A-1345-87
Canada Packers Inc. (Appellant) (Applicant)
v.
Minister of Agriculture (Respondent) (Respon-
dent)
and
Information Commissioner of Canada and Jim
Romahn (Party Intervenants)
A-540-88
Canada Packers Inc. (Appellant) (Applicant)
v.
Minister of Agriculture (Respondent) (Respon-
dent)
and
Ken Rubin and Information Commissioner of
Canada (Party Intervenants)
INDEXED AS: CANADA PACKERS INC. V. CANADA (MINISTER
OF AGRICULTURE) (CA.)
Court of Appeal, Heald, Urie and MacGuigan JJ.
—Toronto, May 17, 18, 19 and 20; Ottawa, July
8, 1988.
Access to information — 1983 meat inspection team audit
reports — Appeal from dismissals of applications resisting
disclosure — Motions Judge erred in requiring "direct causa
tion" between disclosure and harm — Governing phrase in
s. 20(1)(c) and (d) "could reasonably be expected to" —
Reasonable expectation of probable harm required — Motions
Judge erred in relying upon s. 20(6) in releasing reports —
Minister not having exercised discretion under s. 20(6), Court
unable to exercise it for him — S. 20(1)(b) irrelevant —
Appellant not establishing probability of material harm —
Each report considered individually and in context of other
reports requested — Appeal dismissed.
Construction of statutes — Access to Information Act,
s. 20(I)(c),(d) providing for exceptions to access — Whether
use of verb "result in" implying necessity of direct causality
between disclosure and financial loss — Choice of governing
verb from several alternatives — Words-in-total-context
approach requiring consideration of purpose of Act.
These were appeals from dismissals of applications to resist
disclosure of third party information under the Access to
Information Act. A newspaper reporter and a consumer
researcher requested disclosure of meat inspection team audit
reports on meat packing plants in the Kitchener area during
1983. The reports were to be released with the exception of
information exempted as confidential under paragraph
20(1)(b) of the Act. A section 44 application to resist disclosure
had been dismissed. The Motions Judge stated that the "evi-
dence of harm under paragraphs 20(1)(c) and (d) must be
detailed, convincing and describe a direct causation between
disclosure and harm." He found that the material did not come
within paragraph 20(1)(c) or (d) and relied upon subsection
20(6) in releasing the reports. Subsection 20(6) provides that
"The head of a government institution may disclose any record
requested under this Act ...". The appellant's concern was that
the reports were "negative report cards" in that their purpose
was to point out deficiencies in plant facilities while they did
not comment upon satisfactory conditions. It also feared nega
tive reporting which could have serious effects in an industry
with little consumer loyalty and a consistently low profit
margin.
Held, the appeals should be dismissed.
The statement of the law provided by the Motions Judge was
imprecise and misleading in all its elements. His Lordship erred
in requiring "direct causation" between disclosure and harm.
Such an approach would mean that any harm which might
result from media coverage, as opposed to the contents of the
reports themselves, would be irrelevant. The test of direct
causality in tort law was no longer in vogue. The language of
paragraphs (c) and (d), ("information the disclosure of which
could reasonably be expected to") was closer to a "foreseeabili-
ty" test than to a direct causality analysis. The use of "result
in" in English and "causer" in French in paragraph (c) was
ambiguous in relation to direct causality. What governed, in
each of the alternatives in paragraphs (c) and (d) was not the
final verb "result in", "prejudice" or "interfere with" but the
initial phrase, which was the same in each case, "could reason
ably be expected to". It does not imply a distinction of direct
and indirect causality, but only of what is reasonably to be
expected and what is not. The temptation to analogize this
phrasing to the reasonable foreseeability test in tort was to be
resisted. Instead, the words-in-total-context approach should be
followed. Looking at the words in light of the purpose of the
Act as set out in section 2, the exceptions to access in para
graphs (c) and (d) must be interpreted as requiring a reason
able expectation of probable harm.
The Motions Judge also erred in relying upon subsection
20(6). But the Minister only decided under subsection 20(1)
not to refuse to disclose records. He did not exercise the
discretion conferred by subsection 20(6), and the Court cannot
exercise the Minister's discretion in his stead.
It should also be noted that the respondent could not rely
upon paragraph 20(1)(b) to refuse to disclose anything but
animal kill counts and the number of plant employees, as that
was the only information supplied by the appellant. The rest of
the information in the reports was obtained from independent
government inspections.
