Geophysical Service Inc. v. Canada Newfoundland Offshore Petroleum

Geophysical Service Inc. v. Canada Newfoundland Offshore Petroleum
Court (s) Database
Federal Court Decisions
Date
2003-04-25
Neutral citation
2003 FCT 507
File numbers
T-2100-00
Notes
Digest
Decision Content
Date: 20030425
Neutral citation: 2003 FCT 507
Docket: T-2100-00
BETWEEN
GEOPHYSICAL SERVICE INCORPORATED
Applicant
- and -
CANADA -NEWFOUNDLAND OFFSHORE
PETROLEUM BOARD
Respondent
BETWEEN:
Docket: T-2101-00
GEOPHYSICAL SERVICE INCORPORATED
Applicant
- and -
THE CHAIRMAN, NATIONAL ENERGY BOARD
Respondent
Docket: T-2102-00
BETWEEN
GEOPHYSICAL SERVICE INCORPORATED
Applicant
- and -
THE CHAIRMAN, CANADA-NOVA SCOTIA
OFFSHORE PETROLEUM BOARD
Respondent
REASONS FOR ORDERS
GIBSON J.:
INTRODUCTION
[1] These reasons follow the hearing at Halifax on the 5th and 6th of February, 2003 of three (3) applications brought under section 41 of the Access to Information Act[1] (the "Access Act"). That section reads as follows:
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation.
[2] Geophysical Service Incorporated of Calgary, Alberta (the "Applicant") is the Applicant on each of the three (3) applications. The Respondents, in order of the Court's file numbers are: The Canada-Newfoundland Offshore Petroleum Board (the "Canada-Newfoundland Board"), The Chairman, National Energy Board (the "National Board") and The Chairman, Canada-Nova Scotia Offshore Petroleum Board (the "Canada-Nova Scotia Board"). By Order of the Court dated the 12th of December, 2002, the three (3) applications were heard together.
[3] In the application brought against the Canada-Newfoundland Board, the Applicant seeks review of:
(a) The refusal of the Canada-Newfoundland Offshore Petroleum Board ("CNOPB") dated April 5, 2000, to provide to the Applicant information requested by it from the CNOPB by request of March 1st , 2000; and
(b) The letter of finding of the Information Commissioner of Canada dated September 26th , 2000 reporting his findings of an investigation into a complaint by the Applicant dated April 25, 2000 pertaining to the decision of the CNOPB of April 5th, 2000... .
[4] The application against the National Board seeks equivalent review in relation to the refusal by that Board dated the 21st of March, 2000 to provide to the Applicant information requested by it from the National Board by request of the 2nd of March, 2000 and the letter of finding of the Information Commissioner of Canada dated the 22nd of September, 2000 reporting his findings on an investigation into a complaint by the Applicant dated the 25th of April, 2000 pertaining to the National Board's decision of the 21st of March, 2000.
[5] The application against the Canada-Nova Scotia Board seeks review, once again in essentially the same terms, against the refusal by that Board, dated the 3rd of April, 2000, to provide to the Applicant information requested by it from that Board by request of the 2nd of March, 2000 and the letter of finding of the Information Commissioner of Canada dated the 19th of October, 2000 reporting his findings on an investigation into a complaint by the Applicant dated the 25th of April, 2000 pertaining to the decision of the Canada-Nova Scotia Board of the 3rd of April, 2000.
[6] In each case, the Applicant seeks an order pursuant to section 49 of the Access Act requiring the relevant Board or the Chairman of the relevant Board to disclose to the Applicant the information that had been requested.
THE PARTIES
[7] The Applicant which, is in the business of collecting and otherwise acquiring, either under contract or on its own initiative, geophysical seismic data. Where the Applicant collects and acquires such data under contract, it provides the data to its client which, in turn, either by itself or through others, uses the data in the conduct of exploration for petroleum and natural gas. Where the Applicant collects and otherwise acquires geophysical data on its own initiative, it licenses the use of the data to clients who in turn use it in the conduct of exploration for petroleum and natural gas. The operations of the Applicant are conducted both on-shore and off-shore. Where the collection is done on-shore in Canada, it is done under licence from the National Board. Where the Applicant's operations are conducted offshore in an area under the jurisdiction of either the Canada-Newfoundland Board or the Canada-Nova Scotia Board, the operations are conducted under licence from whichever of those Boards is appropriate. In each case, as a condition of licence, the Applicant is required to deposit with the appropriate Board and, where the National Board is not the appropriate Board, also with the National Board, a copy of the geophysical seismic data collected. Each of the three (3) Boards has adopted the practice, on request, of releasing copies of the data deposited with it by the Applicant to third parties, without consultation with, or consent of the Applicant, following the expiration of a period of time set by law or by policy of the appropriate Board.
