Samsung Electronics Canada Inc. v. Canada (Health)

Samsung Electronics Canada Inc. v. Canada (Health)
Court (s) Database
Federal Court Decisions
Date
2020-11-30
Neutral citation
2020 FC 1103
File numbers
T-1617-18
Notes
Digest
Decision Content
Date: 20210129
Docket: T-1617-18
Citation: 2020 FC 1103
Toronto, Ontario, January 29, 2021
PRESENT: Mr. Justice Diner
BETWEEN:
SAMSUNG ELECTRONICS CANADA INC.
Applicant
and
THE MINISTER OF HEALTH
Respondent
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued on November 30, 2020)
I. Introduction 2
II. Background 3
III. Issues and Analysis 8
A. Preliminary issues 8
(1) Which of the two decisions stands? 8
(2) Promissory Estoppel 12
(3) Did Health Canada breach the principles of procedural fairness? 15
B. Substantive Issues 16
(1) Standards of Review and Proof 16
(2) Are the records exempt from disclosure under ATIA paragraph 20(1)(b)? 17
(3) Are the records exempt from disclosure under ATIA paragraph 20(1)(c)? 42
IV. Costs 46
V. Conclusion 46
VI. Confidentiality 47
I.
Introduction
[1] The Applicant, Samsung Electronics Canada (SECA), seeks judicial review of a decision by the Respondent Minister of Health (Health Canada) to release a number of records requested under the Access to Information Act, RSC 1985, c A-1 [ATIA]. Health Canada issued two decisions: first in July 2018 (July Decision) and then again in August 2018 (August Decision).
[2] The August Decision, which is the subject of this Application, contemplates the release of two types of records: (1) Incident Logs (Logs) and (2) Recall Effectiveness Forms (Forms) (collectively, the Disputed Records). SECA provided both types of records to Health Canada during a voluntary recall in 2016 (Recall) of certain models of its Kenmore and Samsung-branded top-load washing machines (Washers).
[3] SECA argues that the Disputed Records are exempt from disclosure because they (i) contain confidential commercial information, and (ii) their release would harm SECA’s competitive and financial position. Health Canada disagrees. Moreover, Health Canada asserts that this Application is procedurally barred because SECA should have brought an application for judicial review of the July Decision, but did not do so. It asserts that the August Decision underlying this Application is invalid because the ATIA does not authorize Health Canada to make more than one decision.
[4] Ultimately, I am neither convinced by Health Canada’s procedural argument, nor by SECA’s substantive argument that the Disputed Records should not be disclosed. I accordingly decline to intervene. My reasons follow a short background that summarizes the context of this dispute.
II. Background
[5] In 2016, SECA became aware of a number of incidents involving its Washers, whereby the top lids of certain Washers detached while in use, causing damage to property, but no injuries or deaths. SECA communicated information regarding these incidents to Health Canada, pursuant to its obligations under the Canadian Consumer Product Safety Act, SC 2010, c 21 [CCPSA].
[6] In September 2016, SECA issued a press release stating that it was working with Health Canada regarding the Washers’ potential safety issues. In October and November 2016, SECA issued two further press releases, in which it initiated the Recall. Pursuant to the Recall, SECA said that it had sold roughly 245,000 Washers between March 2011 and April 2016.
[7] SECA and Health Canada posted Recall notices on their respective websites, as part of the protocols required by the CCPSA. These notices provided information about the affected Washers, including the Washers’ model numbers, years of sale, the total number impacted, and the hazard that led to the Recall. Specifically, SECA described the hazard in the public notices in similar terms as it had previously described the hazard to Health Canada, namely as: “abnormal vibrations, tending to occur when bedding is washed on the ‘normal cycle’.” SECA also noted in the public notices 64 reports of Washer tops detaching, 11 of which caused minor property damage.