The reports dealt with the physical condition of the meat
packing facility, and the manufacturing and inspection pro
cesses. Similar reports were independently prepared for Wash-
ington by Foreign Review Officers, who formed part of the
headquarters audit team. Such reports have been available to
the public under American legislation since 1974. The Canadi-
an reports had also been available for a couple of years prior to
the coming into effect of the Access to Information Act. There
was no evidence of unfair publicity relating to either the
American or Canadian reports. The appellant could neither
sustain its fear of unfair press coverage, nor establish the effect
such coverage might have on the industry. The probability of
material harm had not been established. Reports dealing with
product (versus plant) safety were to be distinguished.
Although a decision had to be made as to each audit report,
each had to be viewed in the context of the others as the total
release would have a bearing on the reasonable consequences of
disclosure. While all the reports were to some degree negative,
they were not so negative as to give rise to a reasonable
probability of material financial loss, prejudice to competitive
position or interference with contractual negotiations, particu
larly as a number of years had passed since they were made. At
most, they would raise questions as to what steps had been
taken to remedy the deficiencies.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 2, 20, 44.
Freedom of Information Act, 5 U.S.C., § 552 (1970).
Right to Information Act, S.N.B. 1978, c. R-10.3, s. 6(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Lor- Wes Contracting Ltd. v. The Queen, [1986] 1 F.C.
346; (1985), 60 N.R. 321 (C.A.); Cashin v. Canadian
Broadcasting Corporation, [1988] 3 F.C. 494 (C.A.).
CONSIDERED:
McDonald v. McDonald, [ 1970] 3 O.R. 297 (H.C.); In re
Polemis and Furness, Withy & Co., [1921] 3 K.B. 560
(C.A.); Overseas Tankship (U.K.) Ltd. v. Mort's Dock
and Engineering Co. Ltd. (The Wagon Mound (No. I )),
[1961] A.C. 388; [1961] 1 All E.R. 404 (P.C.); Overseas
Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., The
Wagon Mound (No. 2), [1967] 1 A.C. 617; [1966] 2 All
E.R. 709 (P.C.).
REFERRED TO:
National Parks and Conservation Ass'n v. Morton, 498
F.2d 765 (D.C. Cir. 1974); National Parks and Conser
vation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976);
Westinghouse Elec. Corp.—Research and Development
Center v. Brown, 443 F.Supp. 1225 (D.C. Va. 1977);
Gulf & Western Indus. Inc. v. U. S., 615 F.2d 527 (D.C.
Cir. 1979); Public Citizen Health Research Group v.
Food and Drug Admin., 704 F.2d 1280 (D.C. Cir. 1981);
Sawridge Indian Band v. Canada (Minister of Indian
Affairs and Northern Development) (1987), 10 F.T.R. 48
(F.C.T.D.); Re Daigle (1980), 30 N.B.R. (2d) 209
(Q.B.).
AUTHORS CITED
Linden, Allen M. Canadian Tort Law, 3rd ed. Toronto:
Butterworths, 1982.
COUNSEL:
Colin L. Campbell, Q.C. and Mary M.
Thomson for appellant (applicant).
Geraldine N. Sparrow for respondent
(respondent).
Michael E. Phelan, Patricia J. Wilson and
Paul B. Tetro for intervenant Information
Commissioner of Canada.
Hilde M. English and Kimberly L. Evans for
intervenant Jim Romahn.
APPEARANCE:
Ken Rubin on his own behalf.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appel
lant (applicant).
Deputy Attorney General of Canada for
respondent (respondent).
Osler, Hoskin & Harcourt, Ottawa, for
intervenant Information Commissioner of
Canada.
Haney, White, Ostner, English & Linton,
Waterloo, Ontario, for intervenant Jim
Romahn.
Intervenant on his own behalf.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: These are cases of first impres
sion involving the proposed public disclosure of
third party information by the head of a govern
ment institution under section 20 of the Access to
Information Act ("the Act") [S.C. 1980-81-82-83,
c. 111 (Schedule I)].
The information in question in the cases at bar
is the meat inspection team audit reports on meat
packing plants in the Kitchener area during 1983.
There are three reports in issue (found at pages
140-143 of the Confidential Appeal Book). The
reports were requested by the party intervenants
Jim Romahn ("Romahn"), a newspaper reporter,
and Ken Rubin ("Rubin"), a consumer researcher.
