BURNBRAE FARMS LIMITED Applicant v. CANADIAN FOOD INSPECTION AGENCY, 2014 FC 957

Date: 20141008 Dockets: T-699-13 T-1053-13 Citation: 2014 FC 957 Ottawa, Ontario, October 8, 2014 PRESENT: The Honourable Madam Justice Strickland Docket: T-699-13 BETWEEN: BURNBRAE FARMS LIMITED Applicant and CANADIAN FOOD INSPECTION AGENCY Respondent Docket: T-1053-13 AND BETWEEN: BURNBRAE FARMS LIMITED Applicant and CANADIAN FOOD INSPECTION AGENCY Respondent ORDER AND REASONS [ 1 ] This is an application for judicial review, brought pursuant to s. 44 of the Access to Information Act , RSC 1985, c A-1 (Act), of two decisions of the Canadian Food Inspection Agency (CFIA) to disclose certain information.

The first decision is dated April 2, 2013 and is related to matter T-699-13. The second is dated May 27, 2013 and is related to matter T-1053-13. By Order of this Court dated July 9, 2013, the two applications were consolidated. Factual Background [ 2 ] The Applicant, Burnbrae Farms Limited, is the owner and operator of egg farms across Canada and sources eggs from farmers in several provinces. As a food processing company, it is subject to inspections by CFIA. [ 3 ] CFIA is established pursuant to the Canadian Food Inspection Agency Act , SC 1997, c 6, s 3.

As a part of its statutory obligations, CFIA is required to carry out regulatory inspections pursuant to

Part IV, Inspection and Certification, of the Egg Regulations , CRC, c 284 ( Egg Regulations) pursuant to the Canada Agricultural Products Act , RSC 1985, c 20 (4th Supp). The latter is described as

an act to regulate the marketing of agricultural products in import, export and interprovincial trade and to provide for national standards and grades of agricultural products, for their inspection and grading, for the registration of establishments and for standards governing establishments. [ 4 ] CFIA is a government institution as set out in

Schedule 1 and s. 3 , of the Act . T-1053-13 [ 5 ] CFIA received an access to information request seeking: […] the 2009-10 inspection (or audit) reports for the egg-grading and egg-processing operations of: Burnbrae Farms Mississauga, Division of Burnbrae Farms Limited […] [ 6 ] By letter of March 9, 2011 (mistakenly dated March 9, 2010), referred to therein as the notice, CFIA informed the Applicant that it had received the above request for information. It also advised the Applicant that although it had reason to believe that the records sought might contain certain information described in and potentially exempted from disclosure by s. 20(1)(b), (c), and/or (

d) of the Act , it did not have sufficient information in its files to substantiate this; that CFIA was required by the Act to make a decision whether or not to disclose the records, or parts thereof, 30 days after the notice; and, that the Applicant had 20 days from the mailing date of the notice to make written representations to CFIA as to why the records should not be disclosed.

The letter attached copies of ss. 19, 20, 27 and 28 of the Act and the records at issue. [ 7 ] Counsel for the Applicant responded by letter dated March 28, 2011 objecting to the release and making submissions as to why the records and information should not be disclosed and were exempt from disclosure under s. 20(1) (

b) of the Act . [ 8 ] On April 12, 2011, CFIA sent a letter to the Applicant advising that its representations had been reviewed and that CFIA

considered them sufficient to partially withhold the requested information on the basis of s. 19 and s. 20(1) (

b) of the Act . However, the documents could not be withheld in their entirety as they were CFIA records. Copies of the redacted records that CFIA intended to disclose were enclosed.

The letter also stated that the Applicant was entitled under s. 44 of the Act to apply to this Court for a review of CFIA’s decision within 20 days of the mailing date of that notice. [ 9 ] The Applicant did not apply for judicial review within 20 days and the redacted records, in the form provided in CFIA’s April 12, 2011 letter, were released to the requestor. [ 10 ] On August 17, 2011 the requestor made a complaint to the Information Commissioner of Canada (IC). In that regard, the IC sent a Notice of Intention to Investigate and

Summary of Complaint to CFIA on August 19, 2011, advising that the IC had received a complaint alleging that CFIA had improperly applied the exemptions, so as to unjustifiably deny access to the records, or portions thereof, requested under the Act . [ 11 ] By letter of June 8, 2012, CFIA informed the Applicant that the complaint had been made and that after further review of the records and the IC’s recommendations, it believed more information should be released. As such, it was consulting the Applicant to seek its representations.

