T-2160-87
Ottawa Football Club, a division of CFRA Lim
ited, Argonaut Football Club Inc., Hamilton Foot
ball Club, a division of Maple Leaf Gardens Lim
ited, Winnipeg Football Club, Saskatchewan
Roughrider Football Club, Stampeder Football
Club Limited, Edmonton Eskimo Football Club,
and B.C. Lions Football Club, who together form
an unincorporated association known as the
Canadian Football League (Applicants)
v.
Minister of Fitness and Amateur Sports and
David Shoalts (Respondents)
INDEXED AS: OTTAWA FOOTBALL CLUB V. CANADA (MINISTER
OF FITNESS AND AMATEUR SPORTS)
Trial Division, Strayer J.—Ottawa, December 21,
1988 and January 9, 1989.
Access to information — Document submitted confidentially
and voluntarily to Government for action involving legislation
or appropriations — Proposed disclosure of part of material
— Act applying to all information or records in custody of
Government, no matter how or on what terms Government
obtained control thereof — Document not containing financial
or commercial information of confidential nature — No
reasonable expectation of probable harm — Severability.
Practice — Costs — Unsuccessful party having failed to act
diligently by bringing matter on for hearing — Failing to file
record in timely fashion — Ordered to pay costs on solicitor-
client basis.
In April 1986, the Canadian Football League (CFL) submit
ted to the Government a brief containing information about the
CFL and proposing action possibly involving legislation or
appropriations or both. Pursuant to a request for information
under the Access to Information Act, the Minister of Fitness
and Amateur Sports decided to disclose part of the material
originally submitted by the CFL. This is a section 44 applica
tion to review that decision.
Held, the application should be dismissed.
Even though the material was marked "confidential" and
was submitted voluntarily, it was nevertheless information sub
ject to the right of access referred to in subsection 2(1) of the
Act. Regardless of how, or on what terms the information or
record came into the hands of the Government, the Act applies
to any information or record in the Government's custody.
The document, in its expurgated version, does not contain
financial or commercial information of a confidential nature
within the meaning of paragraph 20(1)(b) of the Act. The
applicants have not established that the expurgated version is
by its nature confidential. When a person or body approaches
the Government for special action in its favour, it is not enough
to state that the submission is confidential to make it so.
Acceptance of such a principle would undermine the purpose of
the Act.
The applicants have not established a reasonable expectation
of probable harm. They therefore cannot invoke paragraph
20(1)(c) of the Act. Nor have they established that the expur
gated material cannot "reasonably be severed from" the pro
tected material.
Since the CFL had not acted in a diligent manner in bringing
the matter on for hearing and had failed to file a proper record
in a timely fashion as required by the Rules, the applicants are
ordered to pay the respondents' costs on a solicitor-client basis.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Access to Information Act, S.C. 1980-81-82-83, c. I11,
Schedule I, ss. 2(1), 4(1), 20(1 )(6),(c), 25, 44(3), 47.
Federal Court Rules, C.R.C., c. 663, R. 321.1 (as added
by SOR/88-22l, s. 7).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Packers Inc. v. Canada (Minister of Agricul
ture), [1989] I F.C. 47 (C.A.); Maislin Industries Lim
ited v. Minister for Industry, Trade and Commerce,
[1984] I F.C. 939 (T.D.).
COUNSEL:
Donald B. Houston for applicants.
Barbara A. Mcisaac for respondent Minister
of Fitness and Amateur Sports.
Peter M. Jacobsen for respondent David
Shoalts.
SOLICITORS:
Stikeman, Elliot, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent Minister of Fitness and Amateur
Sports.
Paterson, MacDougall, Toronto, for respon
dent David Shoalts.
The following are the reasons for order ren
dered in English by
STRAYER J.:
INTRODUCTION
This is an application under section 44 of the
Access to Information Act' for a review of a
decision of the respondent Minister to disclose part
of a record consisting of material originally sub
mitted to the respondent Minister by the appli
cants (who constitute the Canadian Football
League and are referred to herein compendiously
as "the CFL").
