, the terms of the Disclosure Clause, and indeed of the procurement contract as a whole, were clearly not negotiated by the parties (Affidavit of Jerry Johnston sworn March 10, 2014, Appeal Book, Vol. 7, Tab 18 at p. 1419, para. 33). Calian does not dispute that the General Conditions were in fact a standard form contract.
[35] The Attorney General further argues that this Court’s interpretation of the Disclosure Clause will have an impact beyond the interests of the parties to the current dispute, as the General Conditions are standard form terms which apply to all standing offers for goods and services and have been used for more than 10 years. In fact, it appears that the clause at issue in the present case has been the subject of repeated adjudication (see Stenotran Services v. Canada (Minister of Public Works and Government Services) (2000), 186 F.T.R. 134 (T.D.) [Stenotran]; Top Aces Consulting Inc. v. Canada (National Defence), 2011 FC 641, 391 F.T.R. 14 [Top Aces], affirmed 2012 FCA 75, 430 N.R. 260). Counsel for the Attorney General also notified this Court that a stay has been granted in another matter pending the resolution of this case, given that it bears on similar legal issues as the ones involved in the current appeals (The Typhon Group Ltd. et al. v. Attorney General of Canada, File No. T-1246-15, Order of Prothonotary Aalto issued December 14, 2015).
[36] Counsel for Calian, however, submits that there is no precedential value in interpreting the meaning of the Disclosure Clause, as this question is but one among many other relevant factors in determining whether a record is exempt from disclosure under the Act. Calian further opines that the present case involves a meaningful factual matrix that is specific to the parties and that sheds particular light on how the contract should be interpreted. Counsel relies for that proposition on the Supreme Court’s cautioning in Ledcor, SCC that the interpretation of a standard form contract may call for deferential review on appeal in some circumstances, notably when “the factual matrix of a standard form contract that is specific to the particular parties assists in the interpretation” (at para. 48).
[37] Calian’s first argument is without merit. The interplay between the Disclosure Clause and the various exemptions to disclosure found in subsection 20(1) of the Act, and whether the Disclosure Clause operates as a total bar to the exemptions or must be construed as but one factor in assessing the application of paragraphs 20(1)(b), 20(1)(c) and (d), is a pure question of law. Moreover, these questions are separate and distinct from the contractual interpretation issue. Therefore, no deference is owed to the Judge.
[38] Calian’s second argument is at first sight more appealing but must nevertheless similarly be rejected. The subjective intention of one party to a contract cannot be relied upon to interpret the meaning of a contract, particularly where a standard form contract is involved as this would be contrary to the principles of contractual interpretation and antithetical to the need for certainty, consistency and predictability in the interpretation of clauses that are widely used in a particular field of activity. This is particularly true in a case like the present one, where a number of reasons could explain why a different government department decided not to disclose the information requested in a previous access to information request. At the end of the day, to quote from Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 37, 144 D.L.R. (4th) 1 (relied upon by the majority in Ledcor, SCC at para. 48), it seems to me that the dispute is first and foremost over a “general proposition”, and not about “a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future”. Accordingly, I am of the view that the interpretation of the Disclosure Clause and how it interacts with the scheme of the Act involve extricable questions of law, and thus the standard of review applicable to the second and third issues identified above must be that of correctness, pursuant to the Housen appellate standard of review.
VI. Analysis A. Are the personnel rates exempt from disclosure under paragraphs 20(1)(b), 20(1)(c), and/or 20(1)(d) of the Act? [39] The general rule of disclosure enshrined in the Act is subject to a number of exemptions. Of relevance to this appeal are various exemptions relating to third party confidential commercial information set out in subsection 20(1). Of particular relevance are paragraphs 20(1)(b), 20(1)(c) and 20(1)(d), which have been reproduced at paragraph 23 of these reasons.
[40] There is no dispute between the parties as to the legal principles underlying the application of paragraph 20(1)(c). Indeed, the appellant Commissioner acknowledges that the Judge correctly cited the legal test for determining the applicability of paragraph 20(1)(c). Relying on Merck, the Judge set out the following principles:
The onus is on the applicant to establish its entitlement to the exemption, which depends on the nature of the material and the particular context of the case; A third party claiming an exemption under paragraph 20(1)(c) must show that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, based on evidence provided by the party opposing the disclosure, but need not prove on a balance of probabilities that disclosure will in fact result in such harm; The types of harm covered by paragraph 20(1)(c) are disjunctive (financial loss to the third party or gain to its competitors, on the one hand, and competitive prejudice on the other).