CFIA enclosed a copy of the records that it intended to disclose to the requestor. It again stated that although it had reason to believe that the records sought might contain certain information described in s. 20(1)(b), (c), and/or (d), it did not have sufficient information in its files to substantiate this. CFIA advised that it was required to make a disclosure decision within 30 days of the notice and that the Applicant had 20 days from the mailing date of the notice to make written representations as to why the records should not be disclosed.

It again attached copies of ss. 19 , 20 , 27 and 28 of the Act as well as copies of the records at issue. [ 12 ] In response, by letter of July 10, 2012, the Applicant stated that it had previously made written representations, that its position was unchanged and reiterated the content of its March 28, 2011 letter. [ 13 ] On May 27, 2013, CFIA wrote to the Applicant advising that it had reassessed the Applicant’s representations and, further to the IC’s recommendations, it no longer considered the reasons provided by the Applicant to be sufficient to withhold all the requested information on the basis of s. 20(1) (

b) of the Act . Therefore, CFIA intended to now disclose the information to the requestor. It attached the subject records, noting that the darkened portions would be redacted prior to disclosure. It further advised that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of the notice, to this Court for judicial review of its decision. [ 14 ] On June 13, 2013 the Applicant issued a Notice of Application seeking judicial review of CFIA’s May 27, 2013 decision.

T-699-13 [ 15 ] CFIA received an access to information request seeking: […] copies of the results of CFIA random sampling and checking of eggs to determine the accuracy of grading at facilities owned by L.H. Gray and Sons Ltd. and/or GrayRidge Farms Ltd. in the province of Ontario, and of Burnbrae Farms Ltd., also in the province of Ontario, for the fourth quarters (October, November and December) of 2009, 2010 and 2011. [ 16 ] By letter of March 28, 2012, referred to therein as the notice, CFIA informed the Applicant that it had received the above request for information.

Further, that although it had reason to believe that the records sought might contain certain information described in and potentially exempted from disclosure by s. 20(1)(b), (c), and/or (d), it did not have sufficient information in its files to substantiate this. It advised that CFIA was required by the Act to make a decision whether or not to disclose the records, or parts thereof, 30 days after the notice, and that the Applicant had 20 days from the mailing date of the notice to make written representations as to why the records should not be disclosed.

The letter attached copies of ss. 19, 20, 27 and 28 of the Act and the records at issue and noted that the darkened information in those records might be protected pursuant to s. 19(1) of the Act as CFIA believed it to be personal information. [ 17 ] Counsel for the Applicant responded by letter dated April 10, 2012 objecting to the release and making submissions as to why the records and information should not be disclosed and were exempt from disclosure under s. 20(1) (

b) of the Act . [ 18 ] On April 27, 2012, CFIA sent a letter to the Applicant advising that its representations had been reviewed and that CFIA did not consider them sufficient to withhold the requested information on the basis of s. 20(1) (

b) of the Act . A copy of the records that CFIA intended to disclose were enclosed, CFIA noted that some of the information had been exempted under s. 19(1) and s. 20(1)(

b) and (c). The letter also stated that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of that letter/notice, to this Court for judicial review of its decision. [ 19 ] The Applicant did not apply for judicial review within 20 days and the redacted records, in the form provided in CFIA’s April 27, 2012 letter, were released to the requestor. [ 20 ] On July 3, 2012 the requestor made a complaint to the IC. In that regard, the IC sent a Notice of Intention to Investigate and

Summary of Complaint, dated July 6, 2012, to CFIA. This advised that the IC had received a complaint alleging that CFIA had improperly applied exemptions, so as to unjustifiably deny access to records, or portions thereof, requested under the Act . [ 21 ] By letter of April 2, 2013, CFIA informed the Applicant that the complaint had been made, it had re-assessed the Applicant’s representations and, further to the IC’s recommendations, it no longer considered the reasons the Applicant had provided to be sufficient to withhold the requested information on the basis of s. 20(1) (

b) or (

c) of the Act . Therefore, CFIA intended to now disclose the information to the requestor. It attached the subject records and noted that, pursuant to s. 19 of the Act, the darkened portions would be redacted prior to disclosure to the requestor. Further, that the Applicant was entitled under s. 44 of the Act to apply, within 20 days of the mailing date of the letter/notice, to this Court for judicial review of its decision.

