|
Counsel for Petitioner |
Maureen E. Baird |
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Counsel for Respondent, The Information and Privacy Commissioner |
Susan E. Ross |
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Counsel for the Respondent, Attorney General of B.C. |
Nerys Poole |
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Counsel for Respondent, Translink |
Angela R. Westmacott |
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Counsel for the Respondent, The Vancouver Province |
Daniel W. Burnett & |
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Date and Place of Hearing: |
March 25-28, 2002 |
|
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Vancouver, BC |
I INTRODUCTION
[1] In July 2000, Marilyn Bell and Ann Rees, a
reporter with the Province newspaper, (the "Applicants") made
separate requests under the Freedom of Information and Protection of
Privacy Act, R.S.B.C. 1996. C. 165 (the "Act")
to the Greater Vancouver Transportation Authority ("Translink") for
access to certain records in the possession of that public body.
[2] The requests were for agreements between
Canadian Pacific Railway ("CPR") and West Coast Express, a subsidiary
of Translink. Translink determined that the following records were responsive
to the requests:
(a) the
Purchase of Services Agreement between CPR and BC Transit ("Purchase of
Services Agreement");
(b) the
Commuter-Rail Crewing Agreement ("Crewing Agreement"); and
(c) a one
page amendment to the Crewing Agreement
(collectively, the "Documents").
[3] Translink notified CPR, as an interested
party, about the access requests pursuant to s. 23 of the Act.
CPR opposed disclosure of any of the Documents on the basis that the documents
were confidential and contained information the release of which would
significantly harm its competitive position.
[4] After considering CPR's submissions,
Christopher Harris, Translink's Manager, Information and Privacy concluded that
he was required to release the records because the mandatory disclosure
exception in s. 21 of the Act did not apply.
[5] CPR filed a request for review of the public
body's decision to release the records under s. 52 of the Act.
The Commissioner's office issued a Notice of Written Inquiry in response to
CPR's request.
[6] CPR then raised two preliminary objections.
First, it argued that the Commissioner's adjudication of the inquiry gave rise
to bias and a reasonable apprehension of bias because of his previous
relationship as legal advisor to BC Transit and subsequently to Translink.
Second, CPR argued that Translink could not be a full participant in the
inquiry because it had made the decision to disclose which was under review.
[7] The Commissioner issued his decision with
respect to the two preliminary objections on February 28, 2001 (the
"Decision"). With respect to the objection on the basis of bias, he
did not disqualify himself but decided to delegate his authority to conduct an
inquiry to a delegate external to his office.
[8] By virtue of s. 49(1)(c) of the Act,
the functions of the Commissioner under s. 58 of the Act, and, in
particular, his power to issue orders, cannot be delegated. The Commissioner,
in referring the matter to a delegate, committed to adopt the recommendations
made by his delegate.
[9] With respect to the second objection, he
concluded that Translink had a statutory right to participate as a full party
in the inquiry.
[10] On March 2, 2001, the Commissioner signed a
formal delegation of his authority to conduct an inquiry under s. 56 of the Act
to Nitya Iyer (the "Delegate"). CPR renewed its objection to
Translink's participation in the inquiry.
[11] The Delegate issued her report on August 15,
2001 (the "Report"). She rejected CPR's objection to Translink's
participation and concluded that CPR had not established that the information
in the Documents was "supplied" within the meaning of s. 21(1)(b) or
that the disclosure of the records would give rise to significant harm to CPR's
position within the meaning of s.21(1)(c) of the Act. On the
basis that CPR had not brought itself within the ambit of s. 21, she
recommended that the Documents be released to the Applicants.
[12] On August 16, 2001, the Commissioner issued
Order 01-39, requiring Translink to disclose the Documents to the Applicants,
based upon the recommendations in the Report. CPR then commenced these review
proceedings.
II ISSUES
A. Preliminary
Issues
(1) the
admissibility in this judicial review of two affidavits which were not in
evidence before either the Commissioner or the Delegate;
(2) the
appropriate role of the Commissioner in this judicial review;
B. Bias
(1) whether there was a reasonable apprehension
of bias;
(2) if so,
did the delegation of the conduct of the inquiry cure the problem.
C. Alleged
Errors of the Delegate
(1) permitting
Translink to participate as a party to the inquiry;
(2) determining
that the information in the Documents was not "supplied" within the
meaning of s. 21(1)(b) of the Act;
(3) determining
that CPR would not suffer "significant harm" to its business interests
as defined in s. 21(1)(c)of the Act.
III STATUTORY
SCHEME
A. General
[13] The application must be considered against the
background of the purposes of the Act which are as set forth in
s. 2(1), to make public bodies more accountable and to protect personal
privacy. Section 2(1) provides:
2(1) The
purposes of this Act are to make public bodies more accountable
to the public and to protect personal privacy by
(a) giving
the public a right of access to records,
(b) giving
individuals a right of access to, and a right to request correction of,
personal information about themselves,
(c) specifying
limited exceptions to the rights of access,
(d) preventing
the unauthorized collection, use or disclosure of personal information by
public bodies, and
(e) providing
for an independent review of decisions made under this Act.