[8] Each of the three (3) Boards, among other things, licenses geophysical seismic data collection and requires the deposit of such geophysical seismic data, where the collection is done within the geographical area of its responsibility, under the authority of legislation and related relevant regulations. In the case of the Canada-Newfoundland Board, the relevant legislation is the Canada-Newfoundland Atlantic Accord Implementation Act[2] (the "Canada-Newfoundland Act") and companion "mirror" legislation of the province of Newfoundland.[3] In the case of the National Board, the relevant legislation is the Canada Oil and Gas Operations Act[4]. Finally, in the case of the Canada-Nova Scotia Board, the relevant legislation is the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act[5] (the "Canada-Nova Scotia Act"), and companion "mirror" legislation of the province of Nova Scotia[6].
THE REQUESTS FOR INFORMATION AND THE INITIAL RESPONSES
[9] On the 1st of March, 2000, the applicant requested of the Canada-Newfoundland Board that it provide the names and addresses of all third parties who had, within the preceding one hundred and fifty-four (154) months, requested and been granted access to information concerning or provided by the applicant to the Board, together with details of the information provided.
[10] By letter dated the 5th of April, 2000, the Canada-Newfoundland Board replied in the following terms:
The information that you request was provided for the purposes of Part II or Part III of the Canada-Newfoundland Atlantic Accord Implementation Act and therefore according to Section 119(2) is "privileged and shall not knowingly be disclosed without the consent in writing of the person who provided it except for the purposes of administration or enforcement of either Part or for the purposes of legal proceedings relating to such administration or enforcement." The confidentiality of this class of information does not expire.
As well, the information you have requested would be exempt under a number of provisions of the Access to Information Act, including ss. 19(1), ss. 20(1), para. 21(1)(a)(b) and ss. 24(1). ...
As both the Atlantic Accord Implementation Act and the Access to Information Act prohibit disclosure, we cannot provide the information you seek.[7]
[11] On the 2nd of March, 2000, the Applicant requested of the National Board that it provide the names and addresses of all third parties who had, within the preceding one hundred and eighty (180) months, requested and been granted access to information concerning or provided by the Applicant to the Board, together with details of the information provided. In essence, the request was the same as that made to the Canada-Newfoundland Board except that the number of months to which the request was related was varied.
[12] By letter dated the 21st of March, 2000, the National Board responded to the Applicant's request in the following terms:
As you are aware, the information you provide to the Board for the purposes of the Canada Oil and Gas Operations Act (COGOA) or the Canada Petroleum Resources Act (CPRA) is kept in our Frontier Information Office (FIO), after it has been released from privileged status pursuant to Section 101 of CPRA. A person who wishes to consult any information in the FIO makes an appointment to do so and attends at the FIO. Once in the FIO, the person may consult and photocopy any released information respecting oil and gas exploration and production operations on frontier lands. The Board does not record the specific information viewed by a person conducting research in the FIO. Therefore, the Board does not have any record of the persons who have had access to specific information concerning or provided by your organization, in the FIO.
If a person borrows information from the FIO, the Board records the specifics of the information borrowed to ensure its return. The Board has reviewed all of the available records of information borrowed going back approximately 42 months. Unfortunately, the records of information borrowed do not exist beyond this time period.
Attached please find copies of all the accessible records you requested. Please note that portions of the records have been severed, pursuant to section 20(1)(c) of the Access to Information Act (the Act), which states:[8]
. . .
[Substance of the opening words of subsection 20(1) and paragraph (c) of that subsection omitted]
[13] By letter dated the 2nd of March, 2000, the Applicant requested of the Canada-Nova Scotia Board that it provide the names and addresses of all third parties who had, within the preceding one hundred and twenty-three (123) months, requested and been granted access to information concerning or provided by the Applicant to the Board, together with details of the information provided. Once again, with the exception of the number of months to which the request related, the request was the same as that made of the Canada-Newfoundland Board and the National Board.
