Export Development Canada v. Canada (Information Commissioner)

Export Development Canada v. Canada (Information Commissioner)
Court (s) Database
Federal Court Decisions
Date
2023-11-21
Neutral citation
2023 FC 1538
File numbers
T-1793-22
Decision Content
Date: 20231121
Docket: T-1793-22
Citation: 2023 FC 1538
Ottawa, Ontario, November 21, 2023
PRESENT: The Honourable Madam Justice Tsimberis
BETWEEN:
EXPORT DEVELOPMENT CANADA
Applicant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview A. Nature of Matter [1] Export Development Canada (EDC) brings this application under section 41 of the Access to Information Act, RSC 1985, c A-1 [ATIA] for an order setting aside the Information Commissioner of Canada’s [“Commissioner”] order providing for the disclosure of the redacted information relating to the policy numbers and policies’ maximum liability amounts. In so doing, the Commissioner found the redacted information is not exempt from disclosure pursuant to subsection 24.3(1) of the Export Development Act, RSC 1985, c E-20 [EDA] and/or sections 18.1 and 24 of the ATIA.
[2] The issue in this application is whether EDC must/may refuse to disclose information pursuant to subsection 24(1) of the ATIA (that incorporates by reference subsection 24.3(1) of the EDA) or pursuant to subsection 18.1(1)(b) of the ATIA.
[3] This application hinges on the statutory interpretation of the words “obtained by” contained in subsection 24.3(1) of the EDA (as incorporated by reference through section 24(1) of the ATIA) and the words “belongs to” contained in subsection 18.1(1)(b) of the ATIA in order to determine whether the exemptions apply. This application is the first time that subsection 24.3(1) of the EDA has been considered by the Federal Court in the context of a section 41 application, and the first time subsection 18.1 of the ATIA will be interpreted by any court. This application will address how section 18.1 of the ATIA is to be applied to particular customer account information.
B. Factual Background [4] EDC is a Crown Corporation established by the EDA at section 3. EDC has mainly three different purposes according to subsection 10(1) of the EDA:
a) supporting and developing, directly or indirectly, domestic business, at the request of the Minister and the Minister of Finance for a period specified by those Ministers;
b) supporting and developing, directly or indirectly, Canada’s export trade and Canadian capacity to engage in that trade and to respond to international business opportunities; and
c) providing, directly or indirectly, development financing and other forms of development support in a manner that is consistent with Canada’s international development priorities.
[5] To cite EDC’s Director, Privacy and Information Risk, Ms. Laura W. Davison, “EDC carries out this mandate by providing investment and credit insurance, export finance, lease financing, loan and bond guarantees, amongst other services” (Davison’s Affidavit at para 8).
[6] EDC has an obligation to disclose certain information as per the Financial Administration Act, RSC 1985, c F-11 and the ATIA. As such, EDC has a Transparency & Disclosure Policy [Policy] (Davison’s Affidavit at Exhibit D).
[7] The parties generally agreed that the facts of this application are not in dispute and particularly on the following statements of facts (paras 10-15 of EDC’s Memorandum of Fact and Law).
[8] On July 9, 2019, EDC received a request for information pursuant to the ATIA from the Requestor, dated July 3, 2019. The Request stated the following:
Please provide a summary of any financial assistance over $50,000 provided by EDC from 2009 to 2019 to any Canadian company operating in Honduras. In particular name each company and provide the type and amount of financial assistance to that company. For loans, please indicate when repayment was due, and when repayment was made.
[9] The responsive records for the Request are identified at Exhibit A of the Affidavit of Marc Deschênes. The record at issue consists of a chart setting out the policy types by acronym, the policy number, the customer name and the maximum liability amount associated with EDC insurance policies of $50,000 (plus) in Honduras between 2009-2019 and is organised in four columns.
(a)The first column, entitled “Program”, represents the overarching insurance program to which the policy in question belongs;
(b)The second column, entitled “Policy”, represents the specific policy type and number;
(c)The third column, entitled “Exporter”, provides the name of the EDC customer; and
(d)The fourth column, entitled “Max liability CAD”, provides the maximum liability amount, in Canadian dollars, for each policy (collectively, this information is defined as the Responsive Records).