[14] The importance of the creation of an
enforceable right of access to information held by public bodies was commented
upon by Justice La Forest in Dagg v. Minister of Finance, [1997]
2 S.C.R. 433 at paras. 59-61:
As earlier set out, s. 2(1) of the Access to
Information Act describes its purpose, inter alia, as providing
"a right of access to information in records under the control of a
government institution as accordance with the principles that government
information should be available to the public". The idea that members of
the public should have an enforceable right to gain access to government-held
information, however, is relatively novel. The practice of government secrecy
has deep historical roots in the British parliamentary tradition; see Patrick
Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal
(1988), at pp. 61-84.
As society has become more complex, governments have
developed increasingly elaborate bureaucratic structures to deal with social
problems. The more governmental power becomes diffused through administrative
agencies, however, the less traditional forms of political accountability, such
as elections and the principle of ministerial responsibility, are able to
ensure that citizens retain effective control over those that govern them; see
David J. Mullan, "Access to Information and Rule-Making", in John D.
McCamus, ed., Freedom of Information: Canadian Perspectives (1981), at
p. 54.
The overarching purpose of access to information
legislation, then, is to facilitate democracy. It does so in two related ways.
It helps to ensure first, that citizens have the information required to
participate meaningfully in the democratic process, and secondly, that politicians
and bureaucrats remain accountable to the citizenry.
[15] Thus, in considering this matter it is
important to bear in mind that there is now a legal presumption of access to
information.
[16] Counsel for the Province submits by way of
background to the statutory scheme that the Act is a means by
which the taxpayers can investigate how their money is being spent and the
commitments given and received by public bodies on the taxpayers' behalf.
Transit issues and costs are a matter of significant public concern in this
province. The applicant, Ms. Rees, and the Province are seeking information for
the purpose of writing articles to inform the public.
[17] Counsel observes that access to information
has been found to constitute an essential component of the constitutional right
to freedom of expression, citing C.B.C. v. New Brunswick, [1996]
3 S.C.R. 480 per La Forest, J. at 497:
Essential to the freedom of the press to provide
information to the public is the ability of the press to have access to this
information. In Canadian Broadcasting Corp. v. Lessard, [1991] 3
S.C.R. 421, I noted that freedom of the press not only encompassed the right to
transmit news and other information, but also the right to gather this
information. At pp. 429-30, I stated:
Like Cory J., I take it as a given that freedom of
the press and other media is vital to a free society. There can be no doubt, of
course, that it comprises the right to disseminate news, information and
beliefs. This was the manner in which the right was originally expressed, in
the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms
before its expansion to its present form. However, the freedom to disseminate
information would be of little value if the freedom under s. 2(b) did not also encompass
the right to gather news and other information without undue governmental
interference.
...Cory J. stated in Canadian Broadcasting
Corp. v. New Brunswich (A.G.), [1991] 3 S.C.R. 459 at 475:
The media have a vitally important role to play in a
democratic society. It is the media that, by gathering and disseminating news,
enable members of our society to make an informed assessment of the issues
which may significantly affect their lives and well-being.
...As noted by Lamer J., as he then was, in Canadian
Newspapers Co. v. Canada (Attorney General) [1988] 2 S.C.R. 122, at p.
129: "Freedom of the press is indeed an important and essential attribute
of a free and democratic society, and measures which prohibit the media from
publishing information deemed of interest obviously restrict that freedom:. Similarly,
it may be said that measures that prevent the media from gathering that
information, and from disseminating it to the public, restrict the freedom of
the press". [emphasis added]
[18] Accordingly, he submits, where two
interpretations of a section are possible, the one to be preferred is the one
which will enhance the constitutional value of freedom of expression.
B. Bias
[19] With respect to the issue relating to bias,
the relevant section is s. 49 which provides that the Commissioner may delegate
his power to conduct an inquiry but not his order making power under s 58.
49(1) The
commissioner may delegate to any person any duty, power or function of the
commissioner under this Act, except
(a) the power
to delegate under this section,
(b) the power
to examine information described in section 12(1) and (2) or 15 (Cabinet
confidences and information harmful to law enforcement), and
(c) the
duties, powers and functions specified in section 41(1)(b), 43 or 58,
(2) A
delegation under subsection (1) must be in writing and may contain any
conditions or restrictions the commissioner considers appropriate,
...
58(1) On
completing an inquiry under section 56, the commissioner must dispose of the
issues by making an order under this section.
(2) If the
inquiry is into a decision of the head of a public body to give or to refuse to
give access to all or part of a record, the commissioner must, by order, do one
of the following:
(a) require
the head to give the applicant access to all or part of the record, if the
commissioner determines that the head is not authorized or required to refuse
access;
(b) either
confirm the decision of the head or require the head to reconsider it, if the
commissioner determines that the head is authorized to refuse access;
(c) require
the head to refuse access to all or part of the record, if the commissioner
determines that the head is required to refuse access.
C. Standing of Translink
[20] The sections of the Act that are
relevant to the question of the standing of Translink are sections 54 and 56
which provide:
54 On receiving a request for a
review, the commissioner must give a copy to
(a) the head
of the public body concerned, and
(b) any other
person that the commissioner considers appropriate.
...
56(1) If the matter is not
referred to a mediator or is not settled under section 55, the commissioner
must conduct an inquiry and may decide all questions of fact and law arising in
the course of the inquiry.
