THE INFORMATION COMMISSIONER OF CANADA Applicant v. TORONTO PORT, 2016 FC 683

Date: 20160808 Docket: T-1453-14 Citation: 2016 FC 683 Ottawa, Ontario, August 8, 2016 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: THE INFORMATION COMMISSIONER OF CANADA Applicant and TORONTO PORT AUTHORITY Respondent and CANADIAN PRESS ENTERPRISES INC. Added Party PUBLIC JUDGMENT AND REASONS I. Introduction A. Nature of the Matter [ 1 ] The Information Commissioner of Canada [the Commissioner or OIC] brings this application for judicial review pursuant to paragraph 42(1) (

a) of the Access to Information Act , RSC 1985, c A-1 [ATIA] on behalf of Canadian Press Enterprises Inc. for an order directing the Toronto Port Authority, now Ports Toronto [TPA], to disclose the Minutes of a TPA Audit and Finance Committee [the Committee] Meeting. B.

Background [ 2 ] TPA is a government business enterprise that owns and operates three pieces of infrastructure in the City of Toronto: Billy Bishop Toronto City Airport, formerly known as the Toronto City Centre Airport [TCCA], the Port of Toronto and the Outer Harbour Marina. [ 3 ] TPA is established under the provisions of the Canada Marine Act , SC 1998, c 10 [Marine Act]. TPA is accountable to the Canadian Government through Transport Canada. It maintains a nine member Board of Directors appointed by all three levels of government [Board], some of who sit as members of the Committee.

There is no dispute that for the purpose of paragraph 3 (

a) of the ATIA , TPA is a “government institution” included in

Schedule I of the ATIA. [ 4 ] On December 23, 2008 the Committee met [the Meeting] and minutes of that meeting were generated [the Minutes]. [ 5 ] On June 8, 2009, a Canadian Press Reporter [the Requester] filed an access to information request with TPA requesting, among other documentation, the “notes/minutes/recordings” of the Meeting.

On September 10, 2009, TPA refused to release any part of the Minutes to the Requester on the basis that they contained commercial and financial information, the release of which would prejudice TPA’s competitive position and were therefore exempt from disclosure under the ATIA . [ 6 ] As a result of the TPA refusal, the Requester filed a complaint with the Commissioner dated September 24, 2009. On October 19, 2009 the OIC notified TPA of the complaint and its intention to carry out an investigation.

On November 19, 2010, the OIC contacted TPA and requested the relevant documents from TPA and that they provide the underlying rationale for the exemptions claimed. [ 7 ] On January 31, 2011, TPA responded to the OIC reasserting its position that the Minutes contained commercial information that would prejudice TPA’s competitive position and that TPA was relying on paragraphs 18 (

a) and 18(

b) of the ATIA in refusing to disclose the Minutes to the Requester. [ 8 ] On March 28, 2011 the OIC requested that TPA provide a detailed rationale/justification for each instance where it sought to maintain an exemption under paragraphs 18(

a) and 18(

b) and that TPA advise whether it had considered severing any of the information and disclosing part of the Minutes as required by

section 25 of the ATIA . [ 9 ] The OIC did not receive a formal response to its March 28, 2011 request. On September 16, 2011 the OIC wrote to the President and Chief Executive Officer of TPA [the “Head”] pursuant to paragraph 35(2) (

b) of the ATIA inviting TPA to provide representations and evidence by October 5, 2011 demonstrating (1) that the Minutes fall within the scope of the paragraphs 18(

a) and 18(

b) exemptions; and (2) how TPA had exercised its discretion to withhold the information under those exemptions. The letter further requested that TPA consider whether portions of the Minutes could be reasonably severed under

section 25 of the ATIA. [ 10 ] In the September 16, 2011 letter the OIC also expressed the preliminary view that TPA had not discharged its onus of demonstrating that: (1) the Minutes fall within the scope of the exemptions under paragraphs 18(

a) or 18(b); (2) it had reasonably exercised its discretion in not disclosing the Minutes to the Requester; and (3) it had given due consideration to whether or not the Minutes could be severed and partly disclosed pursuant to

section 25 of the ATIA . [ 11 ] On November 16, 2011, the Head of TPA responded to the OIC, stating that the exemptions claimed under paragraphs 18(

a) and 18(

b) need to be considered in the context of TPA’s commercial mandate as set out at

section 4 of the Marine Act . The Head’s reply advises that efforts were made to sever information pursuant to

section 25 of the ATIA and advances TPA’s rationale for not being in a position to sever any of the information in the Minutes. In this letter TPA also invokes the mandatory exemptions relating to third party information set out at paragraphs 20(1) (

b) and 20(1)(

d) of the ATIA . [ 12 ] On December 21, 2011 the OIC wrote to the Head of TPA pursuant to paragraph 35(2) (

b) of the ATIA inviting further representations on the subsection 20(1) exemptions. The OIC also advised that it remained unconvinced that TPA had properly applied the

section 18 exemptions again inviting further representations. On January 13, 2012, the Head of TPA provided further representations reiterating TPA’s position in relation to the claimed exemptions. [ 13 ] In February, March and April of 2013 the OIC and TPA wrote to the private sector third party whose information formed the basis for TPA’s subsection 20(1) exemptions. The OIC advised the third party that it was not convinced that the subsection 20(1) exemptions applied to the information in issue and was therefore seeking submissions from the third party.

The third party did not reply to the OIC correspondence. [ 14 ] On September 12, 2013, the Commissioner wrote to the Head of TPA, pursuant to subsection 37(1) of the ATIA advising that based on the representations provided by TPA and the evidence gathered in the course of the OIC investigation, the claimed exemptions were generally not justified and the Requester’s complaint was well-founded.

The Commissioner recommended that the Minutes be released in their entirety [the Subsection 37(1) Recommendation] and requested that TPA inform her of whether it intends to implement the recommendation or provide reasons for not taking the recommended action. The Commissioner further stated that upon being advised of TPA’s position on the recommendation the results of the investigation would be reported to the Requester. [ 15 ] Subsequent to the subsection 37(1) Recommendation there were further discussions between the OIC and TPA.

The Head of TPA wrote to the Commissioner on October 28, 2013 [the October 28, 2013 Letter] consenting to the disclosure of a redacted version of the Minutes although TPA maintained its position that the whole of the Minutes were exempt based on the exemptions claimed under paragraphs 18(

a) and 18(

b) and subsection 20(1). In this Letter the Head of TPA also states “further that the Minutes represent an account of consultations and deliberations of directors, officers and employees of the TPA, which may be exempted under s. 21(1)(

b) of the Act.” [ 16 ] For the purpose of this application, paragraph 21(1)(

b) is a discretionary exemption that allows for the non-disclosure of accounts of consultations or deliberations of directors, officers or employees of a government institution. TPA had not previously identified or relied on the paragraph 21(1)(

b) exemption. TPA subsequently delivered a severed or redacted version of the Minutes to the Requester again asserting paragraph 21(1)(

b) as a basis for non-disclosure of the redacted portions of the Minutes [the Redacted Minutes]. [ 17 ] As a result of TPA’s position the OIC entered into an email exchange with the Requester to determine if the Requester was satisfied with the TPA disclosure of the Redacted Minutes. The OIC expressed the view that the disclosure fell well short of what had been recommended. In response, the Requester advised the OIC that he remained interested in pursuing the file and would like as much information as possible to be released.

The OIC advised the Requester that there remained an opportunity to further negotiate with TPA and asked whether there was something specific in the Minutes being sought. The Requester confirmed that “I wouldn’t say there’s anything specific. My concern is more around the fact that a significant amount of the information is still redacted.” [ 18 ] The OIC informed TPA via email that the Requester was not satisfied with the disclosure and indicated that as a result the OIC would proceed with its process.

TPA inquired as to the basis of the dissatisfaction to determine if there was something more that might be provided to resolve the situation. The OIC subsequently advised TPA that the Requester wants access to the Minutes in their entirety. [ 19 ] On May 12, 2014, the OIC’s report and recommendation was issued to the Requester pursuant to subsection 37(2) of the ATIA [the Final Report].

