SNC-Lavalin Inc. v. Canada ( Minister of Public Works )
T-916-92 / T-1133-92
MacKay J.
29/6/94
26 pp.
Applications to review decisions to release certain information relating to applicant -- Applicant submitting proposal for construction of fixed link between New Brunswick and P.E.I. -- Proposal containing some information relating to alternative solutions -- Preamble to each volume claiming confidentiality -- Also at issue consultant's evaluation report relating to proposed tunnel solution -- Proposal not accepted -- Department receiving two separate requests for records relating to (1) why tunnel idea dismissed in favour of bridge proposal; (2) data submitted by bridge consortiums -- Applicant objecting in writing to disclosure, relying on Access to Information Act, ss. 20(1), 27(1) -- PWC deciding to disclose information -- Application for s. 44 review of second request filed outside time limit therein -- Amended notice of motion and supplementary affidavit filed 15 months after notice of intention to disclose in first application -- Amended notice of motion including reference in motion for review to decision in regard to proposal in addition to decision to disclose record as to why idea of tunnel dismissed -- Seeking same relief as original notice of motion -- Not seeking leave to amend original notice of motion -- Respondent not objecting to amendment until hearing -- Whether notice of motion out of time; whether records exempt from disclosure -- Purpose of Access to Information Act to provide access to information, except for specified exceptional cases, in timely fashion -- Procedures established to deal with objections must provide reasonable but limited time for third party to object and for consideration of objections received, before final determination about disclosure -- Time limit fixed by s. 44(1) must be strictly applied to serve Act's main purpose -- Court not having discretion to extend time for filing, or to consider late application except in extraordinary case -- As neither application for extension of time nor argument exceptional case, late application dismissed -- Federal Court R. 303 providing basis for Court, in appropriate case, to admit amendments to applications -- Absence of provision in Act for extending time to file s. 44(1) application for review not bar to exercise of Court's discretion to permit either course, upon application, where necessary "to ensure proper working of that Act, and the better attainment of its objects" -- Court acting in accord with R. 5, may provide for extension of time, by analogy to what may do in regard to regular application for judicial review under Federal Court Act, s. 18.1(2) and R. 1614 -- Similarly in appropriate case, Court may allow amendment to original application under s. 44(1) by analogy to provisions in RR. 424, 427 -- Amended notice of motion not proper basis for considering review of decision to disclose proposal in absence of explanation of delay in filing amended application and absence of argument case extraordinary, exceptional -- In case decision to disclose properly before Court by amended notice of motion, Court considering substantive issue -- Proposal and evaluation report containing "financial, commercial, scientific or technical information," consistently treated as confidential by applicant, author respectively -- Application of standard for "confidential information" within s. 20(1)(b) as set out in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (F.C.T.D) -- Court not satisfied all information in proposal available only from applicant -- Some information qualifying as confidential as not available from sources otherwise accessible by public, but other portions accessible -- Report and proposal not exempt from disclosure pursuant to either s. 20(1)(c) or (d) -- Mere affirmation by affidavit disclosure "would undoubtedly result in material financial loss and prejudice" or "would undoubtedly interfere with contractual and other negotiations . . . in future business dealings," without further explanation, not demonstrating basis for "reasonable expectation of probable harm," standard enunciated in Canada Packers Inc. v. Canada (Minister of Agriculture), [1988] 1 F.C. 47 (C.A.) -- Respondent required pursuant to s. 25 to disclose any part of proposal not containing, and reasonably severable from any part containing information described in s. 20(1)(b) -- Severance of exempt and non-exempt portions should be attempted only when result reasonable fulfilment of purposes of Act -- Where severance resulting in release of minimal portions of information and resulting only in release of information otherwise available from published public sources, or where information left to be released not reasonable response to request for information in light of portions exempt, severance not reasonable, not required within s. 25 -- Volume 5, containing financial plan, specially treated by applicant as confidential -- Qualifying as confidential financial information within s. 20(1)(b), except published financial and annual reports of public companies -- Federal Court Rules, C.R.C., c. 663, RR. 2 (as am. by SOR/90-846, s. 1; SOR/92-43, s. 1), 5, 303, 421, 422, 424, 427 -- Access to Information Act, R.S.C., 1985, c. A-1, ss. 20(1)(b),(c),(d), 25 -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) (as am. by S.C. 1990, c. 8, s. 1), 18.1(2) (as enacted idem, s. 5), 44, 46 (as am. idem, s. 14; 1992, c. 1, s. 68).