[10] On October 7, 2019, EDC wrote to the Requestor to formally respond to the Request. The information collected had been severed with EDC noting that:
[T]he severed information has been withheld under the following sections(s) of the [ATIA]: 18.1(1)(b) Export Development Canada; 24(1) statutory prohibitions,
[11] As a result of the EDC’s response to the Request, the Requestor filed a complaint with the OIC, which resulted in an investigation pursuant to the ATIA. On June 22, 2022, the OIC served an initial report pursuant to subsection 37(1)(a) and (b) of the ATIA (the Initial Report), and which included an order the Commissioner intended to issue with her Final Report. On July 20, 2022, Mairead Lavery, President and Chief Executive Officer of EDC wrote to the OIC, providing a formal response to the June 22, 2022 letter. In its July 20, 2022 letter, the EDC advised it would take the following actions, as required by subsection 37(1)(c):
EDC will disclose the policy types (acronyms) currently withheld under paragraph 18.1(1) and/or subsection 24(1).
EDC will not disclose the policy numbers, and maximum liability amounts, currently withheld under paragraph 18.1(1) and/or subsection 24(1), and will instead seek review by the Federal Court of the Information Commissioner’s order in relation to this information. [emphasis original]
[12] On July 22, 2022, the Commissioner provided her final report, pursuant to subsection 37(2) of the ATIA (the Final Report). The Final Report provided information about the complaint and investigation, the Commissioner’s findings, as well as an order (the Order) for the President of EDC to:
Disclose policy types (acronyms), policy numbers, and maximum liability amounts, currently withheld under paragraph 18.1(1) and/or subsection 24(1).
[13] As per the Final Report, the Commissioner acknowledged that including the identities of EDC’s customers within the information to be released would be a violation of the EDA. The only remaining records at issue in this application are the policy numbers and maximum liability amounts of the policies in question that have been redacted (the redacted information). The Commissioner held:
[31] On its face, policy types, policy numbers and maximum liability amounts is not information obtained by EDC in relation to its customers. Instead, this is information created by EDC. With regard to the latter, while recognizing that maximum liability amounts may be based in part on information obtained by EDC, the amounts ultimately reflect EDC decisions based on internal analysis of the information before it and there is no indication that these amounts reflect or reveal any information directly obtained by EDC.
II. Issues [14] This application raises the following issues:
What is the appropriate standard of review and who bears the burden of proof?
Whether EDC has shown that the disclosure of the redacted information is restricted by subsection 24(1) of the ATIA and subsection 24.3(1) of the EDA?
Whether EDC has shown that it was authorized to use its discretion not to disclose the redacted information pursuant to subsection 18.1(1)(b) of the ATIA?
If the redacted information meets the requirement of subsection 18.1(1)(b) of the ATIA, whether the head of EDC reasonably exercised its discretion in deciding to refuse to disclose the redacted information?
III. Overview of the ATIA [15] Prior to addressing the issues raised, and as previously done by my colleague, the Honourable Mr. Justice Gleeson, in Canada (Information Commissioner) v Toronto Port Authority, 2016 FC 683, it is helpful to provide an overview of the ATIA’s purpose, the jurisprudence interpreting the right to access records, and the role of exemptions.
(i) Purpose of the ATIA [16] At section 2(1) of the ATIA, the legislator set out that “[t]he 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.”
[17] In Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 (CanLII), [2012] 1 SCR 23 at paras 21-22 [Merck], Justice Cromwell for the majority of the Supreme Court of Canada set out their Court’s jurisprudence on the purpose of the ATIA:
[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 CanLII 358 (SCC), [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.
[18] The Court adopts a broad interpretation of the right of access under subsection 4(1) of the ATIA because it “may be considered quasi-constitutional in nature” (Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 at para 40). The Supreme Court of Canada has held that, while paragraph 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to information, “[a]ccess is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government” (Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 at para 30 [Criminal Lawyers’ Association]).
(ii) Right of Access and Exemptions [19] Subsection 4(1) of the ATIA provides that:
Right to access to records
4 (1) Subject to this Part, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
[20] The ATIA, specifically subsection 4(1), provides a broad “right of timely access” (Statham v Canadian Broadcasting Corp, 2010 FCA 315 at para 1 [Statham]) to any record under the control of a government institution, subject to “a number of exemptions from the general rule of disclosure” (Merck at para 96). Hence “[t]he interpretation of a statutory exception in the Act must respect the purpose of the Act as stated in subsection 2(1) while at the same time give effect to the purpose of the exception. The right of the public to know the workings of government is not absolute. It must yield to the values sought to be protected by the statutory exceptions” (3430901 Canada Inc v Canada (Minister of Industry), 1999 CanLII 9066 (FC), [1999] FCJ No 1859 at para 44 [Telezone FC]).