The Final Report concludes that the complaint was well- founded, that the Commissioner’s recommendation to TPA was that the latter release the Minutes in their entirety, and that the OIC had recorded the complaint as unresolved on the basis that TPA’s action taken was inadequate. The Final Report notes that TPA raised the paragraph 21(1)(

b) exemption for the first time on October 28, 2013 after the Commissioner reported her findings to TPA. In this regard the Final Report concludes that TPA failed to meet its burden in justifying the application of the paragraph 21(1)(

b) exemption and had also failed to provide any evidence to demonstrate a weighing of the factors for and against disclosure and the exercise of discretion in applying the exemption. [ 20 ] On May 13, 2014, the Requester consented to the Commissioner applying to the Federal Court, pursuant to paragraph 42(1) (

a) of the ATIA , for a review of TPA’s refusal to disclose the Minutes in their entirety. C. The Redacted Minutes [ 21 ] As mentioned above, TPA provided the Redacted Minutes to the Requester. Those Redacted Minutes are in the applicant’s Public Application Record. The Redacted Minutes detail several topics and issues, including discussions relating to the purchase and financing of a new ferry to service the TCCA. The Redacted Minutes set out the following in this regard: 3.

Ferry The Committee had before it a report from the Acting President & CEO outlining New Ferry Financing Options – BMO Term Sheet with a recommendation that the Committee approve the $5 million Credit Facility made available by the Bank of Montreal ( “BMO” ) for the purchase of a second Ferry, to provide service to the TCCA. The report also set out BMO Term Loan Conditions for the new credit facility. The Acting President & CEO reported that Management was seeking approval of the New Ferry and that the total cost including engineering, project management and soft costs totalled $4.85 million.

The Acting President & CEO advised that Management had gone through the Request for Proposals (“RFP”) process and had received bids from three ship builders.The Acting President & CEO reported that there was a substantial difference between bidders from lowest to highest and Management was pleased with the results and were currently negotiating with the lowest bidder torefine the amount.[22] On the following page of the Redacted Minutes it states “The Director of TCCA reported that in terms of budget price and the bid/ask range Hike Metals (‘Hike’), the lowest bidder, was satisfied they couldmeet the price.”[23] Later in the Redacted Minutes it states:It was moved by Mr.

Mark McQueen that the Audit & Finance Committee recommend to the Board of Directors construction of a New Ferry to TCCA and the project cost not to exceed $4,850,000.00. Motion carried.Approved. Mr. Henley voted against the motion.[24] On the next page it states:The Acting President & CEO indicated that it was his recommendation that the Committee approve the credit facility of $5 million made available by BMO and forward the Committee’s recommendation to the Board ofDirectors for approval.It was moved by Mr. Mark McQueen and seconded by Mr.

Colin Watson that the Committee approve the $5 million Credit Facility made available by the Bank of Montreal for the purchase of a second ferry to provideservice to the TCAA. Motion carried.Approved. Mr. Henley voted against the motion. D. The Watson Report [25] On June 25, 2009 the Office of the Conflict of Interest and Ethics Commissioner released a report titled the Watson Report.

The Watson Report, which is publicly available, responds to an allegation byChristopher Henley, a member of the Board, that Colin Watson, another Board member was in a potential conflict of interest in participating in matters before the Board relating to a proposal to acquire a new ferry. Thatparticipation included the Meeting of which the Minutes are the subject. The Ethics Commissioner concludes that no conflict existed.

In reaching this conclusion the Watson Report details many of the issues andcircumstances that have been redacted from the Minutes.[26] A primary issue in this dispute pertains to whether the Watson Report negates the applicability of any of the exemptions to the Minutes, as well as the effect of the Watson Report on the exercise of discretion inthe Head of TPA’s refusal to disclose the Minutes in their entirety.[27] I find that the Watson Report is a credible and detailed document that is focused on the ferry acquisition, and reports on the acquisition process including the December 23, 2008 Meeting.

For the reasonsprovided below, I conclude that the Watson Report does indeed negate the application of some of the ATIA exemptions to portions of the Minutes, and that the nature of the Watson Report was a relevant factor for thepurpose of the exercise of discretion pursuant to paragraph 21(1)(

b) of the ATIA. II. Preliminary MattersA. Confidentiality Order [28] Prior to the hearing of this application, Prothonotary Mireille Tabib, acting pursuant to Rules 151 and 152 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] and subsection 47(1) of the ATIA,issued a confidentiality order on July 29, 2014 [the Confidentiality Order] to protect the substance of the information at issue in this matter.[29] At the outset of the hearing, counsel for the respondent made submissions on the need to proceed in camera for a portion of the hearing.

After discussion with the parties, and with the intent of minimallyinfringing on the open Court principle, the Court heard those submissions requiring an examination of the Minutes themselves and relating to the application of the ATIA exemptions claimed in camera. The Court alsoheard some argument relating to the respondent’s consideration of the discretionary exemptions and remedy in camera. The Court heard the majority of the oral submissions in public. B.

Further Submissions Received from the Parties [30] At the hearing of this matter, counsel for the applicant raised the issue of the availability of the paragraph 21(1)(

b) exemption to the respondent. Counsel for the respondent objected to the applicant raising thisissue, arguing that it was not raised in the Notice of Application or the Memorandum of Fact and Law. The respondent was of the view that in the circumstances it could not properly respond. The applicant was of the viewthat the issue was directly tied to the respondent’s prematurity argument and as such was a matter that was properly before the Court.[31] Counsel for the respondent agreed that an opportunity to provide post-hearing submissions may address the concern.

I therefore heard the applicant’s oral arguments on the issue, and the respondent’s brief oralresponse. The Court received additional written submissions from the respondent on October 30, 2015 and a reply from the applicant on November 6, 2015.[32] In the further written submissions the respondent maintains its objection to the Commissioner pursuing the argument that TPA is barred from relying on the 21(1)(

b) exemption. The respondent submits that theopportunity to provide further submissions does not correct the evidentiary prejudice it has suffered as a result of not having the opportunity to introduce evidence relating to the exchanges between the OIC and TPA in theperiod before and after TPA made the paragraph 21(1)(

b) refusal. Those submissions also argue that even if the applicant could raise this new argument in oral submissions, the argument is of little effect as the applicantnever raised this issue at any time during the OIC’s process including in the Final Report when the Commissioner concluded TPA did not meet its burden of justifying its refusal under paragraph 21(1)(

b) of the ATIA.[33] I am satisfied that the 21(1)(

b) exemption was available to TPA for the reasons set out below. C. Minutes and Relevant Legislation [34] The Minutes are reproduced in full at Appendix A. Relevant extracts from the ATIA, the Marine Act, and the Port Authorities Management Regulations, SOR/99-101 are reproduced at Appendix B. III. Issues [35] The Commissioner argues that TPA has failed to prove that the information redacted from the Minutes is exempt under the ATIA and that the Head of the TPA did not reasonably exercise his discretion inOctober, 2013 when determining that the Minutes would not be released in their entirety. The Commissioner further argues that TPA cannot rely on the exemption under paragraph 21(1)(

b) of the ATIA because TPAfailed to claim it prior to the issuance of the Commissioner’s Subsection 37(1) Recommendation on September 12, 2013.[36] TPA argues the entirety of the Minutes is exempt from disclosure based on the exemptions identified, individually or in combination, and that the Head of TPA reasonably exercised his discretion in disclosingthe Redacted Minutes to the Requester. TPA further argues that the Commissioner prematurely brought this application for judicial review as the Commissioner did not pursue any investigation of TPA’s reliance on theparagraph 21(1)(

b) exemption.[37] In order to determine whether or not the Minutes should be made available to the Requester in their entirety, it is necessary that the Court consider and determine the following issues:

(1) What is the applicable standard of review?