The respondent initially intended to release the
reports with very substantial deletions, but, follow
ing a recommendation to disclose by party interve-
nant the Information Commissioner of Canada
("the Information Commissioner") on a complaint
by Romahn, subsequently opted for disclosure with
the exception of information exempted as confi
dential under paragraph 20(1)(b) of the Act. The
appellant then applied to the Trial Division under
section 44 of the Act for a review of the matter. *
This application to resist disclosure was dismissed
with costs by the Associate Chief Justice by an
order dated December 11, 1987.
The issues at stake are seen by the parties to be,
and are in fact, large ones. On the one hand is the
right of public access to government records, a
right which is unambiguously set out by section 2
of the Act itself:
* Editor's Note: The reasons for judgment in Piller Sausages
& Delicatessens Ltd. v. Canada (Minister of Agriculture),
[1988] 1 F.C. 446 (T.D.) applied to fourteen applications,
including the two applications under appeal. Quotations
appearing in these reasons are from that decision. However,
additional reasons for judgment were also rendered in Canada
Packers Inc. v. Canada (Minister of Agriculture), [1988] 1
F.C. 483 (T.D.) due to the unique nature of the issues raised in
these applications.
PURPOSE OF ACT
2. (1) 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.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and is
not intended to limit in any way access to the type of govern
ment information that is normally available to the general
public.
On the other hand, there is the fear of material
financial loss or at least of prejudice to its competi
tive position on the part of the appellant, a concept
which also receives statutory recognition in section
20 of the Act, which I set out in both official
languages:
Third Party Information
20. (1) Subject to this section, the head of a government
institution shall refuse to disclose any record requested under
this Act that contains
(a) trade secrets of a third party;
(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 the third party;
(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; or
(d) information the disclosure of which could reasonably be
expected to interfere with contractual or other negotiations
of a third party.
(2) The head of a government institution shall not, pursuant
to subsection (1), refuse to disclose a part of a record if that
part contains the results of product or environmental testing
carried out by or on behalf of a government institution unless
the testing was done as a service to a person, a group of persons
or an organization other than a government institution and for
a fee.
(3) Where the head of a government institution discloses a
record requested under this Act, or a part thereof, that contains
the results of product or environmental testing, the head of the
institution shall at the same time as the record or part thereof is
disclosed provide the person who requested the record with a
written explanation of the methods used in conducting the tests.
(4) For the purposes of this section, the results of product or
environmental testing do not include the results of preliminary
testing conducted for the purpose of developing methods of
testing.
(5) The head of a government institution may disclose any
record that contains information described in subsection (1)
with the consent of the third party to whom the information
relates.
(6) The head of a government institution may disclose any
record requested under this Act, or any part thereof, that
contains information described in paragraph (1)(b), (c) or (d) if
such disclosure would be in the public interest as it relates to
public health, public safety or protection of the environment
and, if such public interest in disclosure clearly outweighs in
importance any financial loss or gain to, prejudice to the
competitive position of or interference with contractual or other
negotiations of a third party.
The appellant's fear is of a twofold character. It
argued that the reports issued after the periodic
meat audit inspections are inherently prejudicial in
that they are at their fairest only "negative report
cards." It supported this claim from the very
words that the respondent proposed to use in his
covering letter on the release of the reports [at
page 456]:
Many of the third parties have expressed concern that the
inspection reports could be misinterpreted by someone unfamil
iar with the inspection system. The purpose of the reports is to
point out deficiencies in facilities and operations for the correc
tive action of plant management. The reports contain objective
comments on plant conditions which existed at the time of the
inspection but which do not necessarily relate to the present
situation. As equipment and buildings wear gradually, mainte
nance and repairs is an ongoing function and it is almost
impossible to achieve a state of zero deficiencies at any given
time. The report does not give a fair assessment of the overall
operations of a plant in the sense that satisfactory conditions
are not commented upon.
Its second fear is of negative, even sensational
ist, reporting, which it anticipates would have seri
ous effects in an industry which has little consum
er loyalty (because meat is regarded as a
low-involvement product) and a consistently very
low profit margin (historically less than 1% of
sales).
In this fashion, the issue was joined.
* * *
One severable matter should be disposed of right
away. The Motions Judge relied on subsection
20(6) of the Act to support his conclusion [at page
472]:
I do not find that this material comes within paragraph
20(1)(c) or (d) of the Act. Even if I am wrong in that
conclusion, the public interest in disclosure in this case clearly
outweighs any risk of harm to the applicant and the reports
should be released under subsection 20(6) of the Act.