[21] Yet Justice Heald of the Federal Court of Appeal determined that, “[w]hen it is remembered that subs. 4(1) of the Act confers upon every Canadian citizen and permanent resident of Canada a general right to access and that the exemptions to that general rule must be limited and specific, I think it clear that Parliament intended the exemptions to be interpreted strictly” (Rubin v Canada (Canada Mortgage and Housing Corp), 1988 CanLII 5656 (FCA), [1988] FCJ No 610 at para 25 [Rubin]). Those exemptions exist from sections 13 to 24 of the ATIA, and as determined by the Supreme Court of Canada in Merck at paragraph 97:
[97] […] They may be categorized according to whether they are class- or harm-based exemptions and according to whether they are mandatory or discretionary. Where there is a class exemption, the exemption applies to all records determined to fall into that class of record. However, a harm-based exemption applies only if the specified harm or risk of harm is present. Some exemptions are mandatory: once the record has been shown to fall within the exemption, the head of the institution has no discretion and must refuse to disclose it, subject only to any applicable override, such as the one found in s. 20(6), a topic not in issue here. Other exemptions are discretionary: once there has been an initial determination that the record falls within the statutory exemption, the head has discretion as to whether or not disclosure will be refused or granted.
[22] The exemption for statutory prohibitions against information disclosure in subsection 24(1) of the ATIA is mandatory, in that “[t]he head of a government institution shall refuse to disclose any record (…) that contains information that disclosure of which is restricted by or pursuant to a provision set out in Schedule II” (Merck at paras 24, 98).
[23] By contrast, the exemptions under subsection 18.1(1) of the ATIA are discretionary:
Economic interests of certain government institutions
18.1 (1) The head of a government institution may refuse to disclose a record requested under this Part that contains trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential by,
(a) the Canada Post Corporation;
(b) Export Development Canada;
(c) the Public Sector Pension Investment Board; or
(d) VIA Rail Canada Inc.
[24] In cases involving application of the ATIA, it is recognized that the ATIA sets out a substantive right of access to requesters, who are to be given access to any record under the control of a government institution upon request, subject only to limited and specific exceptions set out in the ATIA.
[25] Requested information should only be withheld in limited and specific circumstances, and “where there are two interpretations open to the Court, it must, given Parliament’s stated intention, choose the one that infringes on the public’s right to access the least. It is only in this way that the purpose of the Act can be achieved” (Rubin at para 23).
IV. Analysis A. What is the appropriate standard of review and who bears the burden of proof? [26] Section 44.1 of the ATIA provides that a section 41 application stemming from the ATIA requires a de novo determination.
[27] As such, a section 41 application such as this one before the Federal Court is not a judicial review of an administrative decision, but rather is “to be heard as a new proceeding.” While doing so, the Court shall take the role of a trial court to undertake a new and independent review of the entire matter, which enable the parties to submit new evidence, and the Court may hear new arguments, make her own findings, and the judge may order any remedies (see Preventous Collaborative Health v Canada (Health), 2020 CanLII 103848 (FC) at para 21; Canada (Health) v Preventous Collaborative Health, 2022 FCA 153 at para 14; Merck at paras 250-251).
[28] Subsection 48(1) of the ATIA places the burden of proof on the government institution to establish that it is authorised to refuse to disclose the redacted information. Thus, EDC bears the onus of establishing that the redacted information:
Belongs to and has consistently been treated as confidential by EDC under subsection 18.1(1) of the ATIA; or
It was obtained by EDC in relation to its customers under section 24.3 of the EDA, thereby restricting its disclosure, which in turn authorizes EDC to refuse disclosure under subsection 24(1) of the ATIA.
[29] This Court is to determine whether EDC is restricted from disclosing the record under subsection 24(1) of the ATIA or authorised to refuse to disclose the information under subsection 18.1(1)(b) of the ATIA. And, if it is determined that EDC is authorised to refuse to disclose the information under subsection 18.1(1)(b), EDC must further establish that its discretionary decision to do so was reasonable (Husky Oil Operations Limited v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 10 at para 62).
B. Whether EDC has shown that the disclosure of the redacted information is restricted by subsection 24(1) of the ATIA and subsection 24.3(1) of the EDA? [30] Subsection 24(1) of the ATIA is a mandatory exemption requiring government institutions to refuse to release information, the disclosure of which is restricted by a provision set out in Schedule II of the ATIA.
[31] Schedule II of the ATIA incorporates by reference section 24.3 of the EDA, which reads as follows in English and French:
Privileged information
24.3 (1) Subject to subsection (2), all information obtained by the Corporation in relation to its customers is privileged and a director, officer, employee or agent of, or adviser or consultant to, the Corporation must not knowingly communicate, disclose or make available the information, or permit it to be communicated, disclosed or made available. [...]
Renseignements protégés
24.3 (1) Sous réserve du paragraphe (2), les renseignements recueillis par la Société sur ses clients sont confidentiels et aucun administrateur, dirigeant, mandataire, conseiller, expert ou employé de celle-ci ne peut sciemment les communiquer ou les laisser communiquer ou y donner accès ou permettre à quiconque d’y donner accès. [...]
[32] As mentioned earlier, this issue hinges on the statutory interpretation of subsection 24.3(1) of the EDA and particularly the words “obtained by”. EDC’s interpretation of subsection 24.3(1) is that the words “all information obtained by the Corporation in relation to its customers” is broad enough to include any information relating to the customer acquired through the keeping of its account with EDC, including the redacted information.
[33] After considering the case law and for many of the reasons raised by the Commissioner in Section C of its Memorandum of Fact and Law, the Court agrees with the Commissioner’s interpretation of subsection 24.3(1) of the EDA and conclusion that EDC incorrectly applied this exemption to justify withholding the redacted information. The Court will summarize and deal with each of these reasons, in turn, below, and for efficiency has borrowed some of the language from the Commissioner’s Memorandum of Fact and Law.
[34] The applicability of subsection 24.3(1) of the EDA is dependent on whether EDC has established that the redacted policy numbers and maximum insurance amounts is information “obtained by [EDC] in relation to its customers”, notwithstanding EDC’s evidence that it created the information.
(1) The redacted information at issue was created by EDC [35] EDC’s evidence is to the effect that it “assigns and issues policy numbers to its clients. Clients have no rights or ability to change or alter their policy numbers. The policy numbers are used by EDC as part of its internal financial management system and remains under EDC’s possession or control.”
[36] As it relates to the maximum liability figures, EDC states that it “is the only party that may assign the policy limit and the customer only becomes aware of the policy limit once EDC provides it to the customer.” It follows that EDC was creating such figures (i.e. numbers) through its own internal processes and evaluations.
[37] Since EDC created the aforementioned redacted information, it could not have existed prior thereto. As such, the redacted information was not “obtained by” / “recueillis par” EDC to fall within the scope of subsection 24.3 of the EDA.
(2) The words “obtained by” in their grammatical and ordinary sense [38] The English word “obtain” is defined at Dictionary.com as “to come into possession of; get, acquire, or procure”, which denotes that the something that “came into possession of” or the something “gotten or acquired” already existed (Collins English Dictionary, sub verbo “obtain”, online: www.dictionary.com/browse/obtain). While the French word “recueillir” is defined at the Le Larousse and Le Robert online dictionaries as “rassembler des choses,” “obtenir pour soi,” “recevoir,” “acquérir” (Larousse, sub verbo “recueillir”, online: dictionnaire.lerobert.com/definition/recueillir; Le Robert Dico en Ligne, sub verbo “recueillir”, online: dictionnaire.lerobert.com/definition/recueillir). Again, the French word “recueillir” still implies that the things that are “recueillis” already existed at the time of the “rassemblage”.
[39] In Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, the Supreme Court of Canada stated at paragraph 10:
[ . . . ] When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.
[40] Neither the English nor French text of subsection 24.3(1) of the EDA support EDC’s position that information which it itself created, assigned and issued is information “obtained by” / “recueillis par” EDC within the ordinary meaning of those words and within the broader context in which those words appear.
[41] The words “obtained by” / “recueillis par” cannot be so broadly interpreted to mean “any information relating to customers” “however so obtained, and in whatever way such information stands in relation to customers”, as pleaded by the EDC (A’s memo, page 10, para 28), including the redacted information that was created, assigned and issued by EDC. Accepting EDC’s interpretation of subsection 24.3(1) requires a reading of the statute that completely excludes the words “obtained by”. It essentially renders those words meaningless.