[14] By letter dated the 3rd of April, 2000, the Canada-Nova Scotia Board responded to the Applicant in the following terms:
Please be advised that the above referenced request is refused on the following grounds:
1) Pursuant to Subsection 122(2) of the Accord legislation, the information referenced in your request, is privileged and cannot be released without the written consent of the parties who provided it. In this regard, I would also refer you to Subsection 24(1) of the Access to Information Act.
2) Pursuant to Subsection 20(1)(c) of the Access to Information Act, as release of the information could reasonably be expected to prejudice the competitive position of the third parties.
I believe that it is worth noting that this request is very similar to one made by a representative of your company in October 1999. That request was refused for the same reasons. At that time, the Board contacted all third parties seeking their consent to disclose the subject information and all refused to consent.[9]
[15] In substance, with the exception of the National Board, all requests were refused. The National Board only provided the Applicant with information disclosed and did not disclose the names and addresses of requesters. The National Board did not rely on a claim of privilege arising out of its governing legislation. The Canada-Newfoundland Board relied on a wider range of provisions of the Access to Information Act then did either of the other Boards. Only the Canada-Nova Scotia Board indicated there had been consultation with any of the persons who had accessed relevant information.
THE COMPLAINTS TO THE INFORMATION COMMISSION AND RELATED RESPONSES
[16] On the 25th of April, 2000, the Applicant, by its counsel, made complaints to the Office of the Information Commissioner of Canada (the "Information Commissioner") in respect of each of the three (3) responses.
[17] By letter dated the 26th of September, 2000, the Information Commissioner responded to the Applicant's complaint regarding the Canada-Newfoundland Board. His response read in part as follows:
Following receipt of your complaint, we intervened with the department. [The Canada Newfoundland Board] agreed to disclose some information. As you know, following discussions between CNOPB and [the Applicant] a record was created and disclosed to your client on August 22. The remaining withheld information consists of the identities of the third parties who requested access to [the Applicant's] geophysical information and is exempted under paragraph 20(1)(c) and subsections 19(1) and 24(1) [of the Access to Information Act]. CNOPB ceased its reliance on paragraphs 20(1)(b) and 21(1)(a) and (b) to withhold information.
Having personally reviewed the information which remains withheld under paragraph 20(1)(c), I am satisfied that it is the names of firms which requested access to [the applicant's] geophysical information. I am of the opinion that such information, if released, could reasonably be expected to be injurious to the third parties' competitive positions. Under these circumstances, the head of a government institution is required under paragraph 20(1)(c), to refuse to disclose these records. The identities of individuals requesting information were withheld under authority of subsection 19(1) of the Act. Subsection 19(1) is a mandatory exemption subject to subsection 19(2). Since, in my opinion, none of the provisions of subsection 19(2) apply, CNOPB had no choice but to withhold this information.
CNOPB applied subsection 24(1) in conjunction with subsection 19(1) and paragraph 20(1)(c) to withhold the same information. When a department properly relies upon a provision of the Act when exempting a record or portion thereof it is not necessary for me to inquire into the propriety of other provisions it may have invoked. Consequently, it is not necessary for me to make a finding with respect to subsection 24(1).
Based on the foregoing, I am satisfied that you have been provided with all the records, relevant to your request, to which you are entitled under the law. Accordingly, I find your complaint to be resolved.[10] [emphasis added]
[18] The Information Commissioner replied to the Applicant's complaint regarding the National Board by letter dated the 22nd of September, 2000. That letter read in part as follows:
...Copies of the severed forms were provided to you with the identities of third parties withheld under authority of paragraph 20(1)(c) of the Act.
Having personally reviewed the records in question, I am of the opinion that the exempted information, if released, could reasonably be expected to be injurious to the third parties' competitive position. Under these circumstances, the head of a government institution is required to refuse to disclose these records.
I am satisfied that you have been provided with all the records relevant to your request to which you are entitled under the law. Accordingly, I am unable to support your complaint and will so inform the department.[11] [emphasis added]
[19] The Information Commissioner replied to the Applicant's complaint regarding to the Canada-Nova Scotia Board by letter dated the 19th of October, 2000. That letter read in part as follows:
Having personally reviewed the information withheld under paragraph 20(1)(c), I am of the opinion that, if released, it could reasonably be expected to be injurious to the third parties' competitive positions. Under these circumstances, the head of a government institution is required to refuse to disclose these records.