But subsection 20(6) provides for the exercise of a
discretion by the respondent: "The head of a gov
ernment institution may disclose any record
requested under this Act ...." There is nothing in
the record to indicate that the respondent has
exercised this discretion. What he has done is
make a decision only under subsection 20(1) not to
refuse to disclose records. If he had made the
contrary decision under subsection 20(1), which is
effectively what he initially intended, he would
then have faced, if challenged, the necessity of
considering disclosure in the public interest. But
that is not his situation. It is one thing for a Court
to review a discretion which a Minister of the
Crown has exercised. It would be quite another
thing, and in my view would be entirely improper,
for the Court in the first instance to exercise the
Minister's discretion in his/her stead. Even on an
application for mandamus, a Court can only order
a Minister to act, not act for him/her. Apart from
the inherent impropriety, it does not take much
imagination to conjure up the perils to a fair
hearing which such an after-the-fact judicial deci
sion could lead to in the absence of evidence
adduced to that issue.
Subsection 20(6) cannot, therefore, be relied on
in this proceeding.
Another issue which may be disposed of as a
preliminary matter is any reliance on paragraph
20(1)(b) to inhibit disclosure beyond the extent to
which it has already been invoked by the respon
dent to justify his proposed excision of animal kill
counts and the number of plant employees in his
release of the reports.
Paragraph 20(1) (b) relates not to all confiden
tial information but only to that which has been
"supplied to a government institution by a third
party". Apart from the employee and volume
information which the respondent intends to with
hold, none of the information contained in the
reports has been supplied by the appellant. The
reports are, rather, judgments made by govern
ment inspectors on what they have themselves
observed. In my view no other reasonable interpre
tation is possible, either of this paragraph or of the
facts, and therefore paragraph 20(1)(b) is irrele
vant in the cases at bar.
Paragraph 20(1) (a) relating to trade secrets was
not argued, and I see no basis for its application.
With respect to paragraph 20(1)(d), I accept
the submission of the Information Commissioner
that this paragraph is intended to catch contractu
al situations not covered by paragraph 20(1)(c)
and hence can have no application to day-to-day
sales such as are principally in question in the
domestic meat industry. It may, however, have
some relevance with respect to international sales,
and in my view it is therefore better to continue to
consider paragraph (d) as in issue, along with
paragraph (c). '
* * *
The Motion Judge's decision on the law, set
against the background of the respondent's argu
ment, is as follows [at pages 461-468]:
With respect to paragraph 20(1)(c) the respondent alleges that
the applicant has shown no concrete examples of financial harm
caused by negative publicity. In addition, the harm alleged is
too remote. The paragraph requires evidence of direct causa
tion: that the disclosure itself will result in harm, not possible
media coverage. The respondent also claims that the exemption
is not justified under paragraph 20(1)(d) as the only contractu
al negotiations alleged to be endangered are the applicant's
negotiations with a U.S. firm which admittedly does its own
inspection of the premises. All other customers obtain informa
tion about the applicant's premises and products from a variety
of sources, of which these reports would only be one. And, in
any case, the release of reports which are over three years old
could hardly jeopardize current contractual negotiations.
' Some use was made, both at trial and on appeal, of
American law. The U.S. Freedom of Information Act, 5
U.S.C., § 552 (1970), has provisions similar to paragraphs
20(1)(a) and (b) but not to (c) and (d). See also, National
Parks and Conservation Ass'n v. Morton, 498 F.2d 765 (D.C.
Cir. 1974); National Parks and Conservation Ass'n v. Kleppe,
547 F.2d 673 (D.C. Cir. 1976); Westinghouse Elec. Corp.—
Research and Development Center v. Brown, 443 F.Supp. 1225
(D.C. Va. 1977); Gulf & Western Indus. Inc. v. U. S. 615 F.2d
527 (D.C. Cir. 1979); Public Citizen Health Research Group v.
Food and Drug Admin., 704 F.2d 1280 (D.C. Cir. 1981).
As one intervenor, the Information Commisioner adds to
these submissions on paragraphs 20(1)(c) and (d) the follow
ing: a reasonable person reading the reports will recognize their
limitations and will also note the acceptability and letter rating
of each plant, which provide a more balanced overview. The
unpleasant nature of the information is not in itself grounds for
refusing to disclose. The letter included with the reports already
disclosed sets out the applicant's concerns in this regard and
would reduce any negative impact in the mind of the reasonable
reader. Releasing the reports with the letter is no different from
releasing the quarterly summaries already approved by the
Meat Council. The applicant has remedies at common law in
the event of any misleading or inaccurate information pub
lished as a result of the disclosure of the reports.