[22] On April 22, 2013 the Applicant issued a Notice of Application seeking judicial review of CFIA’s April 2, 2013 decision. [23] On July 9, 2013 a Confidentiality Order was granted in accordance with Rules 151 and 152 of the Federal Courts Rules,SOR/98-106 (Rules) and s. 47(1) of the Act. The Records [24] The information at issue in these two matters is contained in one of four types of reports:

i) Shell Egg Product Inspection Reports; ii) Egg Station Inspection/Rating Reports; iii) Pre-grade/Canada Nest Run Product Inspection Reports; and iv) Notices of Detention and Notices of Release from Detention. [25] Shell Egg Product Inspection Reports are CFIA forms. They identify the name and address of the station, the inspection date,and other such information.

In tabular form they set out columns headed as: Lot Description; Start Inspection Level; Units in Lot;Sample Size; Acceptance/Rejection Numbers; Undergrades (separated into Cracks and Undergrades Other than Cracks); Accept/RejectUnit; Leakers; Rejects; Accept/Reject Lot; and, End Inspection Level. They are completed by the inspector and signed by both theinspector and on behalf of the operator (these reports are also entitled Shell Egg Product Inspection Report Origin and Shell EggInspection Report.

Another type of form in this category is the Inspection Report of Shell Eggs / Processed Egg which is of a differentformat than that described above). [26] Egg Station Inspection/Rating Reports are also CFIA forms. They too identify the name and address of the station, theinspection date and other such information. The form is divided into two main parts: Sanitation Rating and Plant Rating. The partentitled Sanitation Rating is broken down into four subsections.

For the first two subsections – Egg Handling and Other Areas – themaximum potential points for each of sanitation and operation in each listed area (e.g. grading room, conveyor, etc.) are assigned. Theserange from 5 to 20 points, depending on the area. The inspector fills in the number of points actually awarded, the points lost by beingbelow the potential maximum, and any remarks. The next subsection – Temperature and Relative Humidity – sets out permissibletemperature ranges for ungraded and graded coolers and relative humidity ranges.

The inspector fills in which categories the coolers fellunder, any points lost, and can record the actual temperatures and relative humidity under the remarks section. The final subsection –Washwater – is concerned with the condition of washwater and is similarly completed. The inspector ticks either excellent, good, fair,serious or critical in terms of sanitation for that day’s inspection and assigns a letter for the Product Inspection Level.

The second majorpart of the form – Plant Rating – includes boxes for demerits on previous inspections, the current inspection, total demerits, a plantrating, as well as additional comments. The form is signed by the inspector and on behalf of the operator. [27] Pre-grade/Canada Nest Run Product Inspection Reports are also CFIA forms. They identify the name and address of theinspection station, the inspection date, and other such information. They include sections entitled Lot Description; Units in Lot; SampleSize; and Number of Eggs Examined. In tabular form they subdivide into Pregrade and Canada Nest Run.

Under Pregrade, there arecolumns for the number of eggs, percentage, and permissible Pregrade Standard for each of: cracked shells; inferior shells; dirty shells(three categories); air cell; stain; leakers; and leakers and rejects, to be filled in by the inspector, as well as boxes for a total and anaverage. Similar information can be entered in the Canada Nest Run section. Haugh Units and Egg Weight can also be recorded. In theResults sections, either Lot Accepted or Lot Rejected is ticked off by the inspector. There is also a remarks section.

The form is signedby the inspector and on behalf of the operator. [28] Notices of Detention and Notices of Release from Detention are again CFIA forms. The Notice of Detention is issued to anentity to be named in the form along with the quantity, date and place of seizure, and detention tag number. The reason for seizure anddetention, being the contravention of the identified

section of the applicable act and regulation, and the action to be taken is entered bythe inspector. The Notice of Release from Detention is to be completed by the inspector and refers to the detention tag number, date ofseizure, description and quantity of the product detained, and reason for release from detention. Legislative Background [29] The most relevant provisions of the Act are found in the

Schedule to this decision. [30] The Act attempts to balance the right of public access to government records recognized in s. 2(1) with the protection of thirdparty interests in s. 20(1). This was described by the Supreme Court in Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3[Merck Frosst]: [21] The purpose of the Act is to provide a right of access to information in records under the control of a government institution.