[8] In January 2018, Health Canada received an access to information request for disclosure of records related to the Recall (Request). The Request, originally in French, reads:
Le 4 novembre 2016, Santé Canada publiait en ligne le document intitulé Mise à jour et élargissement du rappel : Samsung Electronics Canada Inc. rappelle certaines /laveuses [sic] à chargements par le dessus, dont une copie est jointe à la présente lettre. Cet avis de rappel dont le numéro d’identification est le RA-60872 (« l’Avis »), visait divers modèles de laveuses à chargement vertical fabriquées par Samsung Electronics Canada Inc. (« Samsung »), dont les modèles de laveuses Kenmore. Nous désirons obtenir, conformément à la Loi sur l’accès à [l]’information (LRC 1985, c A-1), copie de l’ensemble du dossier de Sant[é] Canada concernant le rappel des laveuses SECA, y compris, mais sans s’y limiter:
• l’ensemble de la correspondance échangée entre Santé Canada et Samsung concernant le rappel;
• pour chacun des modèles de laveuses visées dans l’Avis, le nombre total de laveuses vendues
[Translation] On November 4, 2016, Health Canada posted an online document called “Updated and Expanded Recall: Samsung Electronics Canada Inc. recalls Certain Top Load Washing Machines,” a copy of which is attached to this letter. This recall notice, bearing identification number RA-60872 (“the Notice”), was for various models of top load washing machines manufactured by Samsung Electronics Canada Inc. (“Samsung”), including Kenmore washing machines. We would like to obtain, under the Access to Information Act (RSC 1985, c A-1), a copy of the full Health Canada file concerning the recall of SECA washing machines, including, but not limited to:
• all correspondence exchanged between Health Canada and Samsung concerning the recall.
• for each washing machine model mentioned in the Notice, the total number of machines sold.
[9] By letter dated April 20, 2018, Health Canada notified SECA – pursuant to third-party notice requirements in ATIA subsection 27(1) – of the records it had identified as responsive to the Request (Section 27 Notice). Along with its Section 27 Notice, Health Canada provided SECA with an intended release package totalling 436 pages (Records Package), which informed SECA of the records that Health Canada intended to either partially or completely release. The Records Package included information that was already publicly available following the Recall (for instance, through the SECA and Health Canada websites). However, it also included information that was not publicly available, namely some of the information that SECA provided to Health Canada pursuant to its CCPSA obligations.
[10] SECA responded to Health Canada’s Section 27 Notice by e-mail on May 28, 2018, explaining why it felt some records in the Records Package were exempt from disclosure pursuant to section 20 of the ATIA.
[11] SECA emphasized that it had consistently treated much of the Records Package as confidential business information, and specifically, had only supplied the Disputed Records to Health Canada on the understanding that those documents would remain confidential. For example, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| the disclosure of which would prejudice SECA’s competitive position. SECA asserted that it had also imposed a duty of confidentiality on employees and conducted annual compliance training on confidential records.
[12] Following numerous telephone and e-mail communications exchanged in the ensuing weeks, Health Canada conceded to additional redactions from the Records Package. However, leading up to the July Decision, disagreement remained about the status of some non-redacted documents within the Records Package, including over the Disputed Records.
[13] In a July 9, 2018 e-mail, Health Canada advised SECA that it had sent the July Decision by mail, which included the section 28 notice letter and a package of records that Health Canada had determined were subject to disclosure under the ATIA. In that e-mail, Health Canada advised SECA that the package was “being considered formal [section 28] notice,” and that should SECA disagree with the scope of disclosure, its only recourse would be to apply to the Federal Court for judicial review. However, that same e-mail advised SECA that Health Canada would nonetheless be “willing to listen to any specific and limited additional redactions [that SECA] may deem absolutely necessary.”
[14] Between July 12, 2018, and August 16, 2018, the parties further discussed the appropriate scope of disclosure under the ATIA. Health Canada made further concessions. In an e-mail dated July 27, 2018, Health Canada advised SECA that it was “officially retracting” the July Decision, noting that:
Health Canada has determined that due to the misinterpretation of some original representations and after taking additional information into consideration, Health Canada agrees that additional redactions should have been applied to a portion of the records; therefore, Health Canada is officially retracting the notice mentioned [in the July 10, 2018 s. 28 notice letter] and will be re-issuing a corrected Section 28 notice to [SECA] in the near future.