In a more recent decision, Sawridge Indian Band v. Canada
(Minister of Indian Affairs and Northern Development)
(1987), 10 F.T.R. 48 (F.C.T.D.), my colleague, Martin J.
considered the specific paragraphs which concern us here. In
that case an Indian Band sought to restrain the disclosure of
their membership rules, claiming that they intended to recoup
the expenses connected with their preparation by charging a fee
to other Bands who wished to obtain a copy as precedent. The
issues under paragraphs 20(1)(c) and (d) arose in connection
with a review of the Minister's decision not to issue a notice
under section 28 of the Act as he did not consider the third
party to be affected in any of the ways set out in subsection
20(1). The Court's review was confined to a consideration of
whether that decision had been properly made. Martin J. also
went on to say that he would have made the same determina
tion on the facts before the Minister. His reasons reflect the
degree of evidence required to discharge the onus on an appli
cant seeking to apply these provisions [at pages 56-57]:
If the applicant has been able to obtain some benefit for his
Band by allowing other Bands to use the rules as a precedent
for drafting their own rules he has indeed been fortunate. In
this respect the evidence is neither detailed nor convincing.
Apparently a number of copies of the rules were given to other
Bands. No money which could be directly attributed to the
release by the applicant of the rules was received in return.
Instead the evidence indicates that the Band received certain
benefits by way of support for actions it has against the federal
Government.
Given the information which the respondent had at the time
he decided not to proceed under s. 28 of the Act, and in
particular the rules themselves, and given the representations
which were made subsequently, including the material in sup
port of this application, the respondent could not then and
could not now be expected to conclude that the release of the
rules would or might effect any of the results described in s.
20(1)(c) or (d). To expect the respondent to conclude that the
release of the rules would or might give rise to such results
would be to expect him to engage in the height of speculation.
I endorse the sense of these remarks that evidence of harm
under paragraphs 20(1)(c) and (d) must be detailed, convinc
ing and describe a direct causation between disclosure and
harm. It must not merely provide grounds for speculation as to
possible harm.
The American test, then, depends upon "evidence revealing
actual competition and the likelihood of substantial competitive
injury". Actual competitive harm from the disclosure of docu
ments not yet released is, of course, impossible to show and is
not required. Conclusory and generalized allegations of harm
are, however, unacceptable. While the actual terms of the
exemption in the U.S. statute may differ, this standard of proof
seems to coincide with the tests set out in the Canadian cases
referred to above. The evidence must not require pure specula
tion, but must at least establish a likelihood of substantial
injury. This also seems to be the test incorporated in para
graphs 20(1)(c) and (d) of the Canadian Act where the word
ing used is "could reasonably be expected to" result in harm.
The expectation must be reasonable, but it need not be a
certainty.
The learned Motions Judge, sailing as he was in
completely uncharted waters, set out in these pas
sages a statement of the law which seems to me,
with the greatest of respect, to be somewhat
imprecise and misleading in all its elements, viz.,
that "evidence of harm under paragraphs 20(1) (c)
and (d) must be detailed, convincing and describe
a direct causation between disclosure and harm." 2
By "detailed" he perhaps meant only "specific", as
used in subsection 2(1), but the connotation of
"detailed" is of greater particularity, and of more
particularity than may be necessary for the esti
mation of a reasonable expectation under para
graphs (c) and (d). By "convincing" he may have
meant only that the appellant bore the burden of
proof, or that the evidence must not be merely
speculative, but again the connotation of the word
seems to imply more, and that "more" is unde-
2 The Motions Judge seems to have adopted the words
"detailed", and "convincing" from the decision he cited of
Martin J. in the Sawridge case, where they are employed but
not elevated to the status of a test. His notion of direct
causality appears to be drawn from Stevenson J. in Re Daigle
(1980), 30 N.B.R. (2d) 209 (Q.B.), which he cites, but there
the New Brunswick statute [Right to Information Act, S.N.B.
1978, c. R-10.3, s. 6(c)] reads: "There is no right to informa
tion under this Act where its release ... would cause financial
loss ...." [Emphasis added.]
fined. However, the greatest concern must be over
his adoption of the concept of direct causation.
