Date: 19990818
Docket: T-1438-93
Between:
MATOL BOTANICAL INTERNATIONAL LTD.,
Applicant,
- and -
THE MINISTER OF HEALTH AND WELFARE CANADA,
Respondent.
Docket: T-2454-93
Between:
MATOL BOTANICAL INTERNATIONAL LTD.,
Applicant,
- and -
THE MINISTER OF HEALTH AND WELFARE CANADA,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] The applicant, pursuant to s. 44 of the Access to Information Act ("the Act")1 is seeking the review and quashing of decisions by the Minister of Health and Welfare Canada to authorize the disclosure of information in response to an application for access to information regarding the products of Matol Botanical International Ltd. ("Matol").
[2] The applicant Matol, operates in the field of manufacturing, selling and distributing mineral non-medicinal products prepared from a base of flowers, leaves, roots and bark taken from certain plants.
T-1438-93
[3] On May 3, 1993 Health and Welfare Canada informed Matol that an application for access to information concerning a "copy of all information on Matol Botanical International Ltd. (and their products) that the Health Protection Branch of Health and Welfare Canada has on file"2 had been filed and this application related to 39 documents in the Department's possession. The applicant was also informed that the Minister intended to proceed to disclose 36 of these documents. On May 18, 1993 Matol objected to the application.
[4] The Minister dismissed its objection and authorized that the information be disclosed.
[5] On June 3, 1994, in connection with another application for access to information (case T-1261-92), my brother Noël J. upheld the Minister's decision to permit disclosure of these same documents, except for the following three:
[TRANSLATION]
| -- document No. 17, memorandum to J. Rioux dated December 7, 1988; |
| -- document No. 24, memorandum to M.L. Hayes dated September 19, 1988; |
| -- document No. 2, summary of interview dated April 4, 1985: the second full paragraph and the paragraph preceded by the number 4 are deleted.3 |
This decision was not appealed.
[6] I dismissed this application from the bench on the ground that it was res judicata.
[7] Since the parties were the same, the purpose was the same and the decision was final,4 the three tests for res judicata were met.5
[8] The only distinction lies in the fact that the applicant Matol is now in receivership under the Companies' Creditors Arrangement Act.6
[9] In my view this event does not alter the subject-matter of the case, which is the same in both cases, namely determining whether the documents are public or confidential.
[10] Further, as the respondent pointed out, these documents are available to the public in case T-1261-92.
[11] In Air Atonabee Ltd. v. Canada (Minister of Transport),7 McKay J. noted that information cannot be confidential, even if third parties regarded it as such, when it is available to the public from some other source:
| Information has not been held to be confidential, even if the third party considered it so, where it has been available to the public from some other source, [...] or where it has been available at an earlier time or in another form from government.8 |
[12] Accordingly, the motion was dismissed except for the documents which were already accepted in case T-1261-92.
T-2454-93
[13] On August 23, 1993 Health and Welfare Canada informed Matol that an application for disclosure had been filed in respect with the following documents: "Information on Product MATOL 1 by Matol Botanical of Montreal. Any complaints on product, outcome of complaints, charges brought by Health and Welfare, also any government actions and/or investigations".
[14] On September 10, 1993 Matol challenged this access to information application. The Minister dismissed this challenge and authorized disclosure of the information. This decision by the Minister is the subject of the appeal at bar.
[15] At the hearing the applicant limited its argument to application of the exception mentioned in paragraph 20(1)(c) of the Act. In my reasons I will accordingly deal only with that paragraph, since in any case the reasons of Noël J. in case T-1261-92 regarding paragraphs 20(1)(a), (b) and (d) of the Act apply to the case at bar in their entirety.
[16] Paragraph 20(1)(c) reads as follows:
| (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 . . . |
c) des renseignements dont la divulgation risquerait vraisemblablement de causer des pertes ou profits financiers appréciables à un tiers ou de nuire à sa compétitivité . . . |
[17] According to the Federal Court of Appeal in Canada Packers Inc.,9 in order to meet the requirements of paragraph 20(1)(c) the applicant must show that there is a "reasonable expectation of probable harm".10
[18] The applicant alleged primarily that the disclosure would significantly worsen its precarious financial situation caused by its being put in receivership. As customer demand in the field of natural products is so uncertain any negative information would cause a massive abandonment of its products by its customers. Additionally, since Matol is in a precarious financial position it would not have the necessary funds to mount an advertising program to offset the negative image created by such a disclosure.