[Emphasis added.]
[15] On August 1, 2018, Health Canada advised SECA by e-mail that it had sent another “proposed release package,” and again asked the company to “advise of objections within five days of receiving the records.” SECA submitted additional representations to Health Canada on August 7, 2018.
[16] On August 13, 2018, Health Canada notified SECA by e-mail that it would “now have to move forward with the section 28 letter and make [its] final decision as the file [was] extremely late and the applicant [was] pressing for a reply.” The e-mail indicated SECA would receive copies of the documents that Health Canada identified for disclosure in its upcoming August Decision. For SECA, the August 13, 2018 e-mail was the first time Health Canada had referred to a “final decision.” Health Canada then issued its August Decision. SECA received this second section 28 notice on August 16, 2018, containing a narrower release package, consisting only of the Disputed Records. SECA then filed this Application on September 5, 2018, within the statutory time limit.
[17] On September 26, 2019, SECA cross-examined Curtis Mathews (Team Leader of Health Canada’s Access to Information and Privacy Section) on his Affidavit that Health Canada provided in support of this Application. Mr. Mathews was the Health Canada official who had advised, in the July 27, 2018 e-mail to SECA, that Health Canada was “officially retracting” the July Decision and would be “issuing a corrected section 28 notice.” During the cross-examination, Mr. Mathews confirmed that the July Decision was thereby “void and of no effect,” and that the first time Health Canada mentioned the words “final decision” was with respect to the August Decision.
III. Issues and Analysis
[18] Before considering the substantive issue of whether the Disputed Records warrant exemption under the ATIA, Health Canada raises a preliminary procedural argument, which is that only the July Decision – and not the August Decision – is valid. In addition, SECA contends Health Canada violated procedural fairness by failing to provide SECA with a section 27 notice for all of the records that Health Canada identified as responsive to the Request.
A. Preliminary issues
(1) Which of the two decisions stands?
[19] Health Canada claims the August Decision is void and of no effect because the ATIA regime grants heads of government the authority to make only one decision regarding an access to information request. Because Health Canada issued a decision in July 2018 and a second decision in August 2018, Health Canada claims that the August Decision was made in error, and without authority, because the legislation only allows the Minister to make one decision. Health Canada contends that only the July Decision stands, and since SECA missed the ATIA section 44 (20-day) filing deadline to judicially review the July Decision, the Court lacks jurisdiction to hear this Application.
[20] To support the argument that the legislation permits only one possible section 28 decision, Health Canada relies on four cases: Matol Botanical International Inc v Canada (Minister of National Health and Welfare) (1994), 84 FTR 168, [1994] FCJ No 860 (QL) (FCTD) [Matol]; AstraZeneca Canada Inc v Health Canada, 2005 FC 1451 [AstraZeneca]; Porter Airlines Inc v Canada (Attorney General), 2013 FC 780 [Porter]; and Recall Total Information Management Inc v Canada (National Revenue), 2015 FC 1128 [Recall].
[21] I am not persuaded by the principles that Health Canada extracts from these cases to support its argument that SECA should have challenged the July Decision because the August Decision was invalid. Four factors distinguish this case from Matol, AstraZeneca, Porter, and Recall, namely that in this case, Health Canada – the government institution – (i) invited SECA to provide further representations regarding disclosure after it had issued the July Decision; (ii) stated that it was “officially retracting” the July Decision following discussions with SECA; (iii) used the language of “final decision” in relation to the August Decision; and (iv) narrowed the scope of the disclosure package consistently throughout discussions with SECA until the company commenced this Application, after which Health Canada made no further decisions regarding disclosure.
[22] Matol, AstraZeneca, Porter, and Recall differed in each of these elements. First, the head of the government institution in those cases made further decisions after the third party had already applied for section 44 judicial review of the original decision. In Matol, for instance, this Court found that the ATIA did not authorise the institutional head to issue further decisions after a section 44 application for judicial review had already been filed with the Court, because the ATIA did not enable the head “to sit on appeal from its own decision” (at para 36). Similar scenarios occurred in AstraZeneca, Porter, and Recall. In contrast, here, Health Canada’s August Decision came before SECA filed this Application. Health Canada did not re-decide an earlier decision, but rather rescinded it as part of ongoing negotiations with SECA, and made no further decisions after SECA commenced this Application. Unlike in these four cases, I find that there was only a single decision made here – the August Decision.