I have concluded that the application should be
dismissed but in giving these reasons I will, as
required by section 47 of the Act, "take every
reasonable precaution" to avoid disclosure of such
information as would render academic any possible
appeal from my decision. I think it reasonable to
note at the outset that the material in question
consists of a brief submitted to the Government of
Canada by the applicants, in which certain infor
mation about the Canadian Football League was
conveyed to the Government and certain proposals
were made for governmental action possibly
involving legislation or appropriations or both.
Most of this information as to the nature of the
material in question can already be ascertained
from that part of the Court record which is public.
To the extent that it cannot, I feel I must reveal
such information in order to provide meaningful
reasons.
BACKGROUND FACTS
On October 9, 1986 the Minister of State for
Fitness and Amateur Sports received a request,
pursuant to the Access to Information Act, for,
inter alia,
any and all reports, and or studies, and or analysis regarding
the Canadian Football League ... I request information since
Sept 1984.
On April 1, 1987 the Acting Access to Informa
tion Coordinator for the Fitness and Amateur
Sports Programme advised Mr. Douglas H.
Mitchell, Commissioner of the Canadian Football
League, that such a request had been received and
that the only document so far identified that might
be released pursuant to this request was a brief
submitted by the CFL to the Minister dated April,
1 S.C. 1980-81-82-83, c. 11l, Schedule I.
1986. On April 20, 1987 counsel for the CFL
advised the Access to Information Coordinator
that it was strongly of the view that this brief
should not be disclosed to the requesting party in
whole or in part. The Coordinator advised Mr.
Mitchell on September 30, 1987 that the relevant
officials had considered the representation by
counsel, had reviewed the brief and the Act, and
had decided that the brief should be released
except for certain portions which the Government
was prepared to delete. A copy of the brief was
sent with the proposed deletions highlighted. On
October 15, 1987 the CFL filed this application
for review. There then ensued a long period in
which nothing appears to have been done by the
CFL to further this application. The matter was
finally brought on before the Associate Chief Jus
tice on May 16, 1988 by means of a notice of
motion filed by the respondent Minister seeking an
order directing that the record in question be filed
in a sealed envelope and seeking directions and a
date for a hearing of the application for review. On
that date the Associate Chief Justice issued an
order for the filing of the record on a confidential
basis and directing the applicants to serve on
counsel for the respondent on a confidential basis,
within thirty days, the affidavit material upon
which the CFL intended to rely. The order indicat
ed that the CFL could then seek an order to
preserve the confidentiality of such affidavit ma
terial in Court and for directions for the hearing of
the matter. While I understand there were then
communication between counsel for the CFL and
the Minister as to the contents of such an affidavit,
the CFL did not come back to the Court for
further directions nor did it present an affidavit for
confidential filing until December 13, 1988. In the
meantime, as the CFL had taken no steps to bring
the matter on for hearing, counsel for the respon
dent Minister wrote to the Court on September 21,
1988 asking for a hearing date to be fixed. On
October 18, 1988 a hearing date was fixed for
December 15, 1988.
Also in the meantime, Mr. David Shoalts, a
journalist employed in the sports department of
The Globe and Mail newspaper in Toronto, made
a request on May 5, 1988 to the Government of
Canada for records under the Access to Informa
tion Act. While that request was very lengthy, it
will suffice to say that the document considered by
the Minister to be relevant to that request was the
same brief to whose disclosure the CFL had
already taken objection as noted above. On August
23, 1988 Mr. Shoalts gave notice that he intended
to participate as a party in this review proceeding.
The other parties have not objected to his partici
pation, apparently treating him as a person en
titled to participate pursuant to subsection 44(3)
of the Act.