[19] In support of its argument the applicant submitted an affidavit by Mr. Bolduc, senior manager of the applicant Matol.
[20] I note that in SNC-Lavalin Inc. v. Canada (Minister of Public Works),11 McKay J. dismissed an applicant's arguments because they were based entirely on unsupported assumptions in an affidavit:
| The applicant does not demonstrate probable harm as a reasonable expectation from disclosure of the Record and the Proposal simply by affirming by affidavit that disclosure "would undoubtedly result in material financial loss and prejudice" to the applicant or would "undoubtedly interfere with contractual and other negotiations of SNC-Lavalin in future business dealings". These affirmations are the very findings the Court must make if paragraphs 20(1)(c) and (d) are to apply. Without further explanation based on evidence that establishes those outcomes are reasonably probable, the Court is left to speculate and has no basis to find the harm necessary to support application of these provisions.12 |
[21] As in SNC-Lavalin Inc., I am unable, as there is no other evidence in the record to support the financial position suggested, to conclude that this is a reasonably probable outcome.
[22] Assuming that the information covered by the application is used, the age of the documents and their content are not so negative as to create a reasonable probability of material financial loss.
[23] The documents relating to the complaints indicate that the latter are without foundation and the documents relating to the inspection reports show that the applicant has taken corrective action.
[24] In Canada Packers Inc.,13 the Federal Court of Appeal held that the reports were not so negative as to be exempt from disclosure. MacGuigan J.A. concluded:
| . . . although all [the reports] are negative to some degree, I am satisfied in each case that, particularly now, years after they were made, they are not so negative as to give rise to a reasonable probability of material financial loss to the appellant, or of prejudice to its competitive position or of interference with its contractual or other negotiations.14 |
[25] Further, I note that the applicant provided no evidence of a single recall of products following the decision by Noël J. in 1994, allowing the disclosure of similar prior documents. Also, since those similar documents are available to the public (in case T-1261-92), I do not really see how the disclosure could produce the negative consequences mentioned by the applicant.
[26] Accordingly, the applicant has not discharged the burden of proving that the disclosure of the documents at issue would probably cause it material financial loss or affect its competitive position within the meaning of paragraph 20(1)(c) of the Act.
[27] The application is dismissed except for documents 1-2, which as in case T-1261-92 relate to distributors.
| Danièle Tremblay-Lamer JUDGE |
MONTRÉAL, QUEBEC
August 18, 1999
Certified true translation
Bernard Olivier, LL. B.
| FEDERAL COURT TRIAL DIVISION Date: 19990818 Docket: T-1438-93 Between: MATOL BOTANICAL INTERNATIONAL LTD., Applicant, - and - THE MINISTER OF HEALTH AND WELFARE CANADA, Respondent. Docket: T-2354-93 Between: MATOL BOTANICAL INTERNATIONAL LTD., Applicant, - and - THE MINISTER OF HEALTH AND WELFARE AND CANADA, Respondent. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-1438-93 |
| STYLE OF CAUSE: MATOL BOTANICAL INTERNATIONAL LTD., |
Applicant,
- and -
| THE MINISTER OF HEALTH AND WELFARE CANADA, |
Respondent.
Docket: T-2354-93
Between:
| MATOL BOTANICAL INTERNATIONAL LTD., |
Applicant,
- and -
| THE MINISTER OF HEALTH AND WELFARE AND CANADA, |
Respondent.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 11, 1999
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: AUGUST 18, 1999
APPEARANCES:
| Serge Fournier & Marie-Josée Robert for the applicant |
| Virginie Cantave & Rosemarie Millar for the respondent |
SOLICITORS OF RECORD:
Brouillette, Charpentier, Fortin for the applicant
Montréal, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________2 Letter from N. Mackenzie to H. Schriel, Director, Access to Information and Privacy Health Protection Branch (April 17, 1993), Tab 2 of respondent's record.
3 Matol Botanical International Ltd. v. Canada (Minister of Health and Welfare) et al. (1994), 84 F.T.R. 168, at 179 (F.C.T.D.).
4 Noël J.'s judgment was not appealed in case T-1261-92.
5 J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at pp. 990-91.
7 (1989), 27 F.T.R. 194 (F.C.T.D.).
9 Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (F.C.A.).