Date: 20021023
Docket: A-611-01
Neutral citation: 2002 FCA 406
CORAM: LINDEN J.A.
SEXTON J.A.
BETWEEN:
MINISTER OF CANADIAN HERITAGE
Appellant
- and -
PRICEWATERHOUSECOOPERS, LLP.
Respondent
Heard at Toronto, Ontario, on Tuesday, October 22, 2002.
Judgment delivered from the Bench at Toronto, Ontario, on Tuesday, October 22, 2002.
REASONS FOR JUDGMENT OF THE COURT: SEXTON J.A.
Date: 20021023
Docket: A-611-01
Neutral citation: 2002 FCA 406
SHARLOW J.A.
BETWEEN:
MINISTER OF CANADIAN HERITAGE
Appellant
- and -
PRICEWATERHOUSECOOPERS, LLP.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Tuesday, October 22, 2002)
SEXTON J.A.
[1] The Appellant appeals the decision of the Trial Division dated September 20th, 2001 which ordered the Appellant not to disclose certain reports of the Respondent. These reports consisted of two documents prepared for the Appellant by the Respondent. In preparing these reports, the Respondent applied its own proprietary methodologies and information in the course of which it made recommendations to the Appellant. The evidence before the Motions Judge was to the effect that disclosure of the documents would permit a competitor to reverse-engineer or work deductively to determine the means, methodologies and analysis which the Respondent used in its work for the Appellant and that disclosure of such documents would prejudice the Respondent's competitive position in the marketplace. The Motions judge accepted this evidence.
[2] On the appeal, the Appellant's main argument was that the Motions Judge erred in law by applying too low a standard of proof with respect to the issue of reverse-engineering. Specifically, the Appellant argued that the Respondent had not filed sufficient evidence to establish that reverse-engineering could occur. The Appellant did concede that there was some evidence on this issue but argued that it was simply insufficient.
[3] The Appellant neither cross-examined nor filed its own evidence on this question. In pursuing this course, the Appellant ran the risk that the Motions Judge would conclude, as he did, that there was sufficient evidence. The sufficiency of the evidence is particularly within the purview of the Motions Judge and it is very difficult for a Court of Appeal to second guess the Motions Judge on this point.
[4] The Motions Judge did not alter the standard of proof as argued by the Appellant. The applicable standard of proof with respect to applications pursuant to Section 20(1)(a-c) of the Access to Information Act, R.S. 1985, c. A-1, is the civil standard, that is, proof on a balance of probabilities: Tridel Corp. v. CMHC (1996), 115 F.T.R. 185 at 196 (T.D.) and Northern Cruiser Company Ltd. v. Canada [1995] F.C.J. No. 1168 at para 4 (F.C.A.) (QL).
[5] We believe the Motions Judge applied this standard and that there was evidence which permitted him to reach the conclusion he did.
[6] The Appellant in order to succeed on this appeal would have to demonstrate that the Motions judge had made an error of principle or completely misapprehended the facts or committed an overriding and palpable error.
[7] We are unable to conclude that the Motions judge made any such error. The appeal will therefore be dismissed with costs.
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-611-01
STYLE OF CAUSE: MINISTER OF CANADIAN HERITAGE
Appellant
- and -
PRICEWATERHOUSECOOPERS, LLP.
Respondent
DATE OF HEARING: TUESDAY, OCTOBER 22, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DATED: WEDNESDAY, OCTOBER 23, 2002
DELIVERED AT TORONTO, ONTARIO ON TUESDAY, OCTOBER 22, 2002.
APPEARANCES BY: Ms. Shelley Quinn
For the Appellant
Mr. Gerald Ranking
For the Respondent
SOLICITORS OF RECORD:Morris Rosenberg
Deputy Attorney General of Canada
For the Appellant
Fasken, Martineau, Dumoulin
Barristers and Solicitors
Toronto-Dominion Bank Tower
Toronto-Dominion Centre
Box 20, Suite 4200
Toronto, Ontario
M5K 1N6
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20021023
Docket: A-611-01
BETWEEN:
MINISTER OF CANADIAN HERITAGE
Appellant
- and -
PRICEWATERHOUSECOOPERS, LLP.
Respondent
REASONS FOR JUDGMENT
OF THE COURT