(2) An inquiry under subsection
(1) may be conducted in private.
(3) The person who asked for the
review, the head of the public body concerned and any person given a copy of
the request for a review must be given an opportunity to make representations
to the commissioner during the inquiry.
(4) The commissioner may decide
(a) whether
representations are to be made orally or in writing , and
(b) whether a
person is entitled to be present during or to have access to or to comment on
representations made to the commissioner by another person.
(5) The person who asked for the
review, the head of the public body concerned and any person given a copy of
the request for a review may be represented at the inquiry by counsel or an
agent.
(6) An inquiry into a matter under
review must be completed within 90 days after receiving the request for the
review.
D. Exceptions
[21] The Act also stipulates certain
circumstances in which disclosure may or must be refused. In the present case,
which concerns a mandatory exception, the relevant exception is that found in
s. 21(1)(a)(ii), (b), and (c)(i) which provides:
21(1) The head of a public body
must refuse to disclose to an applicant information
(a) that
would reveal
(ii) commercial,
financial, labour relations, scientific or technical information of a third
party,
...
(b) that is
supplied implicitly or explicitly, in confidence and
(c) the
disclosure of which could reasonably be expected to
(i) harm
significantly the competitive position or interfere significantly with the
negotiating position of the third party,
IV PRELIMINARY
ISSUES
A. Admissibility
of Fresh Evidence
[22] CPR seeks to introduce two affidavits that do
not form part of the record that was before either the Commissioner or his
Delegate.
[23] The first, the affidavit of Don Barnhardt,
sworn September 17, 2001, is submitted with respect to the issue of the
apprehension of bias. Counsel submits that the evidence in this affidavit,
relating as it does to the Decision, did not exist prior to the Decision. It is
adduced as extrinsic evidence in support of the allegation of bias in response
to concern expressed by the Court of Appeal with respect to allegations of bias
made without such evidence, see Adams v. British Columbia (Workers'
Compensation Board) (1989), 42 B.C.L.R. (2d) 228 (C.A.). It was also
adduced to provide the respondents with notice of the concerns relating to the
apprehension of bias which are said to arise from the Decision itself.
[24] The respondents submit that the evidence is
inadmissible, being made up of either factual matters that are already part of
the record or the opinions of the deponent which are not admissible evidence.
These matters should properly have been made as submission of counsel. They do
not constitute extrinsic evidence in support of the allegations as contemplated
by Adams, supra.
[25] Having reviewed the affidavit, I am satisfied
that it is not admissible in these proceedings. I agree with the submissions
with respect to admissibility made by the counsel for the respondents.
[26] I have, however, considered the additional
concerns with respect to an apprehension of bias that are said to arise from
the Decision as a submission of counsel in relation to the issue of the
reasonable apprehension of bias.
[27] The second affidavit is the affidavit of Don
Barnhard sworn on October 29, 2001. It sets out a number of summaries of press
reports and one press clipping including statements made by senior executives
of West Coast Express, a subsidiary of Translink, which indicate the desire of
West Coast to have the contents of the Documents disclosed. The reports provide
some detail with respect to a rate dispute between CPR and West Coast Express
concerning the commuter rail line in the Lower Mainland. The evidence is
offered as relevant with respect to Translink's standing before the Commissioner
and his Delegate and to the weight that should be given to Translink's evidence
in these proceedings.
[28] The respondents submit that there was evidence
before the Delegate with respect to the fact of a rate dispute between CPR and
West Coast Express. They submit that the evidence in the second affidavit is
irrelevant and, accordingly, inadmissible with respect to the issue of
Translink's standing which, they submit, is a matter of statutory construction.
[29] To the extent that the evidence is submitted
as going to the weight that should be given to Translink's evidence, it is
submitted that that is an allegation of error of law on the face of the record.
CPR is not entitled to seek to establish an error on the face of the record by
supplementing the evidence, see Greater Vancouver Mental Health Service
Society v. British Columbia Information (Information and Privacy Commissioner),
[1999] B.C.J. No. 198 (S.C.), at para. 42; Morlacci v. Minister of
Energy, Mines and Petroleum Resources, [1994] B.C.J. No. 3301 (S.C.),
aff'd., [1997] B.C.J. No. 2045 (C.A.) at paras. 28-33; Ontario Hydro v.
Ontario (Information and Privacy Commissioner), [1996] O.J. No.4196
(Ont. Div. Ct.); Riches v. British Columbia (Human Rights Commission),
[1999] B.C.J. No. 2556 (S.C.).
[30] CPR submits that the test for fresh evidence
on a judicial review is that set out in Eamor v. Air Canada Ltd.,
[1998] B.C.J. No 344 as follows:
(1) The
evidence should generally be admitted if, by due diligence, it could have been
adduced at trial provided that this general princi0ple will not be applied as
strictly in a criminal case as in a civil case.
(2) The
evidence must be relevant in the sense that it bears upon a decisive or
potentially decisive issue in the trial.
(3) The
evidence must be credible in the sense that it is reasonably capable of belief,
and
(4) It must
be such that if believed it could reasonably, when taken with the other
evidence adduced at trial, be expected to have affected the results.