Set against the background of the respondent's
argument before him, this bears the meaning that
any harm which might result from media coverage
as opposed to the contents of the reports them
selves is irrelevant, and this was indeed the argu
ment initially made by the respondent before this
Court, later modified through a distinction be
tween reasonable and unreasonable media cover
age. On the second version of the appellant's argu
ment reasonable reporting would be embraced in
direct causality, but no account need be taken of
sensationalized reporting. Neither of those conten
tions appears to constitute a fruitful approach to
the interpretation of the Act.
One should not, it seems to me, ignore the
obvious analogy to tort law in relation to questions
of causality. The high point of the concept of
direct causality in tort may be located in the case
of In re Polemis and Furness, Withy & Co.,
[1921] 3 K.B. 560 (C.A.), where ship charterers
were held liable for all damage directly traceable
to the negligent act. Of this approach Mr. Justice
Allen M. Linden, Canadian Tort Law, 3rd ed.
Toronto: Butterworths, 1982, at pages 341-342,
comments:
One test utilized for a time, and now out of use, was that of
directness . :.. Polemis did not deserve to survive. It was
rightly jettisoned in The Wagon Mound (No. 1) 3 and supplant
ed by the foresight test which is the current rage.
Mr. Justice Linden subsequently remarks, at page
352, that "The Wagon Mound (No. 2)' has cer
tainly swung the pendulum back in the direction of
Polemis," but this swing of the pendulum is with
respect to the result of expanding tortious liability
3 [Overseas Tankship (U.K.) Ltd. v. Mort's Dock and Engi
neering Co. Ltd. (The Wagon Mound) (No. 1)] [1961] A.C.
388; [1961] 1 All E.R. 404 (P.C.).
4 [Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co.
Pty., The Wagon Mound (No. 2)] [1967] 1 A.C. 617; [1966] 2
All E.R. 709 (P.C.).
rather than by restoring the direct causality con
cept. As a matter of fact, the language of the Act
in paragraphs (c) and (d), which in all cases
utilizes the wording, "information the disclosure of
which could reasonably be expected to ...", seems
to be closer to a "foreseeability" test than to a
direct causality analysis.
It was argued that the use of the verb "result in"
in paragraph (c) implies the necessity of direct
causality between the disclosure and the material
financial loss. But even apart from the fact that
this verb appears in only the first of the three
alternatives in paragraphs (c) and (d), it seems to
me that it is a much weaker verb from the view
point of direct causality than the verb "cause"
itself, with all its ambiguities, would have been.
In the French text the parallel verb to "result
in" is causer, which might perhaps be thought to
have a stronger flavour of direct causality. But in
both Petit Larousse illustré, Paris, 1974, and
Ouillet Flammarion, Paris, 1963, two meanings
are provided for causer: être cause de and occa-
sioner. Petit Robert, Paris, 1973, offers more
options but includes these two. Clearly, causer is
as ambiguous in relation to the directness of caus
ality in French as to cause is in English, since it is
as likely to mean occasioner as être cause de.
What governs, I believe, in each of the three
alteratives in paragraphs (c) and (d) is not the
final verb ("result in", "prejudice" or "interfere
with") but the initial verb, which is the same in
each case, viz. "could reasonably be expected to".
This implies no distinction of direct and indirect
causality but only of what is reasonably to be
expected and what is not. It is tempting to analo-
gize this phrasing to the reasonable foreseeability
test in tort, although of course its application is not
premised on the existence of a tort.
However, I believe the temptation to carry
through the tort analogy should be resisted, par
ticularly if Wagon Mound (No. 2), supra, is
thought of as opening the door to liability for the
mere possibility of foreseeable damage, as opposed
to its probability. The words-in-total-context
approach to statutory interpretation which this
Court has followed in Lor-Wes Contracting Ltd. v.
The Queen, [1986] 1 F.C. 346; (1985), 60 N.R.
321 and Cashin v. Canadian Broadcasting Corpo
ration, [1988] 3 F.C. 494 requires that we view the
statutory language in these paragraphs in their
total context, which must here mean particularly
in the light of the purpose of the Act as set out in
section 2. 5 Subsection 2(1) provides a clear state
ment that the Act should be interpreted in the
light of the principle that government information
should be available to the public and that excep
tions to the public's right of access should be
"limited and specific". With such a mandate, I
believe one must interpret the exceptions to access
in paragraphs (c) and (d) to require a reasonable
expectation of probable harm. 6
There was much argument relating to the proper
standard of appellate review, but all parties agreed
that if an error of law at first instance were
established, the appropriate course would 'be for
this Court to weigh the facts on the basis of the
correct legal test, and to arrive at its own conclu
sions on the facts. To this task I must therefore
turn.