(2) Is the application for judicial review premature? This requires consideration of two sub-issues:

i) Was TPA in a position to claim an additional basis for exemption under paragraph 21(1)(

b) after receiving the Commissioner’s Subsection 37(1) Recommendation on September 12, 2013; andii) Was the OIC obligated to further investigate or engage with the Requester as a result of TPA’s claim of the paragraph 21(1)(

b) exemption after receiving the Subsection 37(1) Recommendation?

(3) Do the exemptions TPA has claimed under paragraphs 18(a), 18(b), 20(1)(b), 20(1)(

d) and/or 21(1)(

b) apply to the Minutes?

(4) If the discretionary exemptions under paragraphs 18(a), 18(

b) and/or 21(1)(

b) apply to any part of the Minutes:

i) Which party has the burden of demonstrating whether the Head of TPA reasonably exercised his discretion in deciding not to disclose redacted portions of the Minutes; andii) Did such a reasonable exercise of discretion occur in this case?

(5) If the Court determines that the application should be allowed in full or in part, what is the appropriate remedy? IV.

Overview of the ATIA [38] Prior to addressing the issues raised, an overview of the ATIA’s purpose and the jurisprudence interpreting the right to access records, the role of exemptions and the option to sever a record will be helpful.[39] In Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 , [2012] 1 SCR 23 at paras 21-22 [Merck], Justice Cromwell for the majority of the Supreme Court of Canada set out that Court’sjurisprudence on the purpose of the ATIA:[21] The purpose of the Act is to provide a right of access to information in records under the control of a government institution.

The Act has three guiding principles: first, that government information should beavailable to the public; second, that necessary exceptions to the right of access should be limited and specific; and third, that decisions on the disclosure of government information should be reviewed independently ofgovernment (s. 2(1)).

[22] In Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, at para. 61, La Forest J. (dissenting but not on this point) underlined that the overarching purpose of the Act is to facilitatedemocracy and that it does this in two related ways: by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and officials may be heldmeaningfully to account to the public. This purpose was reiterated by the Court very recently, in the context of Ontario's access to information legislation, in Ontario (Public Safety and Security) v.

Criminal Lawyers'Association, 2010 SCC 23, [2010] 1 S.C.R. 815. The Court noted, at para. 1, that access to information legislation "can increase transparency in government, contribute to an informed public, and enhance an open anddemocratic society". Thus, access to information legislation is intended to facilitate one of the foundations of our society, democracy. The legislation must be given a broad and purposive

interpretation, and due accountmust be taken of s. 4(1), that the Act is to apply notwithstanding the provision of any other Act of Parliament.[40] The Court adopts a broad

interpretation of the right of access under subsection 4(1) of the ATIA because it “may be considered quasi-constitutional in nature” (Canada (Information Commissioner) v Canada(Minister of National Defence), 2011 SCC 25 , [2011] 2 SCR 306 at para 40). The Supreme Court of Canada has held that while paragraph 2(

b) of the Canadian Charter of Rights and Freedoms does notguarantee access to information, “Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government” (Ontario (Public Safety and Security) vCriminal Lawyers’ Association, 2010 SCC 23 , [2010] 1 SCR 815 at para 30 [Criminal Lawyers’ Association]). A.

Right of Access, Exemptions & Severance [41] The ATIA, specifically subsection 4(1) provides a broad “right of timely access” (Statham v Canadian Broadcasting Corp, 2010 FCA 315 at para 1, 326 DLR (4th) 228, [Statham]) to any record under thecontrol of a government institution, subject to “a number of exemptions from the general rule of disclosure” (Merck at paras 24, 96). Hence “The

interpretation of a statutory exception in the Act must respect the purpose ofthe Act as stated in subsection 2(1) while at the same time give effect to the purpose of the exception. The right of the public to know the workings of government is not absolute.

It must yield to the values sought to beprotected by the statutory exceptions” (3430901 Canada Inc v Canada (Minister of Industry), (FC), [1999] FCJ No 1859 at para 44, 177 FTR 161 (TD) [Telezone FC]).[42] Yet “When it is remembered that subs. 4(1) of the Act confers upon every Canadian citizen and permanent resident of Canada a general right to access and that the exemptions to that general rule must be limitedand specific, I think it clear that Parliament intended the exemptions to be interpreted strictly” (Rubin v Canada (Canada Mortgage and Housing Corp), (FCA), [1988] FCJ No 610 at para 25, 52 DLR(4th) 671 (CA), [Rubin]).

Those exemptions exist from sections 13 to 24 of the ATIA, and as determined by the Supreme Court of Canada in Merck at paragraph 97:[97] They may be categorized according to whether they are class- or harm-based exemptions and according to whether they are mandatory or discretionary. Where there is a class exemption, the exemption applies toall records determined to fall into that class of record. However, a harm-based exemption applies only if the specified harm or risk of harm is present.

Some exemptions are mandatory: once the record has been shown tofall within the exemption, the head of the institution has no discretion and must refuse to disclose it, subject only to any applicable override, such as the one found in s. 20(6), a topic not in issue here.

Other exemptions arediscretionary: once there has been an initial determination that the record falls within the statutory exemption, the head has discretion as to whether or not disclosure will be refused or granted.[43] The subsection 20(1) exemption for third party confidential information is mandatory, in that “if the record falls within the exemption, the head must refuse to disclose it (putting aside the s. 20(6) publicinterest override)” (Merck at paras 24, 98). By contrast the exemptions under paragraphs 18(

a) and 18(

b) and 21(1)(

b) are discretionary.[44] However, regarding subsection 20(1) “The duty not to disclose these sorts of third party information must be read with s. 25 of the Act, which may be called the severance provision.

It requires the institution todisclose any part of a record that does not contain material which the institution is authorized not to disclose and which can reasonably be severed from any part that does contain exempted material” (Merck at para 25).Therefore, “the general right of access is subject to a duty on government institutions not to disclose these types of third party information, including information that would normally be subject to disclosure, but cannotreasonably be severed from the exempted third party information” (Merck at para 26). The severance provision under

section 25 applies to all exemptions, mandatory and discretionary (Canadian Council of ChristianCharities v Canada (Minister of Finance), (FC), [1999] FCJ No 771 at para 20, 168 FTR 49 (TD) [Canadian Council of Christian Charities]). V. Standard of Review [45] The parties do not dispute the applicable standard of review: “The question whether the claimed exemptions apply is reviewed on the basis of correctness.

The question of whether the discretion was properlyexercised is reviewed on the basis of reasonableness” (Canada (Information Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104 at para 18, 360 DLR (4th) 176 [Minister ofPublic Safety and Emergency Preparedness]).

When the Court reviews whether the information falls within an exemption under the ATIA, it does so de novo; but a de novo review does not apply to the exercise ofdiscretion question (Canada (Information Commissioner) v Canada (Minister of Industry), 2001 FCA 254 at para 85, 45 Admin LR (3d) 182 [Telezone FCA], Ucanu Manufacturing Corp v Defence Construction Canada,2015 FC 1001 at para 45 [Ucanu]). VI. Prematurity [46] The jurisprudence relating to the complaint process and the steps that must be exhausted prior to seeking judicial review are discussed below.

In this case however, the question of prematurity is bound up withthe question of whether TPA failed to invoke the paragraph 21(1)(

b) exemption in a timely manner and, if it did not, does the exemption remain available to TPA. A. The Complaint and Investigation Process under the ATIA [47] Based on the general right of access, an individual can make a request to a government institution for access to any record under its control (Subsection 4(1)). Where such a request is made, the governmentinstitution is obligated to; (1) make every reasonable effort to assist the requester; (2) respond to the request accurately and completely; and (3) provide timely access to the record in the format requested subject to theregulations (Subsection 4(2.1)).

Furthermore, the government institution must also give written notice to the requester as to whether or not it will give access to the record or a part thereof (Paragraph 7(a)). If thegovernment institution determines that the record requested is exempt under a provision in the ATIA and refuses access on that basis it must state the specific provision on which it based the refusal (Paragraph 10(1)(b)).Upon receiving a refusal, a requester can, within sixty days of receiving the notice of refusal, complain to the Commissioner in writing (Section 31).