[23] Another point of distinction is that the discussions between Health Canada and SECA that followed the Section 27 Notice and the July Decision led Health Canada to consistently narrow the scope of disclosure of the Release Package. This suggests Health Canada and SECA were working together, on an ongoing basis, to determine which records in the Records Package fell within an ATIA exemption. The July Decision must be examined in this context. SECA argues that the July Decision was a “preliminary draft decision” at best, and one Health Canada rescinded shortly after issuance, in light of its ongoing discussions with SECA. Although Health Canada issued a formal section 28 notice contemporaneously with the July Decision, its overall context distinguishes this case from the four cited by Health Canada.
[24] Taking a step back, it is worth noting that the Supreme Court of Canada (Supreme Court) has acknowledged that third parties entitled to a section 27 notice may be in the best position to know whether records fall within section 20 exemptions. In Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 [Merck], the Court wrote at para 79:
Given the nature of the exemptions in issue — trade secrets, financial and other confidential information, etc. — the third party whose information is being considered is generally in a better position than the head of the institution to identify information that falls within one of the s. 20(1) exemptions. The third party knows and understands the industry in which it participates and has an intimate knowledge of the specific information, how it has been treated and the possible harm that could come from its disclosure.
[25] The reason that third parties may be in the best position to determine if a record falls within the section 20 exemptions is precisely why the ATIA requires that they be given the opportunity to both (i) respond to a section 27 notice of pending disclosure and (ii) to challenge a section 28 decision before this Court. The Supreme Court states that “[a] cooperative approach is necessary in order for the system to work” (Merck at para 90).
[26] Proposed disclosure packages are not set in stone until a final decision is issued. For instance, in Wells v Canada (Minister of Transport) (1995), 96 FTR 178 at 3, [1995] FCJ No 822 (QL) (FCTD) [Wells], Associate Chief Justice Jerome wrote of a preliminary decision:
...I have difficulty with [the Applicant’s] contention that this decision is irreversible or that it amounts to a waiver which may be used to force the Minister to release documents, yet unreleased, that are properly held to be protected from disclosure. The effect of such a rule would be to foreclose any reconsideration of a decision to release documents to the public and bind the Minister at every step of an Access request once a decision in the affirmative was made or intimated by a lower level government employee. Moreover, the Minister or Head of the Government Institution already has a responsibility under the Act to disclose records requested unless that information is exempt from disclosure under the statute, a clear confirmation of that obligation prior to a review of the documents does not extend that obligation: Air Atonabee v. Min. of Transport (1989) 27 F.T.R. 194 at 204-5.
[27] While Wells did not involve a third party, it is nonetheless more analogous to the case at hand than the four cases cited by the Respondent on this issue (Matol, AstraZeneca, Porter, and Recall). In Wells, as in this case, the Minister’s second decision narrowed the scope of disclosure from that which the institutional head had initially decided. In addition, the second decision in Wells, like here, came before any section 44 judicial review application had been filed. The Minister did not change position after the judicial review had been filed.
[28] Given the facts of this case, including Health Canada’s invitation to SECA to provide further representations after having “officially retracted” the July Decision, and its notice of an imminent “final” decision just prior to issuing the August Decision, SECA had good reason to rely on Health Canada’s representations regarding the July Decision, and good reason delay the commencement of an application for judicial review to continue negotiating with Health Canada.
[29] I am unpersuaded by Health Canada’s argument, raised several months after this ATIA section 44 litigation was commenced in September 2018, that its August Decision was a “mistake.” After all, the August Decision was not an isolated event, but rather one that involved a number of considered communications and negotiations. Based on assurances that the earlier notice had been “officially retracted” and a “final decision” would issue, the Applicant was entitled to rely on the department’s representations.