Eamor v. Air Canada Ltd., [1998] B.C.J. No. 344
(B.C.S.C.) at paragraph 4
[31] Even on this test, which is not accepted as
the appropriate test by the respondents, the evidence, in my view is not
admissible. Exhibit A provides details with respect to the rate dispute of
which CPR was one party. It cannot be said that such evidence was not available
to CPR at the time of the proceedings below. Exhibit B predated the Decision
and the Report. It cannot be said that this evidence was not available to CPR
at the time of the proceedings below. Exhibits C and D repeat the basic
position of West Coast in the rate dispute and sets out the positions the
parties have taken with respect to these proceedings. The position of West
Coast in the rate dispute was certainly known to CPR. The position of the
parties with respect to these proceedings is not evidence.
[32] The balance of the exhibits are clippings and
statements issued after the date of the Report. In particular, this evidence
consists of statements by the Chief Executive Officer of West Coast expressing
the view that the public would be outraged if they were aware of the track
rates charged by CPR and that the public should have access to the agreements.
[33] In my view, this evidence, while it may
satisfy the due diligence requirement, fails to satisfy the criteria with
respect to relevance and weight. The evidence is not relevant to the question
of Translink's standing, which is a matter of statutory construction and would
not, in my view, have affected the result in the proceedings before the
Delegate. Accordingly, the evidence is not admitted.
B. Role of the
Commissioner in this Proceeding
[34] CPR submits that the role of the Commissioner
in this judicial review should be limited to:
(a) an
explanatory role with reference to the record; and
(b) the
question of whether the Commissioner has jurisdiction under the Act
to delegate the conduct of an inquiry.
[35] The Commissioner ought not, in CPR's
submission, to have a role in this review with respect to:
(a) his own bias;
(b) the
appropriateness of his purported delegation and subsequent order making;
(c) the
appropriate role of Translink;
(d) the
standard of review;
(e) whether
s. 21 is applicable to the documents;
(f) the
evidence to be considered on this judicial review.
[36] CPR relies
upon Northwestern Utilities Ltd. v. Edmonton (City) (1979), 89
D.L.R. (3d) 161 (S.C.C.) and Bell Canada v. C.T.E.A., [1997] 143
F.T.R. 24 in support of its position.
[37] Counsel for the Commissioner submits that it
is appropriate for the Commissioner, in the circumstances of this proceeding,
to make submissions on:
(a) the Act
and the record;
(b) the standard
of review;
(c) questions
of jurisdiction, and in particular:
(i) Translink's
standing in the inquiry;
(ii) the
Commissioner's jurisdiction to delegate the inquiry function;
(iii) the
Commissioner's jurisdiction to make an order under s. 58 after he had delegated
the inquiry function under s. 56;
(d) fairness
issues that arise out of the statutory provisions or out of institutional
practices;
(e) where
underlying evidence is known to the Commissioner or the Delegate and is unknown
to other participants.
[38] I am satisfied that the submissions of the
Commissioner with respect to the standard of review and questions of
jurisdiction are supported by the CAIMAW v. Paccar of Canada Ltd.,
[1959] 2 S.C.R. 983 decision and by Bibeault v. McCaffrey, [1984]
1 S.C.R. 176. Support for the submissions with respect to fairness issues and
circumstances in which the evidence is known to the Commissioner but not to
other parties is found in Canada (A.G.) v. Canada (Human Rights Tribunal),
[1994] F.C.J. No. 300; Re Consolidated-Bathhurst and International
Woodworkers of America (1985), 20 D.L.R. (4th) 84 (Ont. Div.
Ct.); Bibeault, supra; Ontario (Workers'
Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner)
(1998), 41 O.R. (3d) 1 C.A.
[39] I find that the Commissioner has standing in
each of the subjects it has identified, consistent with its submissions. I note
that while this issue is important, in practical terms in relation to the
outcome of this case, the matter was somewhat academic since the other
respondents, and in particular, the solicitor for the Province, adopted the
submissions made by the Commissioner.
IV BIAS
A. Did the
Commissioner lose jurisdiction to conduct the inquiry, to delegate the conduct
of the inquiry, or to issue the Order by reason of the reasonable apprehension
of bias?
[40] This issue goes to the Commissioner's
jurisdiction under the Act. The appropriate standard of review is
correctness.
[41] CPR objects to the Commissioner's
participation in the inquiry on three grounds:
(a) the
Commissioner's previous professional relationship with Translink and Mr.
Harris;
(b) the fact
that the Commissioner had previously advised Translink with respect to a question
at issue in these proceedings, namely, "what degree of harm to the
competitive position of a third party is significant harm?";
(c) the fact
that on two prior occasions in 2000 the Commissioner had disqualified himself
from conducting inquiries in matters involving B.C. Transit (now Translink),
relying on Valtchano v. Johnson, [1994] N.J. No. 205 (Nfld.
S.C.).
[42] It also relies upon certain language used by
the Commissioner in the Decision, which it submits raise additional concerns
about his ability to bring an impartial mind to his duties under the Act.
[43] CPR relies upon the decision in Newfoundland
Telephone. Co. v. Newfoundland (Board of Commissioners of Public Utilities
(1992), 4 Admin. L.R. (2d) 121 (S.C.C.) in support of the proposition that the
effect of a finding of reasonable apprehension of bias is that the
decision-maker's decision and everything flowing from it are null and void. In
this case, it submits, that means that the Commissioner's appointment of the
Delegate, the Delegate's Report and the Order are all null and void.