[42] The Supreme Court of Canada in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20 at para 45 stated that “every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.” Courts should therefore avoid adopting interpretations that render any portion of a statute meaningless. Parliament therefore must have intended for the words “obtained by” / “recueillis par” to have a purpose in the interpretation of this provision.
[43] Had Parliament intended for subsection 24.3(1) to be read as “all information in relation to its customer is privileged” as suggested by EDC, it could have easily done so by omitting the words “obtained by the Corporation”/ “recueillis par la Societé” at the time of subsection 24.3(l)’s enactment. However, Parliament did not; the words “obtained by the Corporation” must serve their purpose.
(3) Subsection 24.3(1) of EDA in harmony with provisions of the ATIA [44] In 2007, section 24.3 was added to the EDA and incorporated by reference into subsection 24(1) of the ATIA. This, along with the introduction of section 18.1(1)(b) of the ATIA, addressed EDC becoming subject to the right of access under the Act. These amendments resulted from the enactment of Bill C-2 under the Federal Accountability Act, which introduced a number of other changes to the ATIA.
[45] One of the other changes to the ATIA was the introduction of a number of additional exceptions to the right of access, many of which explicitly differentiate between information “obtained” and information “created” by government institutions subject to the ATIA: subsections 16.1(1), 16.2(1), 16.3(1), 16.4(1) and 16.6.
[46] As an example, section 16.1 of the ATIA reads (emphasis added):
Records relating to investigations, examinations and audits
16.1 (1) The following heads of government
institutions shall refuse to disclose any record
requested under this Part that contains information that was obtained or created by them or on their behalf in the course of an investigation, examination or audit conducted by them or under their authority:
(a) the Auditor General of Canada;
(b) the Commissioner of Official Languages for Canada;
(c) the Information Commissioner; and
(d) the Privacy Commissioner.
Documents se rapportant à des examens,
enquêtes ou vérifications
16.1 (1) Sont tenus de refuser de communiquer
les documents qui contiennent des
renseignements crées ou obtenus par eux ou
pour leur compte dans le cadre de tout examen,
enquête ou vérification fait par eux ou sous leur autorité :
a) le vérificateur général du Canada;
b) le commissaire aux langues officielles du
Canada;
c) le Commissaire à 1’information;
d) le Commissaire à la protection de la vie
privée.
[47] As pointed out by the Commissioner, the omission by Parliament of the word “created” in subsection 24.3(1) of the EDA, when at the same time, Parliament opted in subsections 16.1(1), 16.2(1), 16.3(1) and 16.4(1) to refer distinctly to “information that was obtained or created by” various institutions, cannot be ignored. This should be taken to signify Parliament’s intent to limit what would be restricted from disclosure under subsection 24.3(1).
[48] This is also supported by Parliament’s further inclusion of subsection 18.1(1)(b) to the ATIA listing EDC as a government institution subject to the ATIA, discussed in further detail below, which addresses information belonging to EDC itself, in contrast to information obtained by EDC in relation to its customers.
[49] Both provisions are significant as they indicate a distinction in treatment between EDC’s own information (at subsection 18.1(1)(b) of the ATIA) and EDC’s customers’ information (at subsection 24.3(1) of the EDA) . EDC’s own information cannot automatically fall within the scope of subsection 24.3 of the EDA.
[50] Such an overly broad interpretation of section 24.3 of the EDA, if accepted, risks rendering subsection 18.1(1)(b) of the ATIA redundant and therefore meaningless, and would remove its discretionary nature.
[51] EDC argues that giving the grammatical and ordinary meaning of the words “obtained by” /“recueillis par” EDC in relation to its customers at subsection 24.3(1) of the EDA, would render subsection 20(1)(b) of the ATIA superfluous. Information “supplied to a government institution by a third party” (as used in ATIA’s subsection 20(1)(b)) requires that the information be provided to a government institution by the third party.
[52] The Court is satisfied on the evidence that the correct interpretation of “in relation to its customers” must mean from or about EDC’s clients. As was stated by EDC’s then President and CEO, Rob Wright, before the Parliamentary Committee when reviewing and considering Bill C-2 (which led to the introduction of s. 24.3 of the EDA) on May 10, 2006, “section 24 … would make it against the EDC Act for us to release information we receive from our clients and about our clients in a way that might affect their commercial interest.”