Reasons at para. 38
[41] Counsel for the Commissioner submitted that the Judge failed to properly apply these principles, and erred in finding that Calian’s evidence was sufficient to establish a reasonable expectation of probable harm under paragraph 20(1)(c). Relying on a number of cases from this Court and from the Federal Court, counsel argued that the evidentiary burden required to claim the exemption provided by paragraph 20(1)(c) cannot be satisfied by affidavit evidence that simply affirms that disclosure would cause the type of harm described in that provision (Merck at para. 227, affirming 2009 FCA 166 at paras. 84-86, 400 N.R. 1, citing SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113 at para. 43, 49 A.C.W.S. (3d) 211 (T.D.). See also Brainhunter (Ottawa) Inc. v. Canada (Attorney General), 2009 FC 1172 at para. 32, 182 A.C.W.S. (3d) 244; Toronto Sun Wah Trading Inc. v. Canada (Attorney General), 2007 FC 1091 at para. 27, 62 C.P.R. (4th) 337; AstraZeneca Inc. v. Canada (Health), 2005 FC 1451 at para. 90, [2005] F.C.J. No. 1775, affirmed 2006 FCA 241, 353 N.R. 84; Wyeth-Ayerst Canada Inc. v. Canada (Attorney General), 2003 FCA 257 at para. 20, 305 N.R. 317; Brookfield LePage Johnson Controls Facility Management Services v. Canada (Minister of Public Works and Government Services), 2003 F.C.T. 254 at para. 21, 121 A.C.W.S. (3d) 397, affirmed 2004 FCA 214 at para. 18, 322 N.R. 388; Viandes du Breton Inc. v. Canada (Department of Agriculture and Agri-food) (2000), 198 F.T.R. 233 at para. 9, 107 A.C.W.S. (3d) 3 (T.D.); Canadian Broadcasting Corp. v. National Capital Commission (1998), 147 F.T.R. 264 at paras. 25-27, [1998] F.C.J. No. 676 (T.D.) [Canadian Broadcasting Corp.]).
[42] In my view, the Judge correctly applied the Merck framework and committed no reviewable error in concluding, on the basis of the evidence that was before him, that releasing Calian’s detailed personnel rates would give its competitors a “free ride” and “tilt the level playing field” against Calian (Reasons at para. 58). Contrary to the position taken by the Commissioner, the Judge did not merely rely on bald and unsupported assertions found in the affidavit of Calian’s Vice President of Operations (Mr. Jerry Johnston). He came to the conclusion, based on his own assessment, that the personnel rates individually and in the aggregate were the most significant factor in the success of Calian’s bid and were crucial to Calian’s competitive position (Reasons at para. 41). He also accepted Mr. Johnston’s evidence that the development of the personnel rates was effected through the confidential and proprietary salary and other information that Calian directly obtained from, or negotiated with, the numerous potential providers of the required specialist labour services, in addition to its own business analyses of overhead, other costs, and profit (Reasons at para. 45). While the absence of cross-examination and of contradictory evidence is not conclusive one way or another, the Judge could certainly take these factors into consideration to determine whether Calian had met its burden of establishing a reasonable expectation of probable harm.
[43] That being said, the Judge erred in taking the history of past dealings between the parties as a factor to be considered for the purposes of assessing whether the information sought to be disclosed could reasonably be expected to result in material financial loss or gain to Calian or to prejudice its competitive position. In that respect, the Judge wrote (at para. 51):
While the Respondents [appellants before this Court] disagree, in my view, the inference arising from the parties’ past dealings and course of conduct is compelling in terms of what is asked for under paragraph 20(1)(c) of the Act. In 2009, the Crown recognized that disclosure of the fully burdened unit prices could reasonably be expected to result in material financial loss to the Applicant, could reasonably be expected to result in material financial gain to a competitor, or could reasonably be expected to prejudice the Applicant’s competitive position. While we know th