TheAct has three guiding principles: first, that government information should be available to the public; second, that necessary exceptions tothe right of access should be limited and specific; and third, that decisions on the disclosure of government information should bereviewed independently of government (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, butnot on this point) underlined that the overarching purpose of the Act is to facilitate democracy 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 politiciansand officials may be held meaningfully to account to the public. This purpose was reiterated by the Court very recently, in the context ofOntario’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 and democratic society”. Thus, access to information legislation is intended tofacilitate one of the foundations of our society, democracy. The legislation must be given a broad and purposive

interpretation, and dueaccount must be taken of s. 4(1), that the Act is to apply notwithstanding the provision of any other Act of Parliament: Canada PostCorp. v. Canada (Minister of Public Works), (FCA), [1995] 2 F.C. 110, at p. 128; Canada (Privacy Commissioner) v.Canada (Labour Relations Board), (FC), [1996] 3 F.C. 609, at para. 49, aff’d (2000), (FCA), 25Admin.

L.R. (3d) 305 (F.C.A.). [23] Nonetheless, when the information at stake is third party, confidential commercial and related information, the important goal ofbroad disclosure must be balanced with the legitimate private interests of third parties and the public interest in promoting innovation anddevelopment. The Act strikes this balance between the demands of openness and commercial confidentiality in two main ways. First, itaffords substantive protection of the information by specifying that certain categories of third party information are exempt fromdisclosure. Second, it provides procedural protection.

The third party whose information is being sought has the opportunity, beforedisclosure, to persuade the institution that exemptions to disclosure apply and to seek judicial review of the institution’s decision torelease information which the third party thinks falls within the protected sphere. […] It is within this context that this application for judicial review must be undertaken. Issues [31] I agree with the Applicant that the issues on this application for judicial review are as follows: 1. What is the proper standard of review to be applied to decisions of CFIA?2.

Did CFIA correctly apply the s. 20(1) exemptions to the records at issue?3. Was the Applicant afforded procedural fairness in CFIA’s decision-making process? ISSUE 1: What is the proper standard of review to be applied todecisions of CFIA? Parties’ Submissions [32] The parties agree that the standard of review for decisions of CFIA challenged pursuant to s. 44(1) of the Act is correctness(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 50, 62 [Dunsmuir]; Merck Frosst, above, at para 53; Les Viandesdu Breton Inc v Canada (Canadian Food Inspection Agency), 2006 FC 335 at para 30 [Les Viandes]).

Analysis [33] Where previous jurisprudence has satisfactorily determined the appropriate standard of review applicable to a particular issue,that standard may be adopted by a subsequent reviewing court (Dunsmuir, above, at paras 57, 62). [34] The Supreme Court of Canada in Merck Frosst stated that “[u]nder s. 51 of the Act the judge on review is to determinewhether “the head of a government institution is required to refuse to disclose a record” and, if so, the judge must order the head not todisclose it.” Therefore, it followed that when a third party makes a request pursuant to s. 44 of the Act for a review by this Court of adecision by a head of a government institution to disclose all or part of a record, the Court is to determine whether the institutional headhas correctly applied the exemptions to the records in issue: “[T]he role of the judge on review in these types of cases is to determinewhether the exemptions have been applied correctly to the contested records.” This review has sometimes been referred to as a de novoassessment of whether the record is exempt from disclosure (Merck Frosst, above, at para 53). [35] Accordingly, the standard of review in this matter is correctness.

ISSUE 2: Did CFIA correctly apply the section 20(1) exemptionsto the records at issue? Section 20(1)(

a) Exemption Applicant’s Submissions [36] The Applicant submits that the information contained in the Egg Station Inspection/Rating Reports satisfies the class test fortrade secrets under s. 20(1)(

a) of the Act (AstraZeneca Canada Inc v Health Canada, 2005 FC 189 (affirmed by FCA 2006 FCA 241) atpara 41 [AstraZeneca]). [37] In support of its application in matter T-699-13 the Applicant filed an affidavit of Joseph Edward (Ted) Hudson, VicePresident of Retail Sales and Industry Relations for Burnbrae Farms Limited, dated June 20, 2013 (Hudson Affidavit #1). In support ofmatter T-1053-13 the Applicant filed an affidavit of Mr. Hudson dated July 29, 2013 (Hudson Affidavit #2). [38] With respect to the Egg Station Inspection/Rating Reports, Hudson Affidavit #2 deposes that these documents are confidential

