Date: 19990915 Docket: T-1998-97
BETWEEN
DEKALB CANADA INC.
Applicant
- and -
AGRICULTURE AND AGRI-FOOD CANADA
Respondent
REASONS FOR ORDER
DUBÉ J.
[1] The applicant ("Dekalb") seeks a review of the decision made by the respondent ("Agriculture Canada"), dated August 26, 1997, to release certain information requested by a third party under the Access to Information Act ("the Act")'. The information in question is a document ("the document") containing the tests results for Dekalb hybrid corn samples taken in 1995 and tested in the field plots in the summer of 1996. The party launching the request
' R.S.C., 1985, c. A-1.
Page: 2 for the information is a party to one of seven law suits instituted against Dekalb by farmers alleging to have used the variety DK 220 and claiming damages against Dekalb.
1. Relevant provisions of the Act
[2] The relevant provisions of the Act read as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
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. (2) The head of a government institution shall not, pursuant to subsection (1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.
Page: 3 [3] The purpose of the Act, as outlined in subsection 2(1), is to provide a right of access to information in records under the control of the government in accordance with the principles that such information be available to the public, that necessary exceptions to that right be limited and specific and that decisions on such disclosure be reviewed independently of government. Section 20 deals with third party information and provides that the head of a government institution shall refuse to disclose any record requested under the Act that contains (under paragraph 20(1)(c)) information, the disclosure of which could reasonably be expected to result in material financial loss to, or to prejudice a competitive position of, the party affected.
[4] However, subsection 20(2) stipulates that the head of a government institution shall not, pursuant to subsection 20(1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution, unless the testing was done as a service to a person other than a government institution and for a fee.
[5] Thus, the main principle is that government must provide a right of access to information under its control. There is an exception to the effect that such information will not be disclosed where it would result in material financial loss to a third party. But, there is an exception to the exception to the effect that the government shall refuse to disclose information which contains the results of product or environmental testing.
Page: 4
[6] Dekalb relies upon the exception and Agriculture Canada invokes the exception to the exception.
2. Dekalb's Submissions
[7] Dekalb claims that the information requested relates to testing of seed varieties which have been developed as a result of its own continuing research and development efforts throughout North America. The disclosure of such information would reveal to knowleageable third parties trade secret information regarding the applicant's research and development efforts. It submits that the information is scientific or technical, confidential in nature, which Dekalb does not share with third parties. Thus, it does constitute trade secrets and is not available to the public from other sources. In particular, it would prejudice Dekalb in the law suits above-mentioned as the seven plaintiffs would use that information in their claim for damages.
[8] Moreover, Dekalb claims that the infomration requested is inaccurate and erroneous regarding the tests results with respect to seed variety DK 220 and filed some affidavit evidence in support of that allegation.
[9] As to the exception to the exception under subsection 20(2) of the Act, counsel for Dekalb argued that the document in question was not really a document which "contains
Page: 5 results of product or environmental testing carried out by or on behalf of a government institution", but constituted mainly in a visual inspection: the inspector merely visualized a number of samples and found a certain percentage thereof to be off-types. There was no chemical, technical or any elaboratory analysis carried out on the samples.
2. Analvsis
[10] The purpose of subsection 20(2) of the Act, as stated by the Federal Court of Appeal in Canada Post Corp. v. Canada, is to require the disclosure of information relating to public health and safety. The paramount consideration is the public interest in disclosure.
[11] The document in question discloses results for Dekalb's hybrid corn samples taken in 1995 and tested in the field plots in the summer of 1996. It deals with 13 different varieties including DK 220. There were 300 plants tested for each variety. The percentage of offtypes found in each sample is provided. Clearly, the document in issue contains the results of "product or environmental testing". It was carried out by or on behalf of a government institution and the testing was not done as a service to a person for a fee. It contains test results following the testing of samples of hybrid corn seeds taken by Agriculture Canada from Dekalb's premises. The term "off-type" means any seed that deviates in one or more characteristics from the variety as described by Dekalb at the time of registration of the seed.
2 [1995] 2 F.C. 110 at 124-125 (A.C.) [p. 345-346].
Page: 6
Off-types seeds are impure seeds either because of out-crosses or contaminants.
[12] It appears from Agriculture Canada's affidavits that the monitoring of the varietal purity of certified seeds by Agriculture Canada, (and since April 1, 1997, by the Canadian Food Inspection Agency) is done as part of an inspection program. The purpose of that program is to monitor the health, safety and quality of Canada's agricultural and food products and to promote consumer protection and the production of quality seeds in accordance with national standards. The document in question contains the results of such an inspection.
[13] Consequently, Dekalb cannot benefit from the subsection 20(1) exception as it falls under the subsection 20(2) exception to the exception.
[14] In any event, Dekalb could not benefit from the subsection 20(1) exception. The document in question does not divulgate "trade secrets"; it does not reveal information emanating from Dekalb's research and development efforts. It merely provides the end results of a government inspection. That information is available to the public when requested. The fact that the party who makes the request in this instance happens to be the plaintiff in an action against Dekalb, and may use that information at trial, does not vest the document with the characteristics of confidentiality. Information is not confidential where it may be obtained by observation, albeit with more effort by the requestor3. The document was created by the
3 Air Atonabee Ltd. v. Minister of Transport (1989), 27 F.T.R. 194, at 208 (T.D.) [p. 300].
Page: 7
public authorities spending funds in order to protect the public'.
[15] The document was not supplied by Dekalb in confidence and with the expectation that it would never be revealed to the public. It was created by Agriculture Canada. These inspection reports are "judgments made by government inspectors on what they have themselves observed"5.
[16] The allegation by Dekalb that the information regarding the tests results is inaccurate and erroneous is irrelevant. Judicial review under the Act is not the proper forum to test the accuracy of tests results in a particular document, or to challenge the validity of records under the control of a government institution.
3. Disposition
[17] Consequently, this application must be dismissed.
OTTAWA, Ontario September 15, 1999
Judge
' Intercontinental Packers Limited v. Canada(Minister ofAgriculture) (1987), 14 F.T.R. 142, at 147 (T. D.) [p. 390].
5 Canada Packers Inc. v. Canada, [1989] 1 F.C. 47, at 54 (C.A.) [p. 319].
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1998-97
STYLE OF CAUSE: DEKALB CANADA INC. v. AGRICULTURE AND AGRIFOOD CANADA
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: SEPTEMBER 7, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE DUBÉ DATED: SEPTEMBER 15, 1999
APPEARANCES
SERGE FOURNIER FOR APPLICANT
VIRGINIE CANTAVE FOR RESPONDENT
SOLICITORS OF RECORD:
BROUILLETTE CHARPENTIER FOURNIER FOR APPLICANT DOZOIS FORTIN
MONTRÉAL, QUÉBEC
DEPARTMENT OF JUSTICE FOR RESPONDENT OTTAWA, ONTARIO