Once the Commissioner receives the complaint she must, subject to theATIA, investigate (Paragraph 30(1)(a)).[48] In the context of discussing a deemed refusal, not the issue in this case, to give access to a record under subsection 10(3) of the ATIA, Justice Desjardins in Canada (Information Commissioner) v Canada(Minister of National Defence), [1999] FCJ No 522 at para 20, 240 NR 244 (CA) [National Defence] explained the investigation process under the ATIA:[20] The Commissioner may then initiate a complaint under

section 30 of the Act. He notifies the head of the institution (section 32).

He conducts the investigation, in the course of which the institution is given areasonable opportunity to make representations (subsection 35(2)) and for the purposes of which the Commissioner has extraordinary powers (section 36), including the power to summon and enforce the appearance ofpersons in the same manner and to the same extent as a superior court of record (paragraph 36(1)(a)), to enter any premises occupied by the government institution (paragraph 36(1)(d)) and to examine any record, as norecord may be withheld from him on any grounds (subsection 36(2)).

He provides the head of the institution with a report containing his findings and recommendations (paragraph 37(1)(a)).

He may specify the timewithin which the head is to give him notice of any action taken or proposed to be taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (paragraph 37(1)(b)); andreports the findings of his investigation to the complainant (subsection 37(2)), but where a notice has been requested under paragraph 37(1)(b)) no report shall be made until the expiration of the time within which thenotice is to be given to the Commissioner.[49] Justice Desjardins also noted that the Commissioner “is the master of his procedure pursuant to

section 34 of the Act” (National Defence at para 21). B. How & When Can an Application for Judicial Review be Brought under the ATIA? [50] Sections 41 and 42 allow for the bringing of applications for judicial review against a government institution that has refused access to a record.[51] At paragraphs 31 to 32 in Lukacs v Natural Sciences and Engineering Research Council of Canada, 2015 FC 267, 472 FTR 157 [Lukacs], Justice Anne Mactavish explained the Federal Court of Appeal’sjurisprudence on the conditions an applicant under

section 41 of the ATIA must meet before applying to the Federal Court for judicial review:[31] In Statham v. Canadian Broadcasting Corp., 2010 FCA 315 at para. 64, [2012] 2 F.C.R. 421, the Federal Court of Appeal identified three prerequisites that an individual seeking access to information must satisfybefore applying to the Federal Court under

section 41 of the Act. These are:1. The applicant must have been "refused access" to a requested record;2. The applicant must have complained to the OIC about the refusal; and3. The applicant must have received a report of the OIC under subsection 37(2) of the Act.[32] As Justice Stratas observed in Whitty v. Canada (Minister of the Environment), 2014 FCA 30, at para. 8, 460 N.R. 372,

section 41 of the Act "is a statutory expression of the common law doctrine that, absentexceptional circumstances, all adequate and alternative remedies must be pursued before resorting to an application for judicial review".[52] An application brought under

section 41 not meeting these conditions would be premature.[53] Paragraph 42(1)(

a) allows the Commissioner to apply for judicial review of any refusal to disclose a record under the ATIA or part thereof in respect of an investigation carried out if the Commissioner has theconsent of the requester. The Commissioner brought this judicial review application pursuant to that provision. C.

Is the Application Premature? [54] The respondent submits that the application is premature: TPA did not refuse to disclose further redacted portions of the Minutes as the Requester asked in his November, 2013 correspondence with the OIC,rather the OIC failed to ask TPA to disclose further redacted portions of the Minutes. The Requester took the position, after the release of the Redacted Minutes by TPA, that too much of the information had been redacted;the Requester did not, as the OIC presumed, take the position that the entirety of the Minutes needed to be disclosed.

TPA submits that the OIC did not provide TPA with the opportunity to address the Requester’s concernwith redacted portions of the Minutes, but instead prematurely proceeded with this application on the mistaken belief that the Requester was seeking disclosure of the Minutes in their entirety.[55] As a result, TPA argues that there was no refusal to release further information and that the OIC did not seek submissions from TPA in relation to the paragraph 21(1)(

b) exemption prior to providing its FinalReport to the Requester. Instead the Commissioner simply concluded that the paragraph 21(1)(

b) exemption was not justified and the entire Minutes should be disclosed. TPA argues that in doing so the Commissionerfailed to exhaust the informal methods of resolving the dispute arising from the Requester’s concern. I respectfully disagree.[56] In Luckacs, Justice Mactavish considered the propriety of a government institution amending its grounds for refusing access to a document once a complaint has been filed with the OIC.

Justice Mactavishconsidered Tolmie v Canada (Attorney General), [1997] FCJ No 1417 (TD) where Justice McGillis concluded that on the facts of the case the government institution was entitled to raise an additional ground during thecourse of the OIC investigation.

Justice Mactavish goes on to then state at paragraph 51 of Lukacs that:[51] It is thus clear that there is no blanket prohibition on the ability of government institutions to amend the grounds relied upon to justify the refusal of access to documents once a complaint has been filed with theOIC, and that they can amend the grounds of exemptions during the OIC investigative process.

[ 57 ] The availability for a respondent to amend the grounds for exemptions claimed during the OIC’s investigative process therefore engages a consideration of the question of whether the investigation is complete at the point the government institution claims a new exemption. The OIC argues that the investigation was complete upon delivery of the Subsection 37(1) Recommendation on September 12, 2013. TPA argues that the investigation was not complete until the Requester was notified of the results of the investigation under subsection 37(2) of the ATIA in the Final Report dated May 12, 2014. [ 58 ]

Section 34 of the ATIA vests in the Commissioner the discretion and authority to “determine the procedure to be followed in the performance of any duty or function of the Commissioner under the Act.” The ATIA prescribes requirements for the Commissioner to give notice before commencing an investigation and a reasonable opportunity for representations in the course of an investigation of a complaint to the head of the government institution (Section 32 and paragraph 35(2) (b)) respectively.

It also extends certain powers to the Commissioner (Section 36), requires that the Commissioner notify the head of a government institution where it finds a complaint well-founded, and allows the Commissioner to request that the head of the government institution provide reasons where a recommendation will not be implemented (Subsection 37(1)).

However, the ATIA does not prescribe when an investigation is complete. [ 59 ] Nowhere in the ATIA does it state that an investigation is complete upon providing the head of the government institution the Commissioner’s recommendations under subsection 37(1) but before providing the requester the final report under subsection 37(2) . As discussed earlier, sections 41 and 42 contain the conditions precedent to be met before the requester or the Commissioner can bring an application for judicial review.

Section 41 requires the requester receive a report under subsection 37(2) that constitutes the results of the Commissioner’s investigation and paragraph 42(1) (

a) requires that the Commissioner have carried out the investigation. However, neither provision specifies whether the investigation was carried out or complete after the Commissioner provides a report to the head of the government institution pursuant to subsection 37(1) but before providing the investigation report to the requester under subsection 37(2) . [ 60 ] The case-law also supports the proposition that the ATIA lacks a firm rule on when a government institution can no longer claim a new discretionary exemption and by implication when the OIC’s investigation into a complaint is complete.

Justice Mactavish held in Lukacs at paragraph 46 that “The jurisprudence has, moreover, established that a government institution can indeed amend the grounds asserted for denying access if it does so before the OIC has reported in relation to an access complaint.” [ 61 ] Justice Richard Southcott in Ucanu at paragraph 85 referred to this principle: “The Court’s recent decision in Lukacs v Natural Sciences and Engineering Research Council of Canada , 2015 FC 267 has clarified that a government institution is permitted to amend its grounds for refusal after a complaint has been filed with the Information Commissioner and while it remains under investigation by the Information Commissioner.” [ 62 ] Some might call this a loophole, but in my view the ATIA does not create a specific timeline for when an investigation is complete because of the preference to leave the decision regarding timelines in the hands of the Commissioner provided that the Commissioner complies with the mandatory requirements in the ATIA such as giving the head of the government institution a reasonable opportunity to make representations during the investigation: “The investigation the Commissioner must conduct is the cornerstone of the access to information system.