* * *
The federal meat inspection system in Canada is
carried out by resident on-site inspectors, regional
supervisors and headquarters inspectors from
Ottawa. The largest meat plants may have thirty
or more on-site inspectors who monitor and
approve all meat products on a day-to-day basis.
Their work is reviewed mostly by regional supervi
sors and quarterly, semi-annually or annually by
headquarters personnel. It is only the reports of
5 The same "could reasonably be expected to" phrase is
found in sections 16, 17 and 18, but I believe that only
subsection 2(1) is decisive as to its meaning.
6 This is not unlike the test adopted by Lacourcière J. in a
different context in McDonald v. McDonald, [1970] 3 O.R.
297 (H.C.), at p. 303, that "Reasonable expectation ... implies
a confident belief'.
this third level of inspection which are in question
here.
Ms. Kristine Stolarik, Acting Head of the
Access to Information and Privacy Unit of
Agriculture Canada, described this audit process
as follows in her affidavit [at pages 452-453]:
2. National Veterinary Auditors employed in the Meat
Hygiene Division, Food Production and Inspection Branch of
the Department of Agriculture Canada ("Agriculture Cana-
da") review meat slaughter and processing plants at least once
a year. The review is completed in the form of a visit to the
establishment.
3. The review of a slaughter establishment is usually started at
the finished product area and progresses from the shipping
dock, through the packaging, processing, boning, cut-up, cool
ers, kill floor and livestock areas.
4. At the end of the physical review of the facility, a meeting is
held with plant management at the establishment to discuss the
deficiencies encountered during the review, any action required
and commitments from plant management in respect of correc
tive action.
5. After the review and discussion, the National Veterinary
Auditor makes an audit report entitled "Inspection Report" in
respect of the particular establishment, copies of which are
given to plant management, the Regional Office of Agriculture
Canada and to the Audit Chief in the Meat Hygiene Division,
Food Production and Inspection Branch and Agriculture,
Canada.
6. No unique processes, or trade secrets are revealed in the said
Inspection Reports. The Inspection Report is a working docu
ment for Agriculture Canada and is a necessary tool in the
national meat inspection system. The Inspection Report,
because it is designed to underline problem areas at an estab
lishment in order to initiate corrective action, does not typically
list or detail favourable information about the facilities and
operations at that establishment. The focus of this working
document is a determination of either "acceptable" or "unac-
ceptable" conditions.
In summary, during these brief inspections no
quantitive or microbiological analysis is per
formed. The assessment is rather of the physical
condition of the meat packing facility, of the
manufacturing process, and of the inspection pro
cess itself (A.B. 50).
The headquarters audit team usually includes
one or more Foreign Review Officers ("FRo's").
In the case of plants which export to the United
States, like those covered by the audits in the cases
at bar, the FRO'S are members of the U.S. Depart
ment of Agriculture, who participate in the inspec
tion, ask their own questions, and prepare
independent reports on each establishment for
Washington. It was conceded by the appellant's
counsel in argument, and also appears from the
cross-examination of their witness Joseph Krochak
(A.B. 196), that these reports, although not identi
cal with those prepared by the Canadian auditors,
are similar in content.' All of the American
Reports have been available to the public under
the U.S. Freedom of Information Act since 1974.
The Canadian reports were also available in
Ottawa from late 1980 or early 1981 to 1983, but
have not been released since the coming into effect
of the Access to Information Act on July 1, 1983.
The record contains four affidavits presented by
the appellant and the cross-examination of the
affiants, who were Joseph Krochak and Richard S.
Laws, both associated with the appellant, Dr.
Donald N. Thompson, a university expert on mar
keting, and David M. Adams, the General Manag
er of the Canadian Meat Council.
Dr. Thompson asserted that the impact of nega
tive information on low-involvement products is
universally accepted (A.B. 412), that red meat is
such a low-involvement product (A.B. 410), and
that in his opinion negative information would
impact both on the companies mentioned and on
the product category as a whole (A.B. 433). I find
this analysis persuasive as far as it goes, but he
claimed no knowledge as to the kind of informa
tion that would affect red meat consumers (A.B.