I might add that although an order was given on
October 18, 1988 setting this matter down for
hearing in Toronto on December 15, 1988, the
CFL's motion record was not filed until December
13, two days before the date fixed for the hearing,
notwithstanding the requirement of Rule 321.1
[Federal Court Rules, C.R.C., c. 663, (as added
by SOR/88-221, s. 7)] that such records be filed
ten days before the hearing date. Further, the
record as filed was incomplete in that it did not
contain a concise statement of the facts and law to
be relied on by the CFL. This latter portion was
not provided until December 19, and then only
because I was obliged to adjourn until December
21 the hearing scheduled for December 15. I
granted that adjournment at the request of the
CFL, but only on certain conditions one of which
was that the CFL's record be completed by
December 19.
ISSUES
The CFL contends that its brief should not be
disclosed on the following grounds: a) it is not a
"record under the control of a government institu
tion"; b) its disclosure is precluded by paragraph
20(1)(b) of the Act because it contains financial
and commercial information of a confidential
nature; c) its disclosure is precluded by paragraph
20(1)(c) of the Act because it contains informa
tion whose disclosure could be expected to result in
financial loss or prejudice to the competitive posi
tion of the applicants; and d) although the
respondent Minister has indicated that portions
will be deleted before the remainder of the brief is
disclosed, the remaining passages are not reason
ably severable as required by section 25 of the Act.
Is this a "record under the control of a government
institution"?
Subsection 2(1) of the Access to Information
Act provides as follows:
2. (I) 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.
Subsection 4(1) gives a general right to Canadians
and permanent residents to "access to any record
under the control of a government institution",
subject of course to other provisions of the Act.
The CFL contends that because the document in
question here was marked "confidential" and its
confidential nature was stressed to the Govern
ment at the time of its presentation to the Govern
ment, which presentation was voluntary and not
mandatory, the document is not "government
information" within the stated purpose of the Act
in subsection 2(1) nor is it "under the control of a
government institution" as referred to in subsec
tions 2(1) and 4(1).
The plain meaning of the language employed in
the Act does not suggest that "information", "gov-
ernment information", or "record under the con
trol" of the Government must be limited by some
test as to how and on what terms the information
or record came into the hands of the Government.
That is the kind of qualification which the CFL is
asking me to create. I can find no basis for doing
so. The plain meaning of subsections 2(1) and 4(1)
as quoted above is that the Act gives access,
subject to many exceptions, to any record, or
information in a record, which happens to be
within the custody of the government regardless of
the means by which that custody was obtained.
That is surely the interpretation which is also most
consistent with the purpose of the Act. The inter
pretation advanced by the CFL on the other hand,
appears to be inconsistent with paragraph 20(1)(b)
which it also relies on: that paragraph obviously
assumes that "confidential information supplied to
a government institution by a third party" is prima
facie within the definition of "record" to which
access would otherwise be available were it not for
the possible protection of this paragraph. In other
words, this exception proves the rule that confiden
tial material supplied by a third party to the
Government can form all or part of a "record
under the control of a government institution". It
will be noted that the word "supplied" in para
graph 20(1)(b) is not modified by any terms such
as "under compulsion".
Possible exemption under paragraph 20(1)(b)
This paragraph requires that the head of a
government institution refuse to disclose any
record that contains
2o.(1)...
(b) financial, commercial, scientific or technical information
that is confidential information supplied to a government
institution by a third party and is treated consistently in a
confidential manner by third party;
The CFL contends that the brief in question con
tains financial or commercial information of a
confidential nature. The burden of proof of that
allegation is, of course, on the CFL. 2
I have grave doubts that what remains in the
expurgated version of this document which the
Minister proposes to release can be said in any
serious way to amount to financial or commercial
information.