inspector worksheets and include information that the Applicant provided to CFIA detailing water levels, temperatures, and pH levels during the pre-wash, wash and rinse cycles as well as air temperature and humidity levels in various areas of the Applicant’s production facilities. This is technical-scientific information related to the Applicant’s operations and facilities practices. [ 39 ] Based on the Hudson affidavits, the Applicant submits that this information meets the criteria for s. 20(1)(

a) as:

i) The information relates to the Applicant’s own unique facilities management and sanitation methods which is never disclosed to any third party or to the public; ii) Egg producers and graders in Canada all employ their own methods for sanitation and facilities management. The Applicant diligently protects this information from being disclosed by any employees with access to it by way of its Employment Agreements and Offer Letters. These put employees on notice that it is a condition of their employment to maintain the confidentiality of information.

Confidential information includes information relating to the Applicant’s business operations, methods, practices, specifications and other technical and business information; iii) The information relates to the unique way in which the Applicant sanitizes its eggs and the techniques it has developed to accomplish this. It also relates to how it manages and controls its facilities. The methods used have been extremely successful and are part of the reason why the Applicant is an industry leader.

The information could easily be applied by a competitor; and iv) The Applicant has developed these methods through years of experience in the industry and accordingly has a clear legal interest in them that is worthy of protection. [ 40 ] The Applicant submits that the disputed information concerns methodology and is similar to the information considered by this Court in PricewaterhouseCoopers, LLP v Canada (Minister of Canadian Heritage) , 2001 FCT 1040 at paras 14-17 [ PricewaterhouseCoopers ].

Respondent’s Submissions [ 41 ] The Respondent submits that the information contained in the Egg Station Inspection/Rating Reports is not a trade secret, but represents publicly-available regulatory requirements. The Egg Regulations set out standardized regulatory requirements for water temperature, pH levels, air temperature and humidity. The information in the Egg Station Inspection/Rating Reports establishes whether the Applicant has met these regulatory requirements.

The fact that the Applicant, for example, maintains an air temperature at a level lower that 10°C, in accordance with the requirements applicable to all operators, is not something of a technical nature which is guarded closely and is of such peculiar value to the owner that harm is presumed by its disclosure. Further, the information represents readings taken by a CFIA inspector at a particular point in time. The documents do not particularize the Applicant’s facilities’ management and sanitation methods, and documents that do set out such information have been redacted where appropriate, pursuant to s. 20(1) (

b) of the Act . [ 42 ] The term ‘trade secret’ must be given a reasonably narrow

interpretation so as not to overlap with other categories of exempted information. It must be something, probably of a technical nature, that is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to the owner is presumed by its mere disclosure ( Société Gamma Inc v Canada (1994), 79 FTR 42 at para 7 (TD) [ Société Gamma ] ). [ 43 ] The fact that the Applicant, like other operators subject to the Egg Regulations , follows the established regulatory requirements cannot be found to rise to the definition of trade secret. Analysis [ 44 ] Section 20(1) (

a) of the Act provides an exemption from disclosure under the Act for trade secrets: 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; […] 20.

(1) Le responsable d’une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant :

a) des secrets industriels de tiers; […] [ 45 ] The trade secret exemption is class based. Once information in the record corresponds to the statutory provision, that information is exempted and the head must refuse to disclose it ( Merck Frosst , above, at para 99 ; AstraZeneca , above, at para 41). [ 46 ] A trade secret “must be something, probably of a technical nature, which is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed from its mere disclosure” ( Société Gamma , above, at para 7; AstraZeneca , above, at para 62).

The point is not whether the term is to receive a broad or a narrow definition, but rather that the term should be given its traditional legal meaning ( AstraZeneca , above, at para 63, aff’d in Merck Frosst , above, at para 111 ).

Parliament intended to protect genuine trade secrets ( AstraZeneca , above, at para 63). [ 47 ] In Merck Frosst , above, the Supreme Court of Canada conducted an analysis of what comprises a trade secret in the context of s. 20(1) of the Act and concluded: [112] Phelan J.’s reasons, along with the portion of the Guidelines which he adopts, appropriately capture that traditional legal meaning. A “trade secret” for the purposes of s. 20(1) of the Act should be understood as being a plan or process, tool, mechanism or

compound which possesses each of the four characteristics set out in the Guidelines which I have quoted above. This approach is consistent with the common law definition of “trade secrets” and takes account of the clear legislative intent that a trade secret is something different from the broader category of confidential commercial information which is separately and specifically protected under the Act.