[30] Looking at the sequence of events from a statutory compliance perspective – and consistent with the principles underlying Matol, AstraZeneca, Porter, and Recall – the August Decision was the only legal section 28 decision, and the institution cannot subsequently retract it in favour of the earlier, rescinded one.
(2) Promissory Estoppel
[31] SECA also invokes promissory estoppel in its arguments regarding the August Decision being determinative. I agree that this doctrine applies in the circumstances, as an alternative ground upon which to reject the Respondent’s position that only the July Decision stands. Turning to that doctrine, in Immeubles Jacques Robitaille inc v Québec (City), 2014 SCC 34 at para 19 [Robitaille], the Supreme Court held that, in the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a public authority to induce the citizen to perform a certain act.
[32] In Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 at para 45 [Mount Sinai] (affirmed in Robitaille), the Supreme Court re-articulated the test for the doctrine of promissory estoppel:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, [1] by words or conduct, made a promise or assurance [2] which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position....
[T]he promise must be unambiguous but could be inferred from circumstances.
[33] I am aware that the doctrine of promissory estoppel has a narrow berth in the context of government decisions. As Justice Mainville wrote in Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130:
[38] Though the doctrine of promissory estoppel may be available against a public authority, including a minister, its application in public law is narrow. As noted by Binnie J. in his concurring opinion in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281 (Mount Sinai) at para. 47, public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text.
[39] This principle has been expressed in various ways. In St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, [1950] S.C.R. 211, at p. 220, Rand J. expressed it as follows: “there can be no estoppel in the face of an express provision of a statute”. In Canada (Minister of Employment & Immigration) v. Lidder, [1992] 2 F.C. 621 at p. 625, Marceau J.A. stated the principle as follows: “[t]he doctrine of estoppel cannot be invoked to preclude the exercise of a statutory duty”….
[Emphasis added.]
[34] In Malcolm, the FCA refused to apply promissory estoppel to prevent a Minister from exercising his broad discretion in a way that did not align with the policy decisions of his predecessors: the Court recognized that the Minister had wide discretion, and that policy decisions of previous Ministers did not bind the incumbent. The principle drawn, then, is that a party cannot use the doctrine as a sword to prevent the exercise of a statutory duty, particularly where Parliament intended that duty to protect the interests of persons of special concern. In Malcolm, that duty was a discretionary decision-making power.
[35] The analogy in the ATIA context is that a third party cannot not use promissory estoppel to prevent an institution from exercising its statutory duty to make a decision regarding an access request, when section 28 of this legislation clearly spells out a duty to make such a decision. SECA, however, does not rely on promissory estoppel to prevent HC from making a decision. Rather, it asserts the promissory estoppel doctrine as a shield to prevent Health Canada from rescinding a decision properly made – the August decision – in favour of its retracted July decision. This reasoning holds water. Looking at the scenario differently, Health Canada cannot retract its first decision based on an error, engage in further negotiations on the promise of a prospective final decision, render that final decision, and then claw it back after the start of litigation to prevent SECA from challenging the decision in this Court.
[36] Health Canada intended for SECA to rely on its unambiguous words and conduct. The former rescinded its July Decision, and replaced it with its “final” August Decision. In between, it continued to work with SECA to determine the proper scope of disclosure. SECA relied on this when it decided not to file an unnecessary section 44 application for review of the July Decision. To do so would have been a waste of resources, including Health Canada’s and this Court’s, given that Health Canada indicated a continuing willingness to negotiate. SECA is thus entitled to defend its actions through the shield of promissory estoppel, and Health Canada cannot only, after the start of litigation and in hindsight, now say that it issued its second decision in error, such that only its first decision stands.
[37] In sum, I find that the August Decision is valid, that the July Decision has no force or effect, and that this Application was properly filed within the 20-day statutory deadline.
(3) Did Health Canada breach the principles of procedural fairness?
[38] SECA raised a procedural unfairness argument relating to the fact that Health Canada withheld some records from the original Records Package, which SECA only discovered after the withheld records were shared with SECA in the course of this litigation. Health Canada conceded at the hearing of this Application that it should have disclosed the withheld records in the Section 27 Notice. As these records have since been disclosed in the context of this Application, I find that SECA has not suffered any procedural unfairness.