[53] Further, “information obtained by EDC in relation to its customers” encompasses not only information that emanates from or that is provided to EDC by its customer, but also information that EDC obtains in relation to such a customer from a third party source. Each provision provides for a different test to justify its application.
[54] It has previously been held that if the information is a result of a negotiation between the parties, it cannot be characterized as “supplied to a government institution” (Canada Post Corp v Canada (National Capital Commission, 2002 FCT 700 [Canada Post] at para 14, citing Halifax Development Ltd v Canada (Minister of Public Works & Government Services), 1994 CarswellNat 3178, [1994] FCJ No 2035 at para 3). Indeed, to find otherwise, would essentially make every negotiated contract with a government institution exempt from disclosure, and the public would have no access to this information.
[55] Logically, if information arising from a negotiation between the parties is not “supplied to” the EDC for the purposes of subsection 20(1)(b) of the ATIA, neither could newly created information only based in part on client information be “obtained by” the EDC for the purposes of subsection 24.3(1) of the EDA. I interpret “supplied to” as used in subsection 20(1)(b) of the ATIA and “obtained by” as used in subsection 24.3(1) of the EDA as synonymous for this reason.
[56] Therefore, as is the case with numerous exceptions to the right of access under the ATIA, while there may be overlap in the coverage of subsection 24.3(1) and subsection 20(1), these provisions do not offer duplicative coverage so as to justify reading in the words “created by” EDC into subsection 24.3(1) of the EDA.
(4) Subsection 24.3(1) is not a codification of the common law duty of banker’s confidentiality [57] EDC has not provided the Court with any legislative source supporting its submission that subsection 24.3(1) of the EDA evidences an intention to codify the common law duty of banker’s confidentiality. In paragraphs 27 to 30 of their memorandum, EDC argues that subsection 24.3 of the EDA should afford client-related information “however so obtained” by EDC the same manner and level of protection as subsection 37(1) of the Business Development Bank of Canada Act (BDBCA).
[58] Testimony given by EDC’s Mr. Wright does not suggest that subsection 24.3(1) was intended or understood to provide a blanket protection of all information under EDC’s control, regardless of whether that information was created by EDC and would not reveal any commercially confidential client information.
[59] Mr. Wright’s testimony refers to the proposed provision’s protection of commercially confidential client information obtained from EDC’s customers. According to Mr. Wright: “[the proposed section 24.3 would continue]... to protect commercially confidential client information from release” and that analogous wording in the BDBCA had “... worked effectively in protecting the information [which the Business Development Bank of Canada] have from their clients...” He spoke of EDC’s need for “... a great deal of commercially sensitive information from [its] clients...” in order to deliver its services and cautioned that unless EDC can assure its customers that EDC “is going to protect the information that [EDC] can obtain in confidence”, 60% of EDC’s work in partnership abroad will not engage.
[60] Also, I agree with the Commissioner that Minister Baird’s comments do not speak about broadening the scope of section 24.3 to include the common law duty of banker’s confidentiality as alleged in EDC’s submissions. His comments speak of how Canadian exporters should not be hampered in competing on the world stage because of their information being subject to the ATIA, but do not support EDC’s contention that the information at issue was intended to fall within the scope of section 24.3. In this regard, EDC’s submissions to the Court do not explain how the disclosure of policy numbers and maximum liability figures exclusively assigned and issued by EDC in relation to unidentified customers would hamper Canadian exporters in competing on the world stage.
[61] EDC’s reliance on the Ontario Court of Justice’s decision in Re Application by Export Development Canada, 2016 ONCJ 74 [EDC reference case], also does not support its broad interpretation of subsection 24.3(1) or the applicability of the common law duty of banker’s confidentiality. Although in this decision the court referenced the legislative history of section 24.3, those references do not support EDC’s contention that it was intended to broaden the ordinary meaning of the words “obtained by.” To the contrary, the EDC reference case does not opine on the meaning of this particular phrase at all.
[62] The EDC reference case involved the issue of whether subsection 24.3(1) of the EDA insulated EDC from complying with a production order issued by the Court as part of an RCMP investigation. The Court held that subsection 24.3(2) of the EDA puts EDC in the same position as all other financial institutions vis à vis its obligation to comply with a validly issued court order. Nowhere within this decision does the Court refer to the common law duty of banker’s confidentiality, much less suggest that subsection 24.3(1) was intended to provide blanket protection to all information relating in any way to EDC customers regardless of whether that information was created by EDC and would not reveal any commercially confidential client information.