It represents an informal method of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power to make recommendations to the institution involved” (National Defence at para 27) . [ 63 ] Therefore, subject to meeting the mandatory requirements of the ATIA , Parliament has vested in the Commissioner the discretion to determine the procedure to follow when investigating a complaint under the ATIA, including the completion of the investigation.

When there is a dispute, as is the case here, the Court will consider all of the circumstances of the particular case both subjective and objective.

As such, while I am not prepared to conclude that an investigation will never be complete prior to reporting to the complainant under subsection 37(2) , the circumstances in this case, including the conduct of the OIC, lead me to conclude that the Commissioner did not view or treat the investigation as complete when delivering the Subsection 37(1) Recommendation to TPA on September 12, 2013. [ 64 ] In reporting to TPA, the Commissioner outlined the results of the investigation and then chose to provide TPA with a period of time to: (1) consider the recommendations made; and (2) in the event TPA did not agree asked that TPA “please provide me with reasons why you will not be taking the recommended action.” The Commissioner did not specify whether TPA could claim new exemptions at that time.

Furthermore, the OIC, in communications with the Requester after the delivery of the subsection 37(1) Recommendation and receipt of TPA’s response, does not signal that the investigation is complete, rather the opposite. The OIC advised the Requester that the opportunity remains to “negotiate further with TPA.” Finally and perhaps most persuasively, is the Commissioner’s Final Report to the Requester in May of 2014. In that Final Report, completed many months after TPA identified the paragraph 21(1)(

b) exemption in reply to the Subsection 37(1) Recommendation, the OIC does not take the position that the exemption was not available to TPA in October of 2013. Rather, under the heading “Investigation” , the OIC described TPA’s claiming the paragraph 21(1)(

b) exemption for the first time in the October 28, 2013 Letter. Subsequently, the OIC concludes that TPA “has not met its burden of justifying the application of paragraph 21(1)(

b) of the Act and that it has not provided any evidence that it has exercised its discretion to invoke the exemption, taking into consideration relevant factors for and against disclosure as of the date of its decision to apply the exemption.” [ 65 ] As a result I am of the view that the OIC investigation was ongoing, albeit substantially concluded, in September of 2013 and as such TPA remained in a position to rely on a previously unidentified exemption to justify non-disclosure of the Minutes. [ 66 ] However, TPA’s ability and decision to claim the paragraph 21(1)(

b) exemption in October of 2013, did not trigger an obligation upon the Commissioner to reopen or recommence what was in effect a substantially completed investigation as the respondent argues. [ 67 ] As noted above,

section 34 of the ATIA establishes the Commissioner as the master of her procedure ( National Defence at para 21). In this role it is appropriate for the Commissioner to consider all of the circumstances in determining how to advance a complaint through the process. In this case the circumstances demonstrate that:

(1) TPA had been actively engaged by the OIC at the outset of the complaint;

(2) TPA had been requested to provide representations on numerous occasions, throughout the investigation process asking that it identify the exemptions it was relying on, justifying those exemptions and demonstrating, in the case of the discretionary exemptions, that it had validly exercised its discretion in considering the obligation to sever under

section 25 of the ATIA ;

(3) TPA had been placed on notice as early as September 16, 2011 that the OIC had formed the preliminary view that the Minutes did not fall within the scope of the claimed

section 18 exemptions, that TPA had not demonstrated that it had reasonably exercised its discretion and that TPA had not given due consideration to severance of the Minutes under

section 25 , concerns that were repeated in subsequent exchanges of correspondence;

(4) On December 21, 2011 the OIC informed TPA of its concerns as they related to the subsection 20(1) exemption that TPA identified in November, 2011;

(5) The ATIA imposes a duty on government institutions to make every reasonable effort to assist requesters as well as provide timely access to requested records (Subsection 4(2.1)) and to identify the specific basis for a refusal to disclose (Paragraph 10(1)(b));

(6) The investigation had been ongoing for a four year period; and

(7) Reliance on the paragraph 21(1)(

b) exemption was raised for the first time virtually at the end of a lengthy investigation in the October 28, 2013 Letter, and in identifying the exemption TPA did not set out any justification for its application, or attempt to demonstrate how it had discharged its

section 25 duty to sever, a matter I address later in this decision. [ 68 ] Having considered all of these circumstances I am of the view that it was open to the Commissioner to conclude that further formal investigation was not required. It was also appropriate for the Commissioner to rely on the failure of TPA to advance any meaningful justification in claiming the paragraph 21(1)(

b) exemption to conclude in the Final Report, that TPA had failed to provide any justification for its reliance on the paragraph 21(1)(

b) exemption. [ 69 ] The prerequisites set out in Lukacs at paragraph 31 , modified for the

section 42 context, were all satisfied prior to the applicant initiating this judicial review application under paragraph 42(1) (

a) of the ATIA : (1) the Requester was “refused access” to a requested record in TPA’s control; (2) the Requester made a complaint to the OIC; (3) the OIC carried out an investigation of the Requester’s complaint; (4) the Requester received a report of the OIC under subsection 37(2) of the Act; and (5) the Requester provided consent to the Commissioner to bring this judicial review application. [ 70 ] The respondent relies on National Defence in support of its prematurity argument.

National Defence , however, addresses a situation where the Commissioner deprived the government institution of the investigation process under the ATIA .

In that case the Commissioner instituted a new complaint, immediately decided the complaint and then filed an application for judicial review without giving the government institution an opportunity to respond ( National Defence at paras 22-23). [ 71 ] By contrast, when the Court assesses the totality of the circumstances of this case it becomes apparent that the respondent here was extended a number of opportunities to claim exemptions and provide the basis being relied upon to justify those exemptions.

TPA was not deprived of an investigation as mandated under the ATIA as a result of its refusal to disclose the Minutes to the Requester in 2009. TPA made submissions over a four year period. In contrast to National Defence , the OIC conducted a full investigation over a prolonged period of time and chose not to pursue further investigation when TPA identified paragraph 21(1)(

b) as a basis for exemption after substantial completion of the investigation. [ 72 ] To impose an obligation upon the Commissioner to relaunch an investigation in these circumstances would open the door to substantially delayed investigations should government institutions identify claims for exemptions on a piecemeal basis. Such a result would, in my view: (1) frustrate the investigation process; (2) be contrary to the duties imposed upon government institutions under subsection 4(2.1) and paragraph 10(1) (

b) of the ATIA to make every reasonable effort to assist requesters and to identify the specific provision of the ATIA for a refusal, respectively; (3) undermine the Commissioner’s role as the master of her own process; and (4) potentially undermine the quasi-constitutional right of timely access ( Statham at para 1 ). [ 73 ] National Defence stands for the proposition that the Commissioner cannot seek judicial review from the Court without having investigated the complaint as required by the ATIA ( National Defence at para 27).

Similarly, a government institution cannot rely on its failure to claim an exemption in a timely manner during the Commissioner’s investigation to argue that the Commissioner failed to give it an opportunity to respond to the negative conclusion on its late claimed exemption. [ 74 ] The application is not premature. VII.

Are the Exemptions TPA has Relied on Applicable to the Minutes? [ 75 ] Prior to undertaking an analysis of TPA’s redactions and the ATIA exemptions TPA relied on to support those redactions I will set out the law as it relates to the exemptions claimed. [ 76 ] TPA originally relied upon paragraphs 20(1) (

b) and 20(1) (

d) to redact portions of the Minutes on the basis that the redacted information contained third party information within the meaning of subsection 20(1). TPA abandoned this position in its oral submissions and I have therefore not addressed subsection 20(1) in this analysis. A. The Jurisprudence

(1) Paragraphs 18(

a) and 18(b) [ 77 ] The parties do not dispute the well-established principle that as the party claiming the exemptions, TPA has the onus of proving on a balance of probabilities that the exemptions it has claimed apply to the Minutes ( Toronto Sun Wah Trading Inc v Canada (Attorney General) , 2007 FC 1091 at para 9 , 161 ACWS (3d) 517).