B. Substantive Issues
[39] At the heart of this matter lies the substantive issue of whether Health Canada incorrectly failed to exempt the Disputed Records from disclosure under the ATIA on the basis of confidentiality (paragraph 20(1)(b)) or harm (paragraph 20(1)(c)).
(1) Standards of Review and Proof
[40] This is the first ATIA decision released since Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], where the Supreme Court held that reasonableness is the default standard for judicial review. However, a clear indication that the legislature intended a different standard to apply rebuts this presumption (Vavilov at paras 32 and 34-35). ATIA subsection 44(1) provides that judicial review must be a de novo review, and is “to be heard and determined as a new proceeding.”
[41] Therefore, without using the exact language of an “appeal,” subsection 44(1) of the ATIA clearly indicates that Parliament intended that this Court conduct a correctness review. This means that I must decide anew whether the Disputed Records fall within an ATIA exemption, based on the evidence presented by the parties (Merck at para 3). Merck also confirms a long line of cases holding that a correctness standard applies (Merck at para 53). Both parties agree, as do I, that Vavilov does not change this standard.
[42] Finally, in terms of the burden of proof, Merck also instructs that the third party bears the onus of establishing any exemption from disclosure on a balance of probabilities (at paras 94-95).
(2) Are the records exempt from disclosure under ATIA paragraph 20(1)(b)?
[43] The Disputed Records contain two types of information: the (1) Logs and (2) Forms. SECA submitted these Disputed Records to Health Canada in the context of its 2016 Recall, pursuant to its obligations under section 14 of the CCPSA recall protocols, under which the manufacturer must inform Health Canada of any events that meet the statutory definition of an “incident” within two days of becoming aware of such events (CCPSA, subsection 14(2)). The CCPSA defines “incident” in paragraphs 14(1)(a) and (b), as an occurrence, defect, or characteristic that may reasonably have been “expected to result in an individual’s death or in serious adverse effects on their health, including a serious injury.”
[44] Here, the Disputed Records came into existence after events involving the Washers met the statutory definition of an “incident.” Before assessing whether the information in the Disputed Records falls within an exemption under paragraph 20(1)(b), a brief description of them follows.
(a) The Logs
[45] In their full format, the Logs contain a table featuring six columns: (1) Customer Name; (2) Customer Address; (3) Model number; (4) Date of Incident Report; (5) Customer Report to Customer Service; and (6) Resolution. Following discussions with SECA, Health Canada agreed to redact columns (1) and (2), “Customer Name” and “Customer Address,” pursuant to ATIA subsection 19(1) because they contained personal information. Health Canada also agreed to redact column (6), “Resolution,” because it accepted SECA’s arguments that the column contained confidential information that was scientific, commercial, technical, or financial under ATIA paragraph 20(1)(b). Health Canada refused to withhold the remaining columns from disclosure, citing its obligation under the ATIA to release them.
(b) The Forms
[46] The Forms are standard three-page questionnaires from Health Canada. Third parties must complete these questionnaires as part of the consumer product incident and recall process. In addition to general contact information, the Forms request information through blank “fields,” to be filled in by parties that have communicated “incidents” to Health Canada. The Forms request further information from third parties, including: the total number of affected units; the total number of distributed units; the kinds of measures that the third party has taken to notify the public of incidents (i.e., notices in retail outlets, on websites, or in other media); the number of consumers affected (including the number of consumers who have been contacted and who have responded); the kinds of response measures that have been taken in remediation (i.e., how many customers were contacted, the mode of contact, and the number of product returns, refunds, exchanges, and repair kits that have been processed); and updates on the number of incidents. The Forms also request information about deaths or injuries related to the incidents.
[47] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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[48] Pursuant to discussions with SECA, and as occurred with the severed portions of the logs described above, Health Canada also redacted certain portions of the Forms in accordance with ATIA requirements. It redacted: |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Health Canada made these redactions pursuant to ATIA subsection 19(1) and paragraph 20(1)(b).