[44] CPR also submits that the Commissioner
improperly fettered his discretion in determining, in advance, to accept,
without modification, the Delegate's Report.
[45] Finally, CPR submits that, because the
legislature did not provide for the circumstance where the Commissioner is
unable to act, by virtue of bias or circumstances creating the reasonable
apprehension of bias, there is a lacuna in the statutory scheme. The result, it
submits, is a stalemate which has the effect of preventing disclosure of the
documents at least until the Act is amended since no one can rule
on the review.
[46] The Commissioner responded in the Decision to
the allegations as follows:
CPR alleged actual and reasonably apprehended bias,
but no grounds for actual bias had been advanced. It was therefore only
necessary to discuss the allegation of reasonable apprehension of bias.
A former professional relationship will not normally
give rise to a reasonable apprehension of bias if there has been a reasonable
lapse of time following the association and the prior association did not
relate to the matter now in issue before the Commissioner.
The Commissioner (and the law firm of which he was a
partner) had had no involvement with the contracts to which access was being
sought; he had had no direct involvement and acquired no confidential
information about the matter now in issue.
There is no strict rule as to how long a cooling off
period is required. Approximately 19 months had elapsed since the Commissioner's,
by law, one-time appointment to his office and this was a sufficient cooling
off period given the nature and structure of his appointment and the
circumstances of this case.
The fact that the Commissioner had recused himself
from two BC Transit inquiries during the first 12 months of his single term
appointment did not raise a new or continuing apprehension of bias on his part.
[47] He determined to step aside and delegate
consideration of the matter in the interest of achieving a speedy resolution of
the matter. The applicant's interest, he observed, does not lie in being tied
up in a case addressing the propriety of the decision maker conducting the
inquiry. He reasoned that any apprehension of bias would not extend to his
delegate and that the doctrine of necessity would permit him to make the order
under s. 58.
[48] In the proceedings before me, the Respondents
made submissions which adopted and amplified the Commissioner's observations.
Counsel for the Commissioner did not make submissions with respect to the
question of whether there was an apprehension of bias.
[49] The test for the apprehension of bias, which
has been accepted in subsequent jurisprudence, is that stated by Justice
Grandpre in Committee for Justice and liberty v. Canada (National Energy
Board, [1978] 1 S.C.R. 369:
...the apprehension of bias must be a reasonable
one, held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. In the words of the
Court of Appeal, that test is "what would an informed person, viewing the
matter realistically and practically - and having thought the matter through -
conclude.
...
The grounds for this apprehension must, however, be
substantial and I entirely agree with the Federal Court of Appeal which refused
to accept the suggestion that the test be related to the "very sensitive
or scrupulous conscience.
[50] Although the test must be applied to the
circumstances of the particular case, there are some useful general principles
which can be drawn from the cases, including:
(a) the onus
of demonstrating apprehension or the reasonable apprehension of bias lies with
the person who is alleging its existence, see R. v. S.(R.D.),[1997]
3 S.C.R. 484;
(b) there is
a presumption of regularity, a presumption that the member will act fairly,
honestly, and impartially, see Zundel v. Citron (C.A.), [2000] 4
F.C. 225 (F.C.A.);
(c) members
of tribunal are appointed for their prior knowledge and expertise. Prior
experience in dealing with the subject matter or issue will not found a
reasonable apprehension of bias, see Committee for Justice and Liberty,
supra; R. v. R.(D.S.), supra;
(d) a former
professional relationship will generally not give rise to a reasonable
apprehension of bias if there has been a reasonable lapse of time following the
association and the prior association did not relate to the matter in issue,
see Zundel, supra, Committee for Justice and liberty,
supra, Fogel v. Canada (1999), 164 F.T.R. 99 (F.C.T.D.); Flamborough
(Town) v. Canada (National Energy Board) (1984), 55 N..R.
95 (Fed. C.A.).
[51] I have concluded that the circumstances in
this case, given the nature of the Commissioner's functions and the time
limited nature of his appointment, are not such as to give rise to a reasonable
apprehension of bias. The Commissioner had no involvement in this matter prior
to assuming his office. His professional relationship with Translink had ended
19 months previously. There has been, in my view, an appropriate "cooling
off period".
[52] The two earlier occasions when he did
disqualify himself occurred much earlier in his tenure. Now that an appropriate
cooling off period has elapsed they no longer constitute a factor giving rise
to a reasonable apprehension of bias.
B. In the
Alternative, did the delegation of the inquiry function to the Delegate cure
the problem?
[53] In the event that I am wrong in that
conclusion, I will address the balance of the objections raised by counsel for
CPR in this regard. In my view, even if there was a reasonable apprehension of
bias, the delegation of the conduct of the inquiry to the Delegate was not
tainted by it. I do not believe that the decision in Newfoundland
Telephone Co., supra, was ever intended to produce such a result
as urged upon me by counsel for CPR, which would, in my view, be to paralyze
the work of the office every time an allegation of bias was raised, see Flamborough,
supra.
[54] I am fortified in this conclusion by a
consideration of the nature of bias. Bias is, "an attitude of mind unique
to an individual", Bennett v. British Columbia (Securities
Commission) (1992), 94 D.L.R. (4th) 339 (B.C.C.A.) at 349.