[The Canada-Nova Scotia Board] applied subsection 24(1) in conjunction with paragraph 20(1)(c) to withhold the same information. When a department properly relies upon a provision of the Act when exempting a record or portion thereof it is not necessary for me to inquire into the propriety of other provisions it may have invoked. Consequently, it is not necessary for me to make a finding with respect to subsection 24(1).
In your letter dated June 8, 2000, you made a case that, notwithstanding the Acts and Regulations governing [The Canada-Nova Scotia Board], which after five years removes privileged status from geophysical information, collected by the institute, your client's position is that the information remains proprietary to him; and therefore should be protected from disclosure under the Act. Subsection 2(2) of the Access Act states: "This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public."
Based on the foregoing, it is obvious that confidential/proprietary information, which loses its privileged status for protection based on a particular act or regulation; and is available to the public on request, cannot then be protected from disclosure by any provision of the Act.
I am satisfied that with the disclosure of some information to you and the imminent further release you will have been provided with all the records, relevant to your request, to which you are entitled under the law. Accordingly, I find that your complaint is resolved.[12]
FURTHER RESPONSES BY THE RESPONDENTS
[20] By letter dated the 15th of June, 2000, the Canada-Nova Scotia Board again replied to the Applicant, on this occasion, enclosing the "program numbers of the data which was accessed by third parties". It noted:
The balance of the information you requested remains privileged under section 122 of the Accord Act.[13]
The "balance of the information you requested" essentially amounted to the names and addresses of requesters and the linkage between each of them and the information disclosed.
[21] On the 22nd of August, 2000, the Canada-Newfoundland Board again responded to the Applicant enclosing a list of public requests for data provided by the Applicant since 1987.[14] In the result, the Canada-Newfoundland Board put itself into a position equivalent to that of the other two boards, that is to say, it withheld only the names and addresses of requesters of information provided by the Applicant and the linkage between each of them and the information disclosed.
[22] After the filing of these applications, the National Board found itself in a position where, for technical reasons, it was required to reconsider the Applicant's request for access to information held by it. There had only been two (2) requests made to it, in the period for which it had information, for information concerning or provided by the Applicant to it. The National Board sought submissions from each of the two affected parties. Based on those submissions, the National Board notified the Applicant that it would provide one of the two relevant records it possessed, including the name of the affected party that had obtained information concerning or provided by the Applicant. The National Board lived up to this undertaking. That being said, following a request by the Applicant, it refused to provide submissions made to it by the affected party whose identity it disclosed, apparently setting forth the affected party's rationale as to why its name should not be disclosed.
[23] In relation to the other requester, that is the requester whose identity the National Board determined not to disclose, the National Board relied on paragraph 20(1)(c) of the Access Act to support its position. That being said, the National Board did disclose to the Applicant the reasons given by that requester as to why its identity should not be disclosed.
[24] Only the National Board, following receipt of the request from the Applicant here at issue, consulted directly with each of the requesters potentially affected by the Applicant's request regarding the applicability of paragraph 20(1)(c) of the Access Act. The Canada-Nova Scotia Board had earlier sought the consent of requesters to the release of their names but each of the requesters had refused consent. The Canada-Nova Scotia Board did not seek from the requesters reasons for their refusal of consent.
THE ISSUES AND RELIEFS SOUGHT
[25] The issues before the Court on these applications are described in the Applicant's Memorandum of Fact and Law in the following terms:
- Have the Respondent[s]... met the burden of proving that they are justified by paragraph 20(1)(c) of the [Access Act] in refusing to disclose the information requested by the Applicant on the ground that the disclosure of the information could reasonably be expected to result in material financial loss to or could reasonably be expected to prejudice the competitive advantage of a third party?
- Do subsection 119(2) of the [Canada-Newfoundland Act] and subsection 122(2) of the [Canada-Nova Scotia Act] operate to make the names of the parties accessing the geophysical information provided by [the Applicant] privileged?
- Did the Respondent Chairman of the [Canada-Newfoundland Board] err in concluding that the names of the parties accessing the geophysical information filed by [the Applicant] were "personal information" pursuant to subsection 19(1) of the [Access Act]?[15]
[26] In a supplementary Memorandum of Fact and Law filed on behalf of the Applicant on the 17th of July, 2002, the Applicant notes that both the National Board and the Canada-Nova Scotia Board have relied in their Memoranda on grounds for withholding the identity of requesters not previously noted in correspondence from those boards to the Applicant. Both boards cite subsection 19(1) of the Access Act in support of their refusals of disclosure. The National Board also makes reference to section 24 and Schedule II of the Access Act and section 101 of the Canada Petroleum Resources Act[16], the latter being a "privilege" provision somewhat equivalent to section 119 of the Canada-Newfoundland Act and section 122 of the Canada-Nova Scotia Act. The Canada-Nova Scotia Board raises the issue of subsection 22(4) of the Freedom of Information and Protection of Privacy Act of Nova Scotia[17].
[27] By reason of the foregoing citations, the Applicant raises as a supplementary issue whether the National Board and the Canada-Nova Scotia Board are entitled to rely on the newly-cited grounds of refusal. It is a natural adjunct of the new issue identified by the Applicant that a further issue is, if either the National Board or the Canada-Nova Scotia Board is permitted to rely on the new citations, are those citations sufficient of themselves or in conjunction with others to support the refusals still maintained by the National Board and the Canada-Nova Scotia Board.
[28] Extracts from letters from the Information Commissioner to the Applicant that appear earlier in these reasons confirm that the new references sought to be relied on by the National Board and the Canada-Nova Scotia Board were not before the Information Commissioner when he enquired into the Applicant's complaints in relation to those two boards. By contrast, both subsections 19(1) and 24(1) of the Access Act were before the Information Commissioner when he examined the Applicant's complaint relating to the Canada-Newfoundland Board and subsection 24(1) was before him when he examined the Applicant's complaint relating to the Canada-Nova Scotia Board.
[29] I am satisfied that the foregoing description of the issues before the Court, as provided on behalf of the Applicant, accurately reflect the issues on these three (3) applications.
[30] The Applicant seeks orders pursuant to section 49 of the Access Act requiring each of the Respondents to disclose the balance of the information requested by the Applicant pursuant to the Access Act, from each of them. In its Memorandum of Fact and Law, the Applicant also seeks costs of each of the applications. This latter request for relief was modified during the course of the hearing of the applications. The question of costs will be returned to later in these reasons.
[31] Each of the Respondents seeks dismissal of the relevant application of the Applicant. Only the Canada-Newfoundland Board and the Canada-Nova Scotia Board seek costs.
THE STATUTORY SCHEMES
[32] Section 119 of the Canada-Newfoundland Act, section 122 of the Canada-Nova Scotia Act and section 101 of the Canada Petroleum Resources Act are reproduced in Schedule "A" to these reasons. It is to be noted that the sections from the Canada-Newfoundland Act and the Canada-Nova Scotia Act are essentially identical while section 101 of the Canada Petroleum Resources Act is, for the purposes of this matter, substantively very similar.
[33] Subsection 2(1), section 19, the opening words of subsection 20(1) and paragraph (c) of that subsection and subsection 24(1) of the Access Act are set out in Schedule "B" to these reasons. Sections 119 of the Canada-Newfoundland Act, 122 of the Canada-Nova Scotia Act and 101 of the Canada Petroleum Resources Act are all provisions "set out" in Schedule II of the Access Act for the purposes of subsection 24(1) of that Act.
ANALYSIS
a) General Principles
[34] In Rubin v. Canada (Minister of Health)[18], Justice Nadon, then of the Trial Division of this Court, wrote at paragraphs [36] and [37]:
Section 2 of the Act [the Access Act] codifies the public right of access and the basic premise that the public should have access to government records, and that exceptions to the right of access should be limited and specific. It has also been established that the burden of demonstrating that access to documents should be denied rests on the party opposing disclosure. In Maislin Industries Ltd., ... Jerome A.C.J. stated the following ...:
It should be emphasized however, that since the basic principle of these statutes is to codify the right of public access to government information, two things follow: first, that such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether, as in this case, it is the private corporation or citizen, or in other circumstances, the government.