This approach is also consistent with the use of “ secrets industriels ” in the French version of the Act, as discussed above. [ 48 ] Thus, the Supreme Court confirmed in Merck Frosst , above, at para 109 that in order to qualify as a trade secret, the information must consist of a “plan or process, tool, mechanism or compound” that possesses each of the following characteristics:

i) The information must be secret in the absolute or relative sense (known only to a relatively small number of persons); ii) The third party must demonstrate that it has acted with the intention to treat the information as secret; iii) The information must be capable of industrial or commercial application; and iv) The third party must have an interest (e.g. economic) worthy of legal protection. [ 49 ] In my view, the water levels, temperatures and pH levels during the pre-wash, wash and rinse cycles in the sanitation of production, as well as the air temperature and humidity levels contained in the Egg Station Inspection/Rating Reports, is not information that constitutes a trade secret within the meaning of s. 20(1)(a). [ 50 ] The Egg Station Inspection/Rating Reports are a template form generated by CFIA.

The form is used by an inspector to record his or her observations made during an inspection and/or information provided by the producer in response to the inspection.

Section 9 of the Egg Regulations concerns the operation and maintenance of registered egg stations. Every operator is required to operate and maintain the registered egg station in accordance with that

section which includes provisions pertaining to temperature and humidity. Section 9(16) states that the relative humidity in any room where eggs are held in a registered egg station shall be maintained at not more than 85%. Section 9(18) states that the temperature of any room where eggs are held in a registered egg station shall be maintained at not more than (a) 10°C in the case of a room holding eggs graded Canada A, Canada B or Canada C; and (b) 13°C in the case of a room holding eggs graded Canada Nest Run, ungraded eggs or eggs bearing a dye-mark.

Section 9(31) states that the water that is used to wash eggs shall be at least 11°C warmer than the eggs and, in the case of a system that uses recirculated water, the water shall be maintained (

a) at a temperature that is not less than 40°C; and (

b) at a pH level that is not less than 10. These standards are all reflected in the form that comprises the Egg Station Inspection/Rating Reports as comparators to be met by the egg station under inspection. [ 51 ] Thus, the information that was entered in each Egg Station Inspection/Rating Report by an inspector is intended to and establishes whether or not the Applicant is in compliance with those regulatory requirements. As noted above, the form sets points for each item and the inspector records any points lost for non-compliance.

It also allows for additional remarks by the inspector concerning sanitation and operations. [ 52 ] In my view, this information as recorded by inspectors in the Egg Station Inspection/Rating Reports at the point in time of the subject inspections does not comprise a “plan or process, tool, mechanism or compound.” It is simply data points recorded at a given time.

I agree with the Respondent that these records do not particularize the Applicant’s facilities management and sanitation methodologies and, while these readings may be related to the Applicant’s operations and facilities practices, I am not persuaded that they disclose those operations and practices.

In this regard, it is relevant that other documentation such as the Applicant’s standard operation procedures and hazard analysis and control points plan, which in fact do describe processes, procedures and operations developed by and specific to the Applicant, have been withheld from disclosure pursuant to the s. 20(1)(

b) exemption as proprietary information. [ 53 ] The Applicant also submits that this information is similar to the information considered in PricewaterhouseCoopers , above. There, the Department of Canadian Heritage contracted the applicant's services for the purpose of reviewing, analyzing, and recommending changes to its documents being used to contract-out or “outsource” elements of its work. Justice Campbell found that the assignment was conducted within a relationship that had as a fundamental feature a concern for the confidentiality of the two reports produced constituting the results of the assignment.

The applicant had applied its own proprietary methodologies and information in order to review, analyze, and make recommendations to the Department. Justice Campbell concluded that the work product, being the reports, was capable of proving the methodology used to produce it and, therefore, that the reports contained trade secrets. [ 54 ] In my view, PricewaterhouseCoopers can be distinguished on its facts. At issue in that case was release of two complete reports that were generated using a confidential methodology.

The Egg Station Inspection/Rating Reports are one page documents generated by CFIA for regulatory compliance purposes. Further, the data recorded in the reports is limited and specific and, as noted above, does not amount to a plan, process, tool, mechanism or compound.

Nor does it disclose a methodology or permit disclosure of such methodology by way of reverse engineering. [ 55 ] I would also note that in PricewaterhouseCoopers , above, the reports themselves contained confidentiality clauses which stated that the information they contained was of a confidential technical nature and was being supplied on that basis. Further, one of the reports stated on its face that the non-confidential disclosure of the information could potentially harm Coopers & Lybrand's competitive position and/or materially interfere with ongoing or future contract/tender negotiations.