464) and no specific information on the meat
industry itself (A.B. 430). On balance, I find his
evidence too speculative to be determinative in
relation to the legal standard of the probability of
material harm.
' A comparison was available of two reports, at pp. 140 and
153, and at pp. 142 and 154, of the Confidential Appeal Book.
The U.S. reports are more summary, the Canadian ones more
discursive, but both fasten on the same defects.
In fact, what is most striking about the evidence
of all four affiants is their inability to sustain the
appellant's fear of unfair press coverage, let alone
the effect such coverage might have. Mr. Krochak
was not aware of any problems resulting either
from the sometime availability of the Canadian
reports or the continuing availability of the U.S.
ones (A.B. 191, 205-206). Mr. Laws expressed the
opinion that "fortunately we haven't had this kind
of publicity in our industry" (A.B. 298). Mr.
Adams could offer no specific example (A.B. 541,
546).
Dr. Thompson had many examples that he con
sidered relevant but all dealt with actual or per
ceived product safety issues relating directly to end
products, and/or the reports had been given credi
bility by government action. Among his examples
were: twelve U.S. meat plants banned by the
Canadian Government from exporting meat to
Canada because of unsanitary product as well as
plant conditions (A.B. 396-398); the tainted tuna
scandal (A.B. 406, 409, 443, 469); the Tylenol
scare (A.B. 407, 419-421); the Rely Tampon prob
lem (A.B. 420). Mr. Adams also referred to a
buffalo meat scandal (A.B. 494, 543). If such
examples have any relevance, they are certainly
much further from the present case than are the
similar reports available in the United States for
many years and the very same reports in Canada,
which were available for some two years, both
relating primarily to plants rather than to prod
ucts. No evidence was presented of any unfavour
able publicity with respect to either. I find the
appellant's argument on the effect of press cover
age to be the sheerest speculation.
The question remains as to the alleged inherent
ly negative character of the reports themselves. I
have already referred to the covering letter pro
posed to be sent out by the respondent along with
the reports in question. A new audit report form
(A.B. 709, 713) has recently been devised by the
respondent in collaboration with the Canadian
Meat Council which would give a precise overall
rating (AAA, AA, A, B, C, and F) to each estab
lishment and in general further diminish any nega
tive impact from release, as Mr. Adams admitted
(A.B. 534 ff.). However, this new formal plays no
role in the cases at bar.
I believe that the concluding sentence of the
proposed covering letter, acknowledging as it does
that "the report does not give a fair assessment of
the overall operations of a plant" may be taken as
an admission that the reports are in some measure
negative.
I take it from the introductory words of subsec
tion 20(1), viz., that "the head of a government
institution shall refuse to disclose any record
requested under this Act ...", that a decision must
be taken with respect to each distinct audit report.
Nevertheless, since the judgment that is required
involves the measurement of reasonable expecta
tions, in my opinion it is necessary to view each
report in the context of other reports requested for
release with it, as the total contents of a release are
bound to have considerable bearing on the reason
able consequences of its disclosure.
In the cases at bar, I have carefully scrutinized
each report and have also considered them in
relation to the others requested. (I refrain from
explicit comment on their contents to preserve
their confidentiality through the time for appeal).
I would say in summary form that, although all
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. With respect to the "worse" of
the two plants, there is a second report with fewer
negatives. At most, the reports would raise ques
tions as to what steps the appellant took to remedy
the deficiencies noted, questions which I can only
suppose would be easily answered, especially given
the fact that the appellant was not even the owner
of the "worse" plant at the time of the reports. The
appellant has not, therefore, met the onus on it to
establish that the reports should not be released.
* * *
In summary, the test for disclosure of government
records under section 20 of the Act is, as I have
indicated, not a class test. Each report must be
judged on its own (in relation only to its fellows)
as to whether a third party like the appellant is
entitled to block its release under any of the four
paragraphs of subsection 20(1).
A decision under subsection 20(1) is not, how
ever, the end of the matter. If a report were
sufficiently negative as to give rise to a reasonable
probability of material financial loss to a third
party, a Minister of the Crown would then have to
take his/her responsibility under subsection 20(6)
by determining whether "the public interest as it
relates to public health, public safety or protection
of the environment ... clearly outweighs in impor
tance any financial loss" to the third party. This is
not, as I have held, a discretion which can be
exercised in the first instance by a court. No such
further questions, however, arise at this stage of
these cases.
I would dismiss the appeals with costs.
HEALD J.: I agree.
URIE J.: I agree.
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.