Date: 20040531
Docket: A-164-03
Citation: 2004 FCA 214
CORAM: STONE J.A.
BETWEEN:
BROOKFIELD LEPAGE JOHNSON CONTROLS
FACILITY MANAGEMENT SERVICES
Appellant
and
MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
Respondent
Heard at Ottawa, Ontario, on May 25, 2004.
Judgment delivered at Ottawa, Ontario, on May 31, 2004.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
SEXTON J.A.
Date: 20040531
Docket: A-164-03
Citation: 2004 FCA 214
CORAM: STONE J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
BROOKFIELD LEPAGE JOHNSON CONTROLS
FACILITY MANAGEMENT SERVICES
Appellant
and
MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
Respondent
REASONS FOR JUDGMENT
[1] This appeal turns on a very narrow point. It concerns one sentence in the reasons given by the Applications Judge when she dismissed an application by Brookfield Lepage Johnson Controls Facilities Management Services ("BLJC") under section 44 of the Access to Information Act, R.S.C. 1985, c. A-1, for an order prohibiting the Minister of Public Works and Government Services Canada ("PWGSC") from disclosing certain documents. The documents in question had been submitted to PWGSC by BLJC as part of its bid in response to requests for proposals to provide property management services for properties belonging to the Government of Canada.
[2] Before the Applications Judge, BLJC's counsel advanced several grounds on which, he said, PWGSC was prohibited from disclosing the disputed documents ("records" under the Act). He failed to persuade the Judge that any had merit. In this Court, BLJC only challenges the Judge's conclusion that disclosure is not prohibited by the underlined words of paragraph 20(1)(c) of the Act.
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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 (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
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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 don't la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité; d) des renseignements don't la divulgation risquerait vraisemblablement d'entraver des négociations menées par un tiers en vue de contrats ou à d'autres fins.
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[3] I reproduce below the relevant paragraph in the Applications Judge's reasons, having underlined the sentence which counsel for the applicant says demonstrates that the Judge must have misinterpreted the Act when she decided that the records were not covered by paragraph 20(1)(c).
[22] I have carefully reviewed the evidence, including the supplementary affidavit, and conclude that, aside from general statements of possible harm, BLJC has failed to provide evidence that there exists a reasonable expectation of probable harm if the records in question are released. Specifically, the applicant's statements regarding prejudice that may occur are of a general nature and fail to provide insight as to how the competitors might use the record so that the applicant will sustain a reasonable expectation of probable harm. At its highest, it can only be said that the competitive position of the applicant will be prejudiced. There exists, here, insufficient evidence to conclude that there is a basis to establish financial loss or prejudice to BLJC, or financial gain to a competitor. [emphasis added]
[4] Counsel's argument has an attractive simplicity. He says that, in order to succeed under paragraph 20(1)(c), an applicant must establish that disclosure could reasonably be expected to result in material financial loss or gain to a third party, or to cause prejudice to the competitive position of a third party. The Judge's finding that disclosure of the disputed records will prejudice BLJC more than satisfies the statutory requirement that disclosure could reasonably be expected to prejudice BLJC's competitive position. On the basis of her finding, counsel concluded, the Judge had no option but to prohibit disclosure under paragraph 20(1)(c).
[5] Counsel suggested two possible explanations of the Judge's failure to conclude that the records were exempt from disclosure, despite her finding that disclosure will prejudice the applicant's competitive position. First, the Judge may have thought that an applicant is only entitled to an exemption from disclosure on proving a reasonable probability that disclosure will both result in financial loss or gain to a third party and prejudice a third party's competitive position. He submitted that this would be a misinterpretation of paragraph 20(1)(c) because it gives a conjunctive meaning to the word 'or' between financial loss or gain on the one hand, or prejudice to competitive position on the other.
[6] That this is what the Judge had in mind, counsel argued, is indicated by the fact that she stated that it can only be said that disclosure will prejudice BLJC's competitive position. By using the adverb 'only', counsel submitted, the Judge was drawing attention to the fact that the applicant had not also proved financial loss or gain, and therefore could not succeed under paragraph 20(1)(c).
[7] Second, counsel suggested that the Judge may have read the case law on paragraphs 20(1)(c) and (d) to say that, in addition to proving "prejudice" to its competitive position, or "interference" with its contractual or other negotiations, an applicant must also establish "harm".
[8] In Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.), MacGuigan J.A., writing for a unanimous Court, said that paragraphs (c) and (d) should be interpreted as requiring "a reasonable expectation of probable harm." The underlining is MacGuigan J.A.'s. However, counsel submits, it is clear that, when examined more closely, Canada Packers was only concerned to prescribe the nature of the causal link needed to obtain an exemption from disclosure under these paragraphs and to reject the position taken at first instance, namely, that there must be a direct causal link between disclosure and any financial loss or gain, competitive prejudice or interference with negotiations. As MacGuigan J.A.'s underlining of the word "probable" indicates, he did not also mean that loss, gain, prejudice or interference were insufficient in themselves to obtain the protection of paragraphs 20(1)(c) and (d) without proof of additional "harm".
[9] I agree with counsel's interpretation of the Act. The two limbs of paragraph 20(1)(c) (financial loss or gain on the one hand, and competitive prejudice on the other) are disjunctive. Thus, an applicant who establishes a reasonable expectation of probable competitive prejudice is entitled to require that the records in dispute not be disclosed.