With respect to applications for judicial review under s. 41 of the Act, as in the present instance, this principle is codified in s. 48 of the Act. Therefore, the onus rests on the Respondent to convince this Court, with direct evidence, that the material requested by the Applicant should not be disclosed and that it can benefit from the exemptions set out in s-s. 20(1) of the Act. In addition, it is clearly established in the jurisprudence that the standard of proof to be applied in respect of s-s. 20(1) of the Act is that of balance of probabilities. [citations omitted]
[35] All of the bases of exemption claimed in this matter are mandatory in nature. In Canadian Jewish Congress v. Canada (Minister of Employment and Immigration)[19], Justice Heald wrote at page 280:
If the exemption provision was mandatory, then there is only one type of decision: the factual decision as to whether the material comes within the description of the exempting provision. There is no second type of decision, as if the material is found to fall within the description, then the head of the institution is obligated to refuse disclosure. If a decision made under a mandatory exemption provision were to come before this Court for review, ... then firstly the Court would have to go through the record and determine whether or not the Minister was authorized to refuse disclosure. In so doing, the Court is effectually reviewing the factual decision. If the Court determined the Minister was in fact not authorized to refuse disclosure, then the Court would have to make an appropriate order. In the case of a mandatory exemption, an order for disclosure of the record would be an appropriate order if the Court determined the Minister had erred in the factual decision. The Act is clear in those cases that the material shall not be disclosed if falling within the exemption and the material shall be disclosed if it does not. [emphasis in original]
[36] I adopt the foregoing principles, which were not in essential dispute before me, for the purposes of these reasons.
b) Late-claimed bases for exemption from disclosure and a supplementary request for disclosure
[37] In Rubin, supra, Justice Nadon considered a fact situation in which a respondent, as here, relied upon a basis for exemption from disclosure not claimed until after the time the Information Commissioner reported on his investigation of the relevant complaint. Justice Nadon wrote at paragraph [56] of his reasons:
The Applicant contests its application herein due to the fact that the Respondent only invoked the exemption, ... after the report of the Information Commissioner. Pursuant to para. 10(1)(b) of the Act, if the head of a government institution refuses to give access to a record or part of a record, it must state in the notice to the requester the specific provision of the Act on which the refusal was based. Although the provision does not specify that the application of a particular provision must be announced within a definite period of time, s. 10 indicates that the notice sent to the requester must also state that the person can make a complaint to the Information Commissioner. This seems to indicate that the specific provision which will be relied upon by the institution must be indicated to the requester before the complaint is made to the Information Commissioner.
[38] Justice Nadon continues at paragraphs [59] and [60] of his reasons:
... the exemption pursuant to para. 13(1)(a) of the Act was not before the Information Commissioner when he investigated. The Commissioner's report states the following with respect to s. 13:
... As well. since HC has dropped its reliance on paragraphs 13(1)(a) and (b) and section 68 of the Act, I need not comment on those provisions. [Emphasis mine]
In my view, since the Respondent had dropped its reliance on s. 13 of the Act at the time of the Commissioner's investigation, it could not, a few months later, suddenly invoke that section again. The Respondent claims that it should be allowed to rely on para. 13(1)(a) since it was invoked on the material provided to the Applicant, although it was forgotten in the original notice. However, in my view, this is not sufficient. The Act clearly states that the provisions relied upon by the Respondent must be included in the notice. Therefore, I must agree with the Applicant that the Respondent is precluded from relying on s. 13 of the Act before this Court.
[39] The foregoing analysis was not dealt with by the Court of Appeal when Justice Nadon's decision was before it. In reasons delivered on behalf of the Court[20], Justice Rothstein wrote at paragraph [10]:
As the Minister need not rely upon section 13 in this case, we do not find it necessary to deal with Nadon J.'s finding in respect of section 13 and we make no comment on his analysis in this respect.
[40] I adopt Justice Nadon's reasoning in respect of the bases of exemption first relied on by the National Board and the Canada-Nova Scotia Board in their Memoranda of Fact and Law filed in these proceedings after the Information Commissioner had reported to the Applicant on his investigations into complaints made by the Applicant in respect of those Boards' positions. While it is entirely possible that the Information Commissioner, if those grounds for exemption had been before him, would have chosen not to comment on them based upon his conclusion that the exemptions in question were justified under paragraph 20(1)(c) of the Access Act, I regard that possibility as mere speculation. The scheme of the Access Act contemplates full disclosure to the requester on the bases claimed for exemptions in order that the requester might exercise the right of complaint to the Information Commissioner. On the facts of this matter, as with the facts before Justice Nadon, the requester, here the Applicant, was denied the right of complaint to the Information Commissioner in respect of a range of bases for exemption from disclosure that the National Board and the Canada-Nova Scotia Board now seek to rely on before this Court. I am satisfied that to allow those Boards to do so would contravene the spirit, if not the letter, of the Access Act and deny fairness to the Applicant.
[41] The supplementary basis for exemption relied on by the National Board and the Canada-Nova Scotia Board in their Memoranda of Fact and Law, and not earlier made known to the Applicant, will not be further considered.
[42] The substantive reliance by the Canada-Nova Scotia Board on subsection 22(4) of the Freedom of Information and Protection of Privacy Act of Nova Scotia, supra, was effectively abandoned at the hearing before me. Counsel for the Canada-Nova Scotia Board noted:
...the FOIPOP Act, admittedly, doesn't apply but my argument on that is that you should have regard to that in construing the Federal Access to Information Act.[21]
My analysis will not be impacted by consideration of the Nova-Scotia Freedom of Information and Protection of Privacy Act. Quite apart from the acknowledgement by counsel that it has no substantive application before me, I am satisfied that it would be equally inappropriate to consider its terms in construing the Access Act. While Parliament has made it clear that the Canada-Nova Scotia Act and its mirror provincial legislation must be read together, the same is not true for purposes of construction of the Access Act.
[43] Earlier in these reasons[22], I noted that the Applicant had requested access to submissions made to the National Board by an affected party whose identity was disclosed by the National Board to the Applicant. The submissions apparently provided the affected party's rationale as to why its identity should not be disclosed. The request for those submissions formed no part of the original access request made by the Applicant to the National Board. Nor was the Applicant's request for access to those submissions before the Information Commissioner. In the circumstances, for reasons analogous to those just provided as to why I will not consider late-claimed bases for exemption, I will not further consider the Applicant's supplementary request made to the National Board. That supplementary request and its rejection were not and could not have been before the Information Commissioner. I am satisfied that, if an access request was not and could not have been before the Information Commissioner, then this Court is precluded from consideration of that request on an application under section 41 of the Access Act.
c) Paragraph 21(1)(c) as a basis for exemption
[44] For ease of reference, the opening words of subsection 20(1) and paragraph (c) of that subsection of the Access Act are repeated here:
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
...
(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
...
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_:
...
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;
...
[45] It is not sufficient for an institution from which information such as the names of requesters and the description of requested information is requested to rely upon a general assertion that disclosure of such information 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.
[46] In Canada Packers Inc. v. Canada (Minister of Agriculture) et al.[23] Justice MacGuigan, for the Court wrote at paragraph [33]:
I take it from the introductory words of s. 20(1), viz., that "the head of a government institution shall refuse to disclose any record requested under this Act . . .", that a decision must be taken with respect to each distinct audit report. Nevertheless, since the judgment that is required involves the measurement of reasonable expectations, in my opinion it is necessary to view each report in the context of other reports requested for release with it, as the total contents of a release are bound to have considerable bearing on the reasonable consequences of its disclosure. [emphasis in the original]
[47] Exemption from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record.[24]
[48] Evidence of probable harm must be more than merely speculative. In Merck Frosst Canada Inc. v. Canada (Minister of National Health)[25], Justice Pinard wrote at paragraphs [15] and [16] of his reasons:
The applicant's evidence, here, is that of Mr. Saheb who, in his affidavit, merely states the procedural steps taken by the parties and makes the following general statement:
10. A detailed analysis of the record and documents which Health Canada proposes to allow access to, will show specifically why the information contained therein constitutes confidential information and/or which, if disclosed, may result in prejudice to the competitive position and result in financial loss from the disclosure of trade secrets.
I agree with the respondent that such bare statements are simply an affirmation of the alleged result of disclosure of the information and does [sic] not provide the Court with evidence that such outcomes are reasonably probable. According to my colleague Justice MacKay in SNC-Lavalin Inc. v. Canada (Minister of Public Works (1994), 79 F.T.R. 113, at page 127:
...The applicant does not demonstrate probable harm as a reasonable expectation from disclosure of the Record and Proposal simply by affirming by affidavit that disclosure "would undoubtedly result in material financial loss and prejudice" to the applicant or would "undoubtedly interfere with contractual and other negotiations of SNC-Lavalin in future business dealings". These affirmations are the very findings the court must make if paragraphs 20)(1)(c) and (d) are to apply. Without further explanation based on evidence that establishes those outcomes as reasonably probable, the court is left to speculate and has no basis to find the harm necessary to support application of these provisions.
[49] I am satisfied that the words of Justices Pinard and MacKay are applicable here.
[50] Mr. James Doyle, Manager, Support Services with the Canada-Newfoundland Board, filed an affidavit on behalf of that Board in the application on file T-2100-00. On the issue of confidentiality, material fina