The question becomes what evidence TPA must bring to discharge this onus of proof, particularly where there is a requirement to establish either a substantial value or a reasonable likelihood of substantial value in the information (Paragraph 18(a)) or prejudice, interference with contractual or other negotiations (Paragraph 18(b)). [ 78 ] In Brainhunter (Ottawa) Inc v Canada (Attorney General) , 2009 FC 1172 , 356 FTR 166, Justice Luc Martineau held, at paragraph 25, that establishing the confidential nature of the information requires the party claiming the exemption to “provide actual direct evidence of the confidential nature of the remaining information which must disclose a reasonable explanation for exempting each record.

Evidence which is vague or speculative in nature cannot be relied upon to justify an exemption under subsection 20(1).” Justice Martineau further held at paragraph 32 that establishing a reasonable expectation of probable harm requires showing a

direct link between the disclosure and the alleged harm and “An applicant cannot demonstrate a reasonable expectation of probable harm simply by attesting in an affidavit that such a result will occur if the records arereleased.” Similarly in Canada Post Corp v Canada (Minister of Public Works and Government Services), 2004 FC 270, 247 FTR 110 [Canada Post], Justice Elizabeth Heneghan held at paragraphs 45 and 46:[45] Affidavit evidence that is vague or speculative is insufficient to establish the reasonable expectation of probable harm that is required pursuant to subsection 20(1)(c); see SNC-Lavalin, supra and CanadianBroadcasting Corporation, supra.[46] I acknowledge the affidavit evidence filed by the Applicant as part of the confidential Application Record contains many details concerning the alleged harm that could enure to the Applicant if the records weredisclosed.

However, the detail of an affidavit is not determinative of whether certain records meet the criteria for exemption pursuant to subsection 20(1)(c).[79] These evidentiary principles while expressed in the subsection 20(1) context apply to the

section 18 context.[80] On the issue of speculation, the Federal Court of Appeal in Attaran v Canada (Minister of Foreign Affairs), 2011 FCA 182 at paras 32-34, 337 DLR (4th) 552 [Attaran] explained the difference between aninference as a matter of logic and speculation in the context of determining the issue of whether the Head exercised his/her discretion:[32] Drawing an inference is a matter of logic. As stated by the Newfoundland Supreme Court (Court of Appeal) in Osmond v.

Newfoundland (Workers' Compensation Commission) (2001), 200 Nfld. & P.E.I.R. 203 atparagraph 134:[...] Drawing an inference amounts to a process of reasoning by which a factual conclusion is deduced as a logical consequence from other facts established by the evidence. Speculation on the other hand is merely a guessor conjecture; there is a gap in the reasoning process that is necessary, as a matter of logic, to get from one fact to the conclusion sought to be established. Speculation, unlike an inference, requires a leap of faith.[33] In Squires v.

Corner Brook Pulp and Paper Ltd. (1999), (NL SC), 175 Nfld. & P.E.I.R. 202 (C.A.) the same court reviewed early Supreme Court of Canada and House of Lords jurisprudencewhich discussed the distinction between inference and conjecture. Justice Cameron, writing for the Court, stated:[113] In Canadian Pacific Railway Company v. Murray, (SCC), [1932] S.C.R. 112 at pp. 115-117 the Court approved the following from Jones v. Great West Railway Co. (1930), 47 T.L.R. 39:The dividing line between conjecture and inference is often a very difficult one to draw.

A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, onthe other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogencyof a legal inference of causation may vary in degree between practical certainty and reasonable probability.[114] The House of Lords in Caswell v.

Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152 noted the difference between conjecture and the drawing of an inference in these terms at pp. 169-70.Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the otherfacts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability.

But if there are no positive proved facts from which theinference can be made, the method of inference fails and what is left is mere speculation or conjecture.[…][34] An inference cannot be drawn where the evidence is equivocal in the sense that it is equally consistent with other inferences or conclusions. (

a) Financial, Commercial, Scientific or Technical Information [81] In considering how the terms “financial, commercial, scientific or technical” are to be interpreted it is helpful to note that the same terminology is found at paragraph 20(1)(

b) of the ATIA in the context of thirdparty information.[82] In Merck, the Supreme Court of Canada took the opportunity at paragraphs 139 - 142 to summarize years of well-established statements from this Court’s jurisprudence relating to financial, commercial,scientific or technical information in the context of discussing paragraph 20(1)(b): [139] First, the terms "financial, commercial, scientific or technical" should be given their ordinary dictionary meanings. As MacKay J. in Air Atonabee stated, at p. 268:... dictionary meanings provide the best guide and that it is sufficient for purposes of subs. 20(1)(

b) that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms arecommonly understood.[140] Second, the case law also holds that in order to constitute financial, commercial, scientific or technical information, the information at issue need not have an inherent value, such as a client list might have, forexample.

The value of information ultimately "depends upon the use that may be made of it, and its market value will depend upon the market place, who may want it, and for what purposes, a value that may fluctuatewidely over time" (Air Atonabee, at p. 267).[141] Finally, I agree that administrative details such as page and volume numbering, dates and location of information within the records are not scientific, technical, financial or commercial information (AstraZeneca, atpara. 73).[142] In general, the same can be said about the formatting and structure of submissions such as the choice to use a graph or table to present information or the precise organization and ordering of sections of a documentthe general contents of which are the subject of publicly available guidelines as is the case here: see, e.g., Société Gamma, at pp. 63-64.

Of course, whether or not the exemption applies must be considered in light of thenature of the information and the evidence in the particular case.[83] In Merck, the Supreme Court of Canada definitively held at paragraphs 196 and 206 that a reasonable expectation of probable harm remains the test for determining whether documents are exempt underparagraphs 18(

b) and 20(1)(

b) and 20(1)(d):[196] It may be questioned what the word "probable" adds to the test. At first reading, the "reasonable expectation of probable harm" test is perhaps somewhat opaque because it compounds levels of uncertainty.Something that is "probable" is more likely than not to occur. A "reasonable expectation" is something that is at least foreseen and perhaps likely to occur, but not necessarily probable. When the two expressions are usedin combination -- "a reasonable expectation of probable harm" -- the resulting standard is perhaps not immediately apparent.

However, I conclude that this long-accepted formulation is intended to capture an importantpoint: while the third party need not show on a balance of probabilities that the harm will in fact come to pass if the records are disclosed, the third party must nonetheless do more than show that such harm is simplypossible.

Understood in that way, I see no reason to reformulate the way the test has been expressed.[…][206] To conclude, the accepted formulation of "reasonable expectation of probable harm" captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible orspeculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm. (2) 21(1)(b): Account of Consultations or Deliberations [84] The ATIA does not define the terms “account”, “consultations” or “deliberations.” In accordance with the Supreme Court of Canada’s determination in Merck, those terms should be given their ordinarydictionary meanings (Merck at para 139).[85] Although not a binding document, the Treasury Board Secretariat’s Access to Information Manual [Manual] contains a useful discussion of the meaning of the various terms under paragraph 21(1)(b), and bothof the parties relied on that document, albeit for different

interpretations of the application of paragraph 21(1)(b);11.18.4 Paragraph 21(1)(b) – Account of consultations or deliberationsThe exemption provided by paragraph 21(1)(

b) of the Access to Information Act relates to an account of consultations or deliberations involving officials or employees of government institutions, a minister of the Crownor the staff of a minister of the Crown.This provision has four key components: account, consultation, deliberation and identity of individuals involved.1. AccountBecause the term "account" is not defined in the Act, Parliament intended it to have an ordinary dictionary definition: a particular statement or narrative of an event or thing; a relation, report or description.Written exchanges of views qualify as an account.