[10] I also agree with his interpretation of the case law. Having established a reasonable expectation that disclosure will probably prejudice its competitive position, an applicant does not also have to prove "harm". However, this may be no more than a matter of semantics, because the concept of prejudice itself implies harm. Indeed, in Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 (F.C.A.), Hugessen J.A., in affirming Canada Packers, treated "prejudice" and "harm" as synonymous (at para. 4). And, in response to an argument that, in order to come within paragraph (d), an applicant need only prove "interference" and not also "harm", Hugessen J.A. said (at para. 5) that, in the context of a section 44 application, "there must necessarily be an interference whose consequences will likely be damaging to that party."
[11] I do not understand counsel for the Attorney General to take issue with either the disjunctive nature of the two limbs of paragraph 20(1)(c), or the above analysis of Canada Packers and Saint John Shipbuilding. He does, however, vigorously dispute that it can be inferred from the one sentence in the Applications Judge's reasons on which counsel for BLJC rests his entire case that the Judge must have misinterpreted the Act in either of the ways that he alleged.
[12] Counsel for the Attorney General points out that, on a fair reading of the Judge's reasons as a whole, she was not persuaded that the evidence was sufficient to enable BLJC to discharge the onus of proving that the records fell within any of the exemptions in section 20 from the general duty to disclose imposed by the Access to Information Act. He points, particularly, to the following statement earlier in paragraph 22 of the Judge's reasons: " ... BLJC has failed to provide evidence that there exists a reasonable expectation of probable harm if the records in question are released." It is clear from the previous paragraph in the reasons that this conclusion related to both limbs of paragraph 20(1)(c). Consequently, counsel says, the word "harm" performs the same function as in Canada Packers and Saint John Shipbuilding, namely, as a collective noun for the different types of harm identified in paragraph 20(1)(c): financial loss or gain, and competitive prejudice.
[13] Counsel for the Attorney General also directed our attention to the last sentence in paragraph 22 of the Judge's reasons: "There exists, here, insufficient evidence to conclude that there is a basis to establish financial loss or prejudice to BLJC, or financial gain to a competitor." Having concluded that the evidence was insufficient to establish prejudice to BLJC's competitive position, how, counsel asked, could the Judge possibly have meant to make a contradictory finding in the previous sentence, namely that disclosure would prejudice the competitive position of the applicant?
[14] This Attorney General's position has the convincing ring of common sense. In my view, when the Judge referred in the last sentence of paragraph 22 to "financial loss or prejudice to BLJC", she should be understood as making an abbreviated reference to "prejudice to the competitive position" of BLJC, rather than to "financial loss". To my mind, it is more plausible that, in this concluding sentence, the Judge intended to name each type of harm contained in paragraph 20(1)(c), than redundantly to add "prejudice" as a synonym for loss.
[15] Nonetheless, it is more difficult to attribute to the disputed sentence a meaning consistent with the proper interpretation of paragraph 20(1)(c). Counsel for the Attorney General suggested that the sentence should be understood as a statement of the argument advanced on behalf of BLJC, rather than the Judge's own conclusion. I do not agree. I cannot believe that, without any clear indication, the Judge inserted a summary of counsel's argument in the middle of a paragraph that is full of the Judge's own findings and conclusions.
[16] Counsel's second submission was that the sentence could simply be ignored: whatever the Judge may have meant by it, it was unnecessary to her reasoning or the result. There is absolutely no indication elsewhere in her reasons that the Judge's interpretation of either the Act or the jurisprudence was erroneous. It is equally clear from her review of the evidence that she was not satisfied that the evidence was sufficient for the applicant to establish a reasonable probability that disclosure would cause any of the statutorily prescribed harms to BLJC, including prejudice to its competitive position.
[17] Despite his able argument, counsel for BLJC has not, in my opinion, discharged the onus of establishing that it should be inferred from the disputed sentence that the Judge misinterpreted the Act or the jurisprudence in either of the ways alleged. The sentence must be read in the entire context of the Judge's discussion of paragraph 20(1)(c). The reasons indicate that the Judge meant to conclude that, on the basis of the evidence, there was no reasonable expectation of probable prejudice to BLJC's competitive position as a result of disclosure. Nor do they support the view that the Judge misinterpreted the Act or the relevant jurisprudence.
[18] While I cannot be sure what the Judge did mean by the one sentence in question, this is not enough to justify allowing the appeal if I am not satisfied, as I am not, that it shows that the Judge must have erred in law in dismissing the application. Judges are surely to be given credit for not intending to contradict themselves in consecutive sentences, especially when, in all other respects, their reasons, including those dealing with paragraph 20(1)(c), are cogent and careful and, apparently, not thought by experienced counsel to provide any basis for an appeal.
[19] For these reasons, I would dismiss the appeal with costs.
"John M. Evans"
J.A.
"I agree
A.J. Stone J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-164-03
APPEAL FROM AN ORDER OF THE FEDERAL COURT OF CANADA DATED FEBRUARY 28, 2003, FEDERAL COURT OF CANADA FILE NO. T-2337-00
STYLE OF CAUSE: BROOKFIELD LEPAGE JOHNSON CONTROLS FACILITY MANAGEMENT
SERVICES v. MINISTER OF PUBLIC
WORKS AND GOVERNMENT
SERVICES CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 25, 2004
REASONS FOR JUDGMENT BY: Evans J.A.
CONCURRED IN BY: Stone and Sexton JJ.A.
DATED: May 31, 2004
APPEARANCES:
Mr. Gordon K. Cameron for the Appellant
Mr. Christopher Rupar for the Respondent
SOLICITORS OF RECORD:
Blake, Cassels & Graydon LLP for the Appellant
Ottawa, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada