Date: 19991117
Docket: A-292-96
OTTAWA, ONTARIO, WEDNESDAY, NOVEMBER 17, 1999
C O R A M: STRAYER J.A.
LINDEN J.A.
McDONALD J.A.
B E T W E E N:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
(Applicant)
" and "
THE PRESIDENT OF THE ATLANTIC CANADA
OPPORTUNITIES AGENCY
Respondent
(Respondent)
J U D G M E N T
The appeal is allowed with costs, and the respondent is directed to disclose to Jacques Poitras the actual number of jobs created at the specific companies covered in the survey of the Atlantic Canada Opportunities Agency Action Program clients which received funding from the Atlantic Canada Opportunities Agency, without any severance of the 76 pages in question.
J.A.
Date: 19991118
Docket: A-292-96
CORAM: STRAYER J.A.
LINDEN J.A.
McDONALD J.A.
B E T W E E N:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
(Applicant)
" and "
THE PRESIDENT OF THE ATLANTIC CANADA
OPPORTUNITIES AGENCY
Respondent
(Respondent)
HEARD at Ottawa, Ontario on Wednesday, November 17, 1999
JUDGMENT delivered from the Bench on Wednesday, November 17, 1999
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 19991118
Docket: A-292-96
C O R A M: STRAYER J.A.
LINDEN J.A.
McDONALD J.A.
B E T W E E N:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
(Applicant)
" and "
THE PRESIDENT OF THE ATLANTIC CANADA
OPPORTUNITIES AGENCY
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, November 17, 1999)
STRAYER J.A.
[1] We are all of the view that this appeal must be allowed.
[2] The matter in issue is as to whether the information provided by the companies surveyed by Price Waterhouse, in particular the statistics as to actual jobs created or maintained as a result of the respondent Agency's program, was confidential when provided and whether it has been consistently treated as confidential. If so it would be exempt from disclosure under paragraph 20(1)(b) of the Act.
[3] It is clear from section 48 of the Access to Information Act that the Agency had the burden of proof to satisfy the Court that it was authorized to refuse to disclose the record in question. As we understand the jurisprudence,1 this requires the production of actual direct evidence, which in this case was needed to prove original and continuing confidentiality of the information. In our view there was no such evidence as would support a finding of confidentiality in respect of each of the companies concerned. The material chiefly relied on by the learned Trial Judge consisted of "representations" made to the Information Commissioner by 24 companies under subparagraph 35(2)(c)(iii) of the Act during the course of his investigation. These unsworn statements could not be treated as evidence even as to the confidentiality of the information of the companies making the representations, let alone as to the confidentiality of information of all the other companies.
[4] The only evidence supporting the claim to confidentiality is that Price Waterhouse, in seeking the information for the Agency from the companies, stated that the information gathered would be kept confidential. This was an undertaking not authorized by the Agency and, according to well established jurisprudence,2 cannot be determinative of disclosure obligations under the Access to Information Act. It is regrettable if those surveyed were misled by this undertaking, but they were aware that the information was being gathered for a government agency. By law such information became part of a government record subject to the Act.
[5] The appeal will therefore be allowed with costs and the respondent will be directed to disclose to the complainant Jacques Poitras the actual number of jobs created at the specific companies covered in the Price Waterhouse survey.
J.A.
__________________1 See e.g. Air Atonabee Limited v. Canada (1989) 27 F.T.R. 194 at para. 37, and authorities cited there. (F.C.T.D.).
2 See e.g.Ottawa Football Club v. Canada [1989] 2 F.C. 480 at 487 (F.C.T.D.); Canada (Information Commissioner v. Canada (Immigration and Refugee Board) [1997] F.C.J. 1812 at paras. 25, 26 (F.C.T.D.); Canadian Broadcasting Corporation v. National Capital Commission unreported May 19, 1998 T-2200-97 at para. 31 (F.C.T.D.).