Examples include exchanges of memoranda setting out the views of their authors; and a memorandum that has been returned to its author with the views of the recipienthandwritten on it.What about unsolicited views? An unsolicited memorandum to an official or a minister setting out the views of another official on a particular subject can also be considered an account of consultation.The purpose of paragraph 21(1)(

b) is to protect the views expressed during consultations or deliberations in order that these continue to be expressed frankly and candidly. Paragraph 21(1)(

b) does not apply to factualinformation or subject headings of records, unless the disclosure of the factual information or the heading would reveal the views expressed.The account must be either of a consultation or a deliberation. These terms are not defined in the Act and take their ordinary meaning as follows.2. ConsultationConsultation means:◦ the action of consulting or taking counsel together: deliberation, conference;◦ a conference in which the parties (for example, lawyers or medical practitioners) consult and deliberate.3.

DeliberationDeliberation means:◦ the action of deliberating (to deliberate: to weigh in mind; to consider carefully with a view to a decision; to think over); careful consideration with a view to a decision;

◦ the consideration and discussions of the reasons for and against a measure by a number of councillors. 4. Identity of individuals involved The final component of paragraph 21(1)(

b) concerns the identity of the individuals who must be involved in the consultations or deliberations if the exemption is to apply. It is sufficient that one of the following individuals be involved for paragraph 21(1) (

b) to apply: a. directors, officers or employees of a government institution; b. a minister; or c. the staff of a minister. On the basis of these

definitions, only that information describing the advice provided, the consultations undertaken, or the exchange of views leading to a particular decision would qualify as an account exemptible under paragraph 21(1)(b). [ 86 ] Justice Sharlow held in Telezone FC at paragraphs 45 to 47 that “The exceptions in paragraphs 21(1)(

a) and (

b) are aimed at preserving the integrity of the government decision making process. The underlying policy consideration is that too much public disclosure could inhibit open and frank communication between government advisers and decision makers.” Unlike the exemptions under sections 18 and 20, paragraph 21(1) (

b) does not require proof of harm. Instead the Court reviews “the disputed material in light of the evidence as to how and why it came into existence. Once that is understood, it should be possible to determine whether the exception claimed for each particular item should be upheld, based on the language of the exception read in its ordinary sense.” [ 87 ] In Canadian Council of Christian Charities Justice Evans explains at paragraphs 30 – 32, 36 and 39 the purpose of the subsection 21(1) exemption, specifically paragraphs 21(1)(

a) and 21(1)(b). Justice Evans addresses the nature of information captured under the exemption and emphasizes the necessity of accountability when considering the exemption: [30] Despite the importance of governmental openness as a safeguard against the abuse of power, and as a necessary condition for democratic accountability, it is equally clear that governments must be allowed a measure of confidentiality in the policy-making process.

To permit or to require the disclosure of advice given by officials, either to other officials or to ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies. [31] It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted.

Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely.

In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness. [32] On the other hand, of course, democratic principles require that the public, and this often means the representatives of sectional interests, are enabled to participate as widely as possible in influencing policy development.

Without a degree of openness on the part of government about its thinking on public policy issues, and without access to relevant information in the possession of government, the effectiveness of public participation will inevitably be curbed. […] [36] Since citizen participation is more likely to be effective if it comes early in the policy-making process, subsection 21(1) should not be given a broader

interpretation than its wording clearly requires. A central purpose of the Access to Information Act is, after all, to enhance the democratic foundations of government, and accountability. […] [39] It is difficult to avoid the conclusion that the combined effect of paragraphs 21(1) (

a) and (

b) is to exempt from disclosure under the Act a very wide range of documents generated in the internal policy processes of a government institution. Documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within these broad terms. However, most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (

a) or (

b) of subsection 21(1). [ 88 ] The jurisprudence also recognizes that “facts” , “advice” and “recommendations” are not airtight compartments, an issue addressed in Telezone FC and Telezone FCA . In Telezone FC , Justice Sharlow held at paragraphs 58 and 63: [58] It is not always possible to put "facts", "advice" and "recommendations" in airtight compartments. Many documents have more than one aspect.

For example, an official may advise the Minister that a particular criterion ought to be given a particular weighting for a certain policy reason, or recommend that an application with a certain characteristic ought to be awarded a specified number of points. A written record of such advice or recommendation is correctly described as "advice or recommendations" to the Minister even if it is also a record of the fact that the official considered a particular weighting or awarding of points. In such a case, the exception in paragraph 21(1) (

a) applies despite the factual aspect of the record. […] [63] This memorandum describes facts, in the sense that the writer is describing events that occurred. Those events, however, comprise the analysis that the writer and his colleagues and consultants undertook in reaching their conclusions. The entire memorandum is an account of deliberations by one or more government officials.

To the extent that it contains advice to the working group as to the merits of the financial aspects of the licence applications, it also falls into the category of advice or recommendations. [ 89 ] Similarly, in Telezone FCA Justice Evans states at paragraphs 55-57: [55] I accept that the benefit of paragraph 21(1)(

a) should be reserved for the opinion, policy or normative elements of advice, and should not be extended to the facts on which it is based. I also accept that, whenever reasonably practicable, the factual component of advice must be severed under

section 25 and disclosed, although, as the Judge observed at paragraph 58 of her reasons, advice and facts may be so intertwined as to preclude this. [56] However, it is in my view untenable to characterise as essentially factual the documents emanating from members of the working group that deal with the percentage weightings. The reason for the group's informing the selection panel, and ultimately the Minister, of the bases of their evaluations was to suggest to the Minister the appropriate rankings of the applications, and not just to give an account of how they had gone about their work.

The percentages represented the working group's view, approved by the Assistant Deputy Minister, of the relative importance of the various government objectives being pursued through the allocation of the licences. [57] In my opinion, the content of the documents is predominantly normative, rather than merely factual, and thus brings them within the rationales underlying paragraph 21(1) (

a) for exempting records from disclosure. This conclusion is not affected by the fact that the working group was implicitly, rather than expressly, advising the Minister of the relative importance that should be attached to the various evaluative factors in making the ultimate decision. B. Consideration of the Redactions [ 90 ] I will next examine the exemptions claimed by TPA in the Redacted Minutes. Both parties conducted a paragraph by paragraph analysis of the Redacted Minutes and often rely on the same case-law and authorities.

As the respondent has made the exemption claims, I summarize the respondent’s position first and then set out the applicant’s response in this part of the Reasons. [ 91 ] After providing an overview of the parties’ arguments on the applicability of the exemptions I undertake an analysis of the redactions grouped by topic or issue.

In considering the redactions, I set out: (1) those portions of the Redacted Minutes where TPA claimed an exemption; (2) the ATIA exemption being relied upon; (3) the parties’ submissions on the applicability or lack thereof of those exemptions; and (4) my analysis and determination as to the applicability of the claimed exemption. In setting out the text of the relevant extracts from the Minutes I often include some surrounding text for context. The text TPA redacted is reflected in bold font.

(1) Overview of the Respondent’s Position on the Applicability of the Exemptions [ 92 ] The respondent submits the discretionary exemption under paragraph 21(1) (

b) of the ATIA applies to the entirety of the Minutes because the latter is an account of deliberations that disclose the manner in which TPA conducts business. [ 93 ] The respondent argues in its Memorandum of Fact and Law that “The redacted portions of the Minutes contain a direct account of the deliberations undertaken by TPA’s Audit Committee on several critical issues, a number of which related directly to the decision to purchase a ferry” to service the TCCA.

Furthermore, the respondent argues these deliberations “are a normative rather than factual … because instead of simply outlining various facts for consideration, they are an account of a discussion of the most appropriate way for TPA to conduct its business on these issues.” [ 94 ] The respondent submits that the mere fact that the Minutes reflect a discussion of factual circumstances should not lead one to conclude that they are not a record of deliberations. Similarly the respondent submits that simply because the facts are public in another context does not mean the deliberation of those facts is public.

The respondent also argues that even the procedural matters within the Minutes fall within the exemption because they too are an account of deliberations. [ 95 ] In addition the respondent submits that paragraphs 18 (

a) and 18(

b) of the ATIA are applicable to aspects of the Redacted Minutes. The respondent argues those portions of the Minutes contain valuable information regarding TPA’s signing authority, capital expenditure strategy and procurement process, among other things.

The respondent submits that making this information public would disclose TPA’s proprietary practices giving its competitors such as Pearson International Airport, Buffalo International Airport and other neighbouring port and transportation authorities an unfair competitive advantage. [ 96 ] In making these submissions, the respondent often relies on the affidavit of Alan Paul, a Vice President and Chief Financial Officer of TPA. [ 97 ] The respondent originally relied upon paragraphs 20(1)(

b) and 20(1)(

d) to redact portions of the Minutes, but as noted above the respondent abandoned this position in its oral submissions. I have therefore not addressed subsection 20(1) in this analysis.

(2) Overview of Applicant’s Position on the Applicability of the Exemptions [ 98 ] In written argument the applicant submits that much of the information in the Minutes is factual, in the public domain or innocuous and thus not exempt. [ 99 ] The applicant submits the information the respondent refused to disclose is not commercial or financial information within the meaning of paragraph 18(a).

The applicant further argues the respondent failed to prove that the information, even if financial or commercial in nature has substantial value or is reasonably likely to have substantial value. [ 100 ] With respect to the respondent’s reliance on paragraph 18 (b), again the applicant submits there is no basis to conclude that any of the non-disclosed information will result in a risk of harm that is beyond merely possible or speculative, or that would prejudice TPA’s competitive position.

The applicant further submits disclosure of the Minutes prepared more than six years ago, will not impact contractual or other negotiations since

no such negotiations are ongoing for the purchase of a ferry. [ 101 ] In regard to paragraph 21(1) (

b) the applicant notes it did not investigate the paragraph 21(1) (

b) claim due to: (1) the respondent’s late identification of the exemption; (2) the absence of any representations from the respondent regarding the applicability of the exemption; (3) the absence of any explanation from the respondent for not raising the exemption earlier in the process; (4) the Requester’s right to timely access; and (5) the Commissioner’s obligation to the Requester to issue a subsection 37(2) report. However, the applicant argues that the paragraph 21(1)(

b) exemption is not applicable where the information in question is largely factual in nature, and that TPA had a duty pursuant to

section 25 of the ATIA to sever the factual component of the Minutes and disclose this information to the Requester. The applicant submits the redacted information is largely factual, innocuous and/or is in the public domain and therefore the respondent cannot rely on the paragraph 21(1)(

b) exemption. [ 102 ] In oral argument counsel for the applicant clarified that it was not the applicant’s position that paragraph 21(1) (

b) could not apply to any portion of the Redacted Minutes.

(3) Page 1 – Approval of Previous Minutes (

a) Text of the Minutes The Committee had before it, for review and approval, draft Minutes of November 21, 2008. The Committee Chair indicated he understood that Mr. Christopher Henley had changes to the draft Minutes that the Committee had not seen. Deferred. (

b) Exemption Claimed by the Respondent [ 103 ] Counsel for the respondent advised at the hearing that contrary to the position taken in written representations, the respondent is not relying on paragraphs 18 (

a) and 18 (

b) in support of this redaction. The respondent relies solely on paragraph 21(1) (

b) in support of this redaction. (

c) Respondent’s Submissions [ 104 ] The respondent submits the redacted sentence is a deliberation under paragraph 21(1)(

b) and that it demonstrates discord between the Committee members. The respondent further argues that those minutes of a previous Committee meeting are confidential since the Committee regularly discusses sensitive matters which could prejudice TPA’s competitive position or ability to negotiate. Disclosure of the delay in approving the minutes of a previous meeting might also lead to the perception that Committee business was not dealt with in a timely manner again to the prejudice of TPA’s competitive position. (

d) Applicant’s Submissions [ 105 ] The applicant submits information about an attendee of the Meeting proposing changes to the minutes of that meeting is innocuous information and not exempt. (

e) Analysis (i) Paragraph 21(1)(b) [ 106 ] The sole question in respect of this redaction is whether or not the fact that a member of the Committee proposed changes to the draft minutes of a previous meeting reflects a “consultation” or “deliberation” in this context. In my view it does not. [ 107 ] While minutes of a meeting of an executive committee will normally report “consultations” and “deliberations” such documents are not exempted in their totality simply on the basis that they would be expected to reflect deliberations and consultations ( Rubin at para 28 ).

The redaction TPA seeks to maintain does not identify a problem, purport to analyse or consider an issue, canvass solutions or contain a recommendation ( Council of Christian Charities at para 39 ). It is simply a factual statement to the effect that a member of the Committee is proposing changes to the draft minutes of a previous Committee meeting that other members have yet to review. This objective, factual statement does not reflect discord as the respondent submits, nor does it betray the content of consultations or deliberations that may have occurred previously or in the course of the Meeting. (

f) Conclusion [ 108 ] The paragraph 21(1)(

b) exemption is not applicable. TPA has not advanced a basis upon which non-disclosure of this sentence can be maintained.

(4) Page 2 – PILTS Discussion (

a) Text of the Minutes The Acting President & CEO reported that TPA was awaiting a decision on PILTS and that he had learned that the Dispute Advisory Panel had been reappointed, which meant the same people would be making a decision on what to do with the information that had been presented during the hearing. The Acting president and CEO advised that the Windsor Port Authority would be commencing a hearing on PILTS shortly. (

b) Exemptions Claimed by the Respondent [ 109 ] In written submissions, the respondent relied on paragraphs 18 (b), 20(1) (

b) and 20(1) (d), and 21(1) (

b) in redacting this portion of the Minutes. At the hearing, counsel for the respondent advised that TPA is no longer relying on paragraphs 20(1) (

b) or 20(1) (

d) as the Windsor Port Authority [WPA], a government institution, is not a third party for the purpose of subsection 20(1) . (

c) Respondent’s Submissions [ 110 ] The respondent submits this redacted sentence reflects deliberations on factual information and falls within the scope of the paragraph 21(1)(

b) exemption. The respondent also submits the information redacted is exempt under paragraph 18(

b) as it was provided to the Committee in preparation for litigation and in strict confidence. The respondent submits disclosure would interfere with WPA’s negotiations with the City of Windsor for future Payments in Lieu of Taxes [PILTS] amounts owed. It also reveals TPA’s strategy in relation to its own PILTS process with the City of Toronto. (

d) Applicant’s Submissions [ 111 ] Information that the WPA may have pursued a PILTS hearing seven years ago is not exempt, given that it is public knowledge that all Port Authorities make PILTS payments to their respective municipalities pursuant to the Payment In Lieu of Taxes Act , RSC 1985, c M-13 . (

e) Analysis (

i) Paragraph 18(b) [ 112 ] The sentence TPA declined to disclose is a factual statement; however, as noted in Telezone FC , at paragraph 58 , “It is not always possible to put ‘facts’, ‘advice’ and ‘recommendations’ in airtight compartments.” In this case the redacted factual information discloses TPA’s interest in the status of PILTS proceedings as they relate to other government business enterprises. [ 113 ] There is evidence contained in Mr. Paul’s affidavit to the effect that there is an ongoing PILTS dispute with the City of Toronto. However, the cross-examination of Mr.

Paul on his affidavit establishes that PILTS payments by TPA and WPA are matters of public record. The cross-examination also indicates the PILTS dispute with the City of Toronto has been to some extent resolved, although the evidence is not entirely clear on this point. [ 114 ] Based on the evidentiary record I am not persuaded that the reasonable expectation of probable harm standard has been met ( Merck at para 206 ).

There is simply insufficient evidence to allow me to conclude that disclosing that “the Windsor Port Authority would be commencing a hearing on PILTS shortly” could reasonably be expected to prejudice the competitive position of TPA. The redaction cannot be sustained on the basis of paragraph 18 (b). (ii) Paragraph 21(1)(b) [ 115 ] The information does, however, identify an issue or problem that is of direct relevance to the Committee’s role and function as it relates to taxing authorities ( Canadian Council of Christian Charities at para 39 ) and as such, I am satisfied that it reflects an

[…]