I need not decide that question, however, as I
am satisfied that the applicants have not met the
burden of proof that this is "confidential informa
tion". This is a matter which must be determined
objectively by considering whether the information
is by its nature confidential.' I am unable to see
much in the expurgated version which would not
be known in at least a general way by any sports
fan or indeed by almost any reasonably alert resi
dent of Canada. Although invited to do so, counsel
for the CFL was unable to identify any particular
2 Canada Packers Inc. v. Canada (Minister of Agriculture),
[1989] I F.C. 47 (C.A.).
3 Maislin Industries Limited v. Minister for Industry, Trade
and Commerce, [1984] 1 F.C. 939 (T.D.).
passage of this nature. Instead, he argued that the
very facts of the submission being made and of its
general nature (calling as it does for legislation or
the expenditure of public funds or both) were the
inherently confidential aspects of the censored ver
sion of the brief which the Minister intends to
disclose.
I am satisfied that when individuals, associa
tions, or corporations approach the Government
for special action in their favour, it is not enough
to state that their submission is confidential in
order to make it so in an objective sense. Such a
principle would surely undermine much of the
purpose of this Act which in part is to make
available to the public the information upon which
government action is taken or refused. Nor would
it be consistent with that purpose if a Minister or
his officials were able to exempt information from
disclosure simply by agreeing when it is submitted
that it would be treated as confidential. (There is
no evidence that any such express commitment
was made in this case.)
Applying the "reasonable man" test which the
applicants have invited me to do, I fail to see how
a reasonable man can expect the very fact of his
private approaches to Government for special gov
ernmental action in his favour to remain forever
confidential, particularly when what is sought
would involve the approval by Parliament of legis
lation or appropriations. There may well be some
facts communicated during such approaches, such
as those concerning personal or corporate finances,
that may by their nature be confidential, but I fail
to see anything of that kind here nor does the CFL
really identify any such material in the expurgated
brief.
Possible exemptions under paragraph 20(1)(c)
This paragraph requires the Government to
refuse disclosure of any record that contains:
20. ( I ) ...
(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, ....
The Federal Court of Appeal has held that an
applicant to invoke this paragraph must establish
"a reasonable expectation of probable harm." 4
The only evidence I have of such prejudice is an
affidavit of Douglas H. Mitchell which describes
in the most general way certain consequences that
"could" ensue from disclosure of the brief. Such
evidence falls far short of meeting the burden of
proof on the CFL. It is also seriously brought into
question by evidence of numerous articles pub
lished in The Globe and Mail which have already
portrayed most of the problems referred to in the
brief. It is difficult to believe that much additional
injury could be causally linked to the disclosure of
the expurgated version of this brief which, if it
occurs in accordance with this judgment, will not
happen until nearly three years after its submission
to the Government.
Severability under section 25
This section provides that where the head of an
institution is authorized to refuse to disclose a
record because it contains information which the
Act requires not to be disclosed, he is authorized to
disclose any part of that record that does not
contain such material if it "can reasonably be
severed from" the protected material. The appli
cants contend that the portion of the brief which
the Minister proposes to disclose in this case
cannot reasonably be severed from those portions
which he does not intend to disclose. It is argued
that the material which is left for disclosure is
misleading by reason of the absence of key pas
sages which have been expurgated. It is said that
portions of the remaining material, particularly
where they follow a blank space where material
has been deleted, will give rise to harmful specula
tion as to what was not disclosed. I have reread the
entire brief including the passages which are not to
be disclosed and I am unable to agree that such a
severance would be unreasonable. I believe that
what remains is meaningful without the deleted
passages and does not distort the sense of the
original brief. Therefore the severance is permitted
by section 25. This is not affected by any fear,
whether reasonable or not, of speculation in the
media as to what has not been disclosed. That is a
possibility where any partial record is disclosed but
4 Canada Packers case, supra, note 2, at p. 60.
is an inherent part of the system prescribed by the
Act.