[63] Furthermore, EDC’s reliance on the jurisprudence relating to subsection 37(1) of the BDBCA, which uses language similar to subsection 24.3, does not support its broad interpretation. In Agence du revenu du Quebec c Banque de developpement du Canada, 2013 QCCQ 5202 [Agence du revenue], and relying on subsection 37(1) of the BDBCA, the Respondent bank refused to produce the entirety of the documents sought by the Applicant Agency:
Tous les documents concernant la cause # 700-22-025767-111 centre Pompe à beton Pierre Pilon inc. et Pierre Pilon, dont un jugement a été accordé en faveur de la Banque de Développement du Canada le 2012-02-20 pour une somme de 51 946,37 $. Ainsi que tous les documents liés à la saisie et à la vente des actifs de la société, dont la liste des actifs et 1’état des débours.
[64] The Commissioner is correct that the Court of Québec ordered their production, finding that this information was not obtained by the Bank about its customer, but rather that it fell within the scope of debtor enforcement proceedings in which the Bank was successful against its customer.
[65] Although the information clearly pertained to a specific client, the Court of Québec found that it was not information obtained by the Bank in relation to its client. The Agence du revenu case shows that there are some limits to what section 37 of the BDBCA actually encompasses, which is inconsistent with EDC’s contention that section 24.3 similarly applies to “any information relating to the customer acquired through the keeping of its account.”
[66] Finally, EDC’s contention that subsection 24.3(1) of the EDA requires that it protect any information regarding its customers through the “keeping of its accounts”, is also difficult to reconcile with EDC’s Policy, which describes various types of information associated with EDC’s “keeping of its accounts” that EDC will disclose. Per section 3.5.2 of that Policy, this includes reporting on “individual transaction information on all signed financing transactions” in the category of “political risk insurance (to lenders)”, which is amongst the information at issue in the current Application.
(5) Conclusion [67] I agree with the Commissioner that subsection 24.3(1) cannot be interpreted as including documents created by EDC. If this were Parliament’s intention, the word “created” would be present in subsection 24.3(1). In any event, even if there were two different interpretations open to the Court, as mentioned should be done in Rubin at para 23, I must interpret subsection 24.3(1) as not infringing the public’s right to access the information.
[68] Indeed, the Supreme Court of Canada in Macdonell v. Quebec (Commission d’accès à l’information), 2022 SCC 71 at para 18 cited Rubin to say:
It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it.
[69] For the purposes of this context with the EDC, the Court interprets “information obtained by the Corporation in relation to its customers” as “information obtained by or supplied to EDC that is from or about an EDC client.” Information created by EDC cannot also be obtained by or supplied to EDC, and is therefore excluded from the scope of subsection 24.3. EDC cannot rely on subsection 24.3 with respect to the redacted information.
C. Whether EDC has shown that it was authorized to use its discretion not to disclose the redacted information pursuant to subsection 18.1(1)(b) of the ATIA? (1) Interpretation [70] While I note that subsection 18.1(1)(b) of the ATIA has never been interpreted by any court, attention must be drawn to the striking similarities in the form and function between subsections 18.1(1)(b) and 20(1)(a) and (b) of the ATIA. When written together as a paragraph without bullet points, subsection 20(1)(a) and (b) read as follows:
Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Part that contains trade secrets of a third party, 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…
[71] When reading these two subsections side-by-side, there are only two operative differences. First, subsection 18.1 is permissive while subsection 20(1) is mandatory. Second, subsection 18.1 applies to information that belongs to the listed corporations, whereas subsection 20(1) applies to information supplied to a government institution by a third party. To illustrate this point, please see a condensed versions of both subsections 18.1 and 20(1) below with elements underlined and common elements italicized:
Economic interests of certain government institutions
18.1 (1): The head of a government institution may refuse to disclose a record requested under this Part that contains trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential [...]
Third party information
20 (1): The head of a government institution shall refuse to disclose any record requested under this Part that contains trade secrets or 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 [...]
[72] With these two caveats in mind, the subject matter of information should be covered by both sections (trade secrets or financial, scientific or technical information) is the same, as well as the qualifying treatment (consistently treated as confidential) of the information.
[73] Given the striking similarities between subsections 18.1 and 2