(c) Parties’ Arguments regarding paragraph 20(1)(b)
[49] SECA asks this Court to exempt the Disputed Records from disclosure under ATIA paragraph 20(1)(b), and thus prohibit their release. SECA argues that the Disputed Records contain sensitive commercial information, which it has consistently treated as confidential.
[50] Specifically, SECA states the Logs |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. SECA notes that the Forms contain ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The company also points to its |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[51] SECA notes that it has consistently imposed strict confidentiality requirements on its employees, including having them sign confidentiality agreements and attend annual compliance training, and that it provided the Disputed Records to Health Canada with a reasonable expectation of confidence. SECA further claims that the information in the Disputed Records is not otherwise available to the public.
[52] Health Canada responds that the Disputed Records are not exempt under paragraph 20(1)(b) for four reasons. First, Health Canada says the information in the Disputed Records is not “financial, commercial, scientific or technical” within the meaning of the ATIA. It characterizes the information in the Disputed Records as falling outside the scope of paragraph 20(1)(b). Health Canada argues that the fact that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| does not change the nature of the information.
[53] Second, Health Canada contends that some of the information in the Disputed Records is already publicly available. This type of information includes: |||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Health Canada states that it regularly releases information related to the number of incidents reported for voluntary recalls, or, when requested by the public, information related to incident logs or consumer complaints (with personal information redacted). Health Canada argues that, to the extent that information in this case was not already publicly available, anyone could obtain it through observation or by surveying customers.
[54] Third, Health Canada argues that SECA has not met its burden of establishing a reasonable expectation of confidentiality. The |||||||||||||||||||||||||||||||||||||||||||||||||||||||| Disputed Records are insufficient in and of themselves for SECA to establish the confidential nature of the Disputed Records. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||
[55] Finally, Health Canada contends SECA failed to demonstrate that keeping the Disputed Records confidential fosters a relationship between the institution and the third party that is in the public benefit. Health Canada notes that SECA submitted the Disputed Records as a result of its obligations under the CCPSA. Indeed, Health Canada states that mandatory reporting under the CCPSA acknowledges the important role industry plays in product safety, and provides it with a broad understanding of safety-related incidents occurring with consumer products, in a relationship between manufacturer and regulator for the public benefit.
(d) The Key ATIA Statutory Provisions
[56] The two key ATIA provisions at issue in this Application read:
20 (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Part that contains
20 (1) Le responsable d’une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant :
…
[…]
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers;
…
[…]
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
c) des renseignements dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité;
…
[…]
[57] To consider whether a certain record must be disclosed under the ATIA, it is important to recall the tension at the heart of the Act, and the competing interests that courts must balance in applying its provisions. Justice Mactavish discusses these in Bombardier Inc v Canada (Attorney General), 2019 FC 207 [Bombardier], at paras 35-38:
[35] The ATIA provides a right of timely access to information in records under the control of government institutions, and has been held to enshrine a quasi-constitutional right of access for the purpose of facilitating democracy: Statham v. Canadian Broadcasting Corporation, 2010 FCA 315 at para. 1, [2012] 2 F.C.R. 421; Merck, above at para. 1; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 61, [1997] S.C.J. No. 63, per La Forest J. (dissenting, but not on this point).
[36] The ATIA facilitates democracy “by helping to ensure that citizens have the information required to participate meaningfully in the democratic process”, and by assisting in holding politicians and officials to account: Merck, above at para. 22. As a consequence, access to information legislation is to be given a broad and purposive interpretation.
[37] The Courts have, however, also recognized that other public and private interests may be engaged when access is sought to government information. Governments collect information from third parties that can include confidential commercial information that may be valuable to competitors, the disclosure of which may cause financial or other forms of harm to these third parties and discourage research and innovation: Merck, at para. 2.
[38] As a consequence, a careful balance must be struck between the competing interests of providing the public with access to government information and protecting the interests of third parties: Merck, above at paras. 2 and 4. The question for determination is whether that balance has been properly struck in this case.
[58]