CONCLUSION
The application will therefore be dismissed. The
affidavit of John Horricks sworn May 4, 1988 and
filed on a confidential basis pursuant to the order
of Jerome A.C.J. of May 16, 1988 shall remain
under seal and not form part of the public record
of the Court. I directed on December 21, 1988 that
the supplementary motion record of the applicants
containing the same affidavit of John Horricks and
a supplementary affidavit of Douglas H. Mitchell
sworn November 10, 1988 be filed on a confiden
tial basis and retained in that form subject to
further order. Although requested by the respon
dent Shoalts to release at least some of the con
tents of the supplementary affidavit of Douglas H.
Mitchell, I am not going to do so. It appears to me
that there are some references in the affidavit and
in its exhibits to aspects of the brief which the
Minister does not propose to disclose. Having
regard to the Court's responsibility under section
47 of the Access to Information Act to take every
reasonable precaution to avoid disclosure of ma
terial which the Minister is required not to dis
close, and having regard to the fact that this
application is in respect of the disclosure of the
brief itself and not of these other materials, I am
not going to attempt to sever this material. This, of
course, does not preclude the intended release by
the Minister of the expurgated version of the brief
which also appears as Exhibit C in Mr. Mitchell's
supplementary affidavit.
I will suspend the operation of my order for
thirty days to allow the applicants to consider
whether they wish to appeal.
COSTS
Costs will be payable by the applicants, the
CFL. As I outlined in the facts above,, the CFL
has not acted in a diligent manner in bringing this
matter on for hearing. There was apparent inac
tion on its part from October, 1987 to May 16,
1988 when it was brought before the Court by the
respondent Minister. On that date it was ordered
to serve on counsel for the Minister within thirty
days any affidavit it intended to rely on and then
to seek further direction as to its filing on a
confidential basis and with respect to the hearing.
That affidavit (slightly over two pages) was not
sworn until November 10, 1988 and it was not
filed until December 13. Further, although the
hearing date of December 15 was fixed by the
Court on October 18, the CFL failed to file any
record for that hearing by the deadline prescribed
by Rule 321.1, namely at least ten days prior to
the hearing. When it did file a record two days
prior to the hearing date the record was incom
plete. The main explanation which counsel has
given for this course of action is, first, that much
of this time was spent in negotiation with counsel
for the respondent Minister and then with counsel
for the respondent Shoalts after the latter entered
the proceeding in August; and, secondly, that he
did not file a memorandum of fact and law as
required by the Rules because he thought it inap
propriate having regard to the confidentiality of
his arguments. But it was open to him at all times
to seek directions from the Court with respect to
the filing of any affidavits on a confidential basis
and with respect to the form of his application
record. These he declined to seek.
Orders are made to be respected, as are the
Rules of the Court. The failure to file a proper
record is a particularly serious matter since it is
prejudicial to opposing parties who do not know
the nature of the case they are supposed to meet,
and it is at the very least inconvenient and inef
ficient for the Court not to have such a document
in a timely fashion as required by the Rules. The
requirements of Rule 321.1 are not something
which may be unilaterally ignored or even modi
fied by agreement of all counsel. If further direc
tions on the content or manner of filing were
required having regard to the confidential aspects
of the case, these could have been obtained on a
formal or informal basis. Since very little of the
argument of the CFL was related to the document
in question, I find it difficult to understand why a
meaningful statement of fact and law could not
have been filed on a non-confidential basis as was
in fact finally done pursuant to my order of
December 15.
In some cases it may be an appropriate sanction,
where the requirements of Rule 321.1 have not
been met, simply to adjourn the hearing until they
are met. But that would not have been a suitable
remedy in this case because it would only cause
more of the delay which has been to the advantage
of the applicants by postponing further the possi
bility of publication of the brief. In such circum
stances the appropriate remedy must be found in
costs.
Having regard to the foregoing I will order that
the costs for both the Minister and David Shoalts
in respect of the adjournment of December 15 and
in respect of the hearing on December 21 are to be
paid on a solicitor-client basis by the applicants.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.