There is no suggestion of any bias or the reasonable apprehension of bias on
the part of the Delegate.
[55] With respect to the issue concerning fettering
of discretion, I am in agreement with the submissions of the respondents that
the question does not arise because, given the conclusions contained in the
Report, the Commissioner had no discretion with respect to his order under s.
58.
[56] I turn then to the final issue, whether there
is a lacuna in the legislation. I agree with the submissions of the respondents
that the petitioner's argument must fail for two reasons. First, the common law
rule against bias is subject to the express or necessarily implied requirements
of a statutory scheme, see Ocean Port Hotel Ltd. v. B.C. (General
Manager, Liquor Control and Licensing Branch), [2001] S.C.C. 52; Brosseau
v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose
v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814.
[57] Here the Act requires the
Commissioner to issue orders under s. 58. The requirement to issue the order
necessarily overrides the common law requirements for impartiality. I do not
agree with CPR's submission that the situation here is voluntary and not
arising from the legislation. In my view, it arises from the fact that the
legislation does not permit delegation of the order making power under s. 58.
[58] In addition, the operation of the doctrine of
necessity leads to the same result. The doctrine of necessity operates to
prevent a frustration of the statutory provisions in circumstances such as
these where the only adjudicator is disqualified, see Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1998] 1 S.C.R. 3; Finch v. Association of Engineers and Geoscientists
(British Columbia) (1996), 18 B.C.L.R. (3d) 361 (CA).
[59] Finally, I do not accept CPR's submission that
this falls into one of the exceptions to the doctrine; namely, that the
application of the doctrine would involve positive and substantive injustice.
By virtue of the delegation of the inquiry to the Delegate, CPR was afforded a
hearing untainted by any apprehension of bias. In addition, it has the
opportunity, which it has utilized, of seeking judicial review.
[60] In summary, I find that there was no
reasonable apprehension of bias in the circumstances of this case but that in
any event, any apprehension that there was cured by the delegation of the
inquiry to the Delegate.
V ALLEGED ERRORS
BY THE DELEGATE
A. Did the
Delegate err in permitting Translink to participate as a party to the inquiry?
[61] The parties are in agreement that the
appropriate standard of review with respect to this issue is correctness
because the determination is based upon the interpretation of the Act.
[62] CPR objects to Translink having been granted
full party status because, in its submission::
(a) the Act
does not require it and s. 56(4) gives a discretion to the Commissioner in that
regard;
(b) the Act
requires Translink to apply the disclosure exceptions in a neutral fashion
without any vested interest in the outcome;
(c) it is
inappropriate for the public body to participate as an advocate in
circumstances in which it has a vested interest in the outcome.
[63] Recent cases arising from the Federal Access
to Information legislation have established that public bodies have standing as
full parties before the Commissioner and on judicial review applications, see Desjardins,
Ducharme, Stein, Monast v. Canada (Dept. of Finance), [1999] 2 F.C. 381
(F.C.T.D.); Group dorchester/St-Damase, Cooperative Avicole v. Canada (
Agriculture and Agri-Food), [1999] F.C.J. No. 1987 (F.C.T.D.); Aliments
Prince foods Inc. v. Canada (Dept. of Agriculture and Agri-Food Canada),
[1999] F.C.J. No 247 (F.C.T.D.).
[64] I find that the Act contemplates
that the public body will be a full participant in the review and inquiry
process. Section 54(a) provides that the Commissioner must give a copy of the
Request for Review to the public body. Section 56(3) provides that the head of
the public body concerned must be given an opportunity to make representations
during the inquiry. I find that s. 56(4)(b) creates a discretion with respect
to a party's access to and ability to respond to another party's
representations. It does not create a discretion to exclude or limit the public
body's ability to make representations in the manner submitted on behalf of
CPR.
[65] I find further that the Act
contemplates numerous situations in which the public body will have a vested
interest in the decision with respect to disclosure. The existence of such an
interest in any particular case does not, in my view, in any way limit the
standing of the public body. Nor does it constitute a basis upon which to limit
the weight to be given to that public body's submission on judicial review as
contended by CPR anymore than does CPR's vested interest in the outcome.
[66] Finally, I note that, because of the nature of
the documents, and the provision for in-camera hearings and submissions, the
public body will frequently be, as it was in the case at bar, the "only
effective presenter of the other side of the case".
[67] This underscores the importance of the full
participation of the public body in the inquiry and in any subsequent judicial
review process.
[68] In summary, I find that the Delegate did not
err in granting full party standing to Translink.
B. Did the
Delegate err in concluding that the information in the Documents had not been
"supplied" within the meaning of s. 21(1)(b) of the Act?
[69] The appropriate standard of review is
reasonableness, see Jill Schmidt Health Services Inc. v. British Columbia
(Information and Privacy Commissioner) supra.
[70] Counsel for CPR submits that the Delegate
erred in her interpretation of the meaning of the term " supplied".
In particular, counsel submits that the Delegate erred in requiring the
disputed information to be by nature immutable and non-susceptible to change in
order to be considered "supplied" within the terms of the section.
This interpretation, it was submitted, is contrary to the decision of Justice
Satanove in Jill Schmidt, supra.
[71] CPR also submits that the Delegate failed to
recognize the adequacy of the evidence adduced by CPR in the inquiry, did not
adequately consider, and misinterpreted that evidence.
[72] The Delegate noted that, for purposes of the
section, information that is contractual is negotiated, not supplied, despite
having been initially drafted or delivered by a single party, see Order 01-20.
[73] She then made reference to an exception to
this rule, stating:
[45] Information
that might otherwise be considered negotiated nonetheless may be supplied in at
least two circumstances. First, the information will be found to be supplied if
it is relatively "immutable" or not susceptible of change. For
example, if a third party has certain fixed costs (such as overhead or labour
costs already set out in a collective agreement) that determine a floor for a
financial term in the contract, the information setting out the overhead cost
may be found to be "supplied" within the meaning of s. 21(1)(b). To
take another example, if a third party produces its financial statements to the
public body in the course of its contractual negotiations, that information may
be found to be "supplied". It is important to consider the context
within which the disputed information is exchanged between the parties. A bid
proposal may be "supplied" by the third party during the tendering
process. However, if it is successful and is incorporated into or becomes the
contract, it may become "negotiated" information, since its presence
in the contract signifies that the other party agreed to it.
[46] In other
words, information may originate from a single party and may not change significantly
- or at all - when it is incorporated into the contract, but this does not
necessarily mean that the information is "supplied". The intention of
s. 21(1)(b) is to protect information of the third party that is not
susceptible of change in the negotiation process, not information that was
susceptible to change but, fortuitously, was not changed. In Order 01-20,
Commissioner Loukidelis rejected an argument that contractual information
furnished or provided by a third party and accepted without significant change
by the public body is necessarily "supplied" within the meaning of s.
21(1) (at para. 93).
[74] With respect to this first exception, the
Delegate considered the decision in Jill Schmidt and then
concluded:
[49] In my
view, it does not follow from the fact that information initially provided by
one party was eventually accepted without significant modification by the other
and put into their contract that the information is "supplied"
information. If so, the disclosure or non-disclosure of a contractual term
would turn on the fortuitous brevity of finessing of negotiations. Rather, the
relative lack of change in a contractual term, along with the relative
immutability and discreteness of the information it contains are all relevant
to determining whether the information is "supplied" rather than
negotiated. Evidence that a contractual term initially provided or delivered by
the third party was not changed in the final contract is not sufficient in
itself to establish that the information it contains was "supplied."
She also addressed a second exception, namely, that
the otherwise negotiated information is such that its disclosure would allow a
reasonably informed observer to draw accurate inferences about underlying
confidential information that was "supplied" by the Third Party, that
is, information not expressly contained in the contract.
[75] CPR's interpretation focuses on whether the
information remained unchanged in the contract from the form in which it was
originally supplied on mechanical delivery. The Delegate's interpretation
focuses on the nature of the information and not solely on the question of
mechanical delivery. I find that the Delegate's interpretation is consistent
with the earlier jurisprudence, see for example Order 26-1994:
1. Where the third party has provided original or
proprietary information that remains relatively unchanged in the contract;
and...
[76] Further, I do not consider that the Delegate
elevated immutability to a test. Rather, it is clear from her reasons that she
considered it, legitimately, in my view, to be one of the factors to be
considered in assessing whether the information is "supplied" in the
terms of section 21. I do not find her interpretation to be unreasonable.
[77] The Delegate undertook a lengthy and
meticulous examination of the evidence adduced by the parties. Her conclusion
was that CPR had failed to bring itself within either of the two exceptions.
Accordingly, she concluded:
CPR's evidence on the question of supply falls short
of what is required to establish that the information in issue was
"supplied" within the meaning of s. 21(1)(b).
[78] Having carefully reviewed her Report, together
with the evidence and submissions, I can find no material evidence that was
overlooked or misapprehended by the Delegate. It is for the Delegate to weigh
the evidence, I do not find either her review, or her conclusion in that regard
to be unreasonable.
C. Did the
Delegate err in concluding that CPR would not suffer "significant
harm" to its business interests as defined in s. 21(1)(c) of the Act?
[79] With respect to the standard of review,
counsel for the Commissioner submits that the appropriate standard is
reasonableness to the extent to which the determination is a question of mixed
fact and law and clearly wrong, to the extent to which the matter involves a
clear question of fact, see University of British Columbia v. Berg,
[1993] 2 S.C.R. 353; Ross v. New Brunswick School District No. 15,
[1996] 1 S.C.R. 826; Re McInnes and Simon Fraser University et al
(1982), 140 D.L.R. (3d) 694 (B.C.S.C.).
[80] Counsel for CPR submits that because the
determination involves a situation of significant harm, the standard should be
higher, closer to correctness. No support was cited in support of this
proposition. I have concluded that there is no basis for such a "bump
up" in the standard of review.
[81] The standard of review is reasonableness;
namely, whether the Delegate's finding is unreasonable in terms of being
unsupported by any evidence or defective in terms of the logical process by
which the finding was reached.
[82] CPR submits that the Delegate erred in
"failing to adequately consider and properly apply the uncontradicted
evidence adduced by CPR." It submits further that it is not possible for
CPR to establish with precision the nature of the harm that it would suffer. It
submits that "the fact that these senior officers, knowledgeable and
experienced in this competitive, complex and technological industry are
prepared to swear to the magnitude of harm that would be suffered is, ...in the
absence of any evidence to the contrary, compelling and should suffice for the
purpose of the Act."
[83] My first observation is that CPR is inviting
me to review the evidence and to substitute my own conclusions for that of the
Delegate. That, however, is not the appropriate role for the court. Rather, the
Delegate's Report is to be reviewed to see if there was no basis in the
evidence for the decision or if it was contrary to the overwhelming weight of
the evidence or if there was a fundamental flaw in the reasoning, see Director
of Investigation and Research v. Southam (1997), 144 D.L.R. (4th)
1 S.C.C. per Iacobucci J. at pp. 19-21.
[84] My second observation is that it cannot be
said that the evidence of CPR is completely uncontradicted. In any event,
pursuant to s. 57(3)(b) of the Act, CPR, as the Third Party,
bears the burden of proof of establishing "significant harm". The
evidence of such harm is likely to be uniquely within the knowledge of the
Third Party, making it unlikely that there will by evidence to directly contradict
that offered by the Third Party. Hence, the appropriate question is not whether
the evidence is contradicted or not, but whether it is sufficient.
[85] The Delegate observed that CPR's evidence was
similar to that found to be insufficient by the Commissioner in Order 00-09.
She then concluded:
77 PB's affidavit is not long, and
it does not specifically address most of the information in the disputed
records. While PB states the nature of the harm that would follow disclosure
and related that harm to disclosure of some specific items of information in
the Services Agreement, PB does not explain how disclosure of that information,
much less the rest of the agreement, would lead to the harm described.
Similarly, PB's evidence of harm flowing from disclosure of the Crewing
Agreement identifies some items in that agreement and asserts that their
disclosure will cause significant harm to CPR's negotiating and competitive
position relating to future crewing bids and in labour relations. Again PB does
not say how disclosure of the identified information, or the other information
in the agreement, would lead to the harm described.
78 PB's affidavit asserts that
part of one of the agreements contains discrete and proprietary business
information disclosure of which would allow the calculation of certain CPR
costs. It is not clear to me, from reading the indicated part of the agreement,
how such costs could be calculated. Nor is there evidence to establish CPR's
claims that the disclosure of such costs would result in significant harm to
its competitive or negotiating positions, or that the contract information from
which it is said sensitive CPR costs might be derived is of a proprietary
nature.
79 CPR's evidence is also that the
agreements in issue in this inquiry differ in unspecified ways from other
commuter agreements, so that if those differences are disclosed, they would be
used to CPR's disadvantage in negotiations for contracts with other commuter
authorities. CPR's evidence on this point is both vague and speculative and
does not satisfy s. 21(1)(c)(i).
80 Disclosure of the items of
information objected to in the affidavit of PB would certainly put more
information in the hands of those with whom CPR is currently negotiating, or
expects to negotiate with in the future, as well as in the hands of its
competitors. However, it does not necessarily follow that the information would
be useful in negotiations or competitively, or so useful as to interfere
significantly with CPR's negotiating position or significantly harm its
competitive position. For example, the terms of the agreements may reflect the
particular geography, population, track and track facilities, and other
features of the West Coast Express service, so that they are quite specialized
and disclosure will not be of significant value to others. This is a point made
by the Applicants in their initial submission; it is not adequately answered by
CPR.
81 It is not self-evident that
disclosure of all or part of the disputed records could reasonably be expected
to cause significant harm to CPR. There is no evidence of the comparability of
the commuter rail services for which CPR is currently negotiating (or for which
it expects to negotiate in future) to the West Coast Express service. From the
evidence provided, it is not possible to determine how useful (or harmful to
CPR) disclosure of information in the agreements would be to CPR's negotiations
or to CPR's competitors. Nor can I determine how useful (or harmful to CPR)
information in the agreements would be useful to parties in future negotiations
with CPR over shipping rates for unspecified distances and locations.
82 Finally, with respect to the
risk of significant harm in labour negotiations, CPR's submission is that its
future negotiating position will be harmed because disclosure of the Crewing
Agreement will allow the union to derive certain information valuable to the
union's negotiating position and harmful to CPR's position. While I accept that
the type of information involved might strength the union's negotiating
position, the evidence is insufficient to establish significant interference
with CPR's negotiating position. Absent evidence as to the scope of CPR's
collective agreements and when CPR will be involved in labour negotiations, it
is not possible to determine how relevant CPR's profits on the Crewing
Agreement will be or what significance information from the Crewing Agreement
would have for labour negotiations.
83 I conclude that CPR has not
established that disclosure of all or part of the disputed records presents the
risks of harm described in s. 21(c)(i).
[86] I have reviewed the evidence, the Report and
the submissions. The Delegate in my view had regard to the appropriate question
and undertook an appropriate review of the evidence that was before her. She
concluded that the evidence was insufficient to support a finding of
significant harm. Her conclusion cannot be said to be unreasonable and I am
unable to conclude CPR has established that she erred in this regard.
VI CONCLUSION
[87] CPR has failed to establish any error in the
Report of the Delegate or in relation to the issuance of the Order under s. 58
of the Act. Accordingly, the petition is dismissed.
"C. Ross, J."
The Honourable Madam Justice C. Ross