Finally, each page of each of the reports was marked “STRICTLY PRIVATE & CONFIDENTIAL -- NOT FOR DISCLOSURE OUTSIDE PCH [Canadian Heritage].” Conversely, the Egg Station Inspection/Rating Reports state: “Information may be accessible or protected as required under the provisions of the Access to Information Act .” [ 56 ] In considering the scheme of the Act , the Supreme Court in Merck Frosst , above, (at para 106 ) addressed the distinction between trade secrets and confidential information as expressed in s. 20(1)(

a) and (

b) and found that this suggested that trade secrets in s. 20(1)(

a) was intended to be a narrower concept than the more general class of confidential, financial, commercial, scientific or technical information set out in s. 20(1)(b). In my view, the subject information contained within the Egg Station Inspection/Rating Reports does not fall within that narrower concept and, therefore, those reports are not exempt from disclosure as a trade secret pursuant to s. 20(1)(a).

Section 20(1)(

b) Exemption Applicant’s Position [57] The Applicant submits that the Shell Egg Product Inspection Reports, Notices of Detention and Notices of Release fromDetention contain commercial information that satisfies the class test for s. 20(1)(b) (Merck Frosst, above, at paras 139-140, 146, 157-158; HJ Heinz Co of Canada Ltd v Canada (Attorney General), 2003 FCT 250 at para 36; Fédération des producteurs acéricoles duQuébec v Canada (Canadian Food Inspection Agency), 2007 FC 704 at para 36 [Fédération des producteurs acéricoles du Québec]). [58] The information contained under the headings “Lot Descriptions” and “Units in Lot” in the Shell Egg Product InspectionReports identify the Applicant’s customers by name or brand as well as the type and volume of product the Applicant ships to them.

This customer information is also provided in the Notices of Detention and Notices of Release from Detention. The information isconfidential and is not publicly available. While it is possible to determine who the Applicant’s customers are by viewing its products instores, it would not be practical to obtain information in this manner concerning the volumes that they purchase.

The information wassupplied to CFIA by the Applicant and it has consistently been treated as confidential by the Applicant. [59] Customer lists are valuable commercial information and such information is known only by persons within the Applicant’soperations on a need to know basis such as those in the marketing, shipping, and sales departments. Employees are also subject toconfidentiality and non-disclosure conditions in their contracts of employment.

Further, the Applicant has for many years resistedattempts by the Egg Farmers of Canada to require egg graders to provide sales information regarding their customers and the volume andsizes of their orders. The Applicant only provides such information with the express condition that its sales data is amalgamated withthat of other graders and, even then, the data is provided by size and not by brand. Respondent’s Position [60] The Respondent submits that the Applicant has not met the four part Air Atonabee test (Air Atonabee Ltd v Canada (Ministerof Transport), [1989] FCJ No 453 [Air Atonabee] for the s. 20(1)(

b) exemption as set out in Canada Post Corp v National CapitalCommission, 2002 FCT 700 at para 10 [Canada Post 2002]. [61] The disputed information is publicly available. It is possible for a competitor to determine who the Applicant’s customers arefrom a plain view of the product offerings found in a store. Further, the CFIA inspectors’ reports are a random sample inspection ofsome of the Applicant’s products. They are not complete customer lists nor do they detail the entire type and volume of customerpurchases.

There is also no reasonable expectation of confidence and no public interest in maintaining confidentiality of the CFIAinspection reports and notices in this case as per the second criteria of the Air Atonabee test (StenoTran Services v Canada (Minister ofPublic Works and Government Services) (2000), (FC), 186 FTR 134 at para 9; Canadian Tobacco Manufacturers’Council v Canada (Minister of National Revenue), 2003 FC 1037 at para 114 [Canadian Tobacco Manufacturers]; Brookfield LePageJohnson Controls Facility Management Services v Canada (Minister of Public Works and Government Services), 2003 FCT 254 at para16 (TD); Société Gamma, above; Ottawa Football Club v Canada (Minister of Fitness and Amateur Sports), (FC),[1989] 2 FC 480, 24 FTR 62 at para 12; Maislin Industries Ltd v Minister for Industry, Trade and Commerce, (FC),[1984] 1 FC 939 at 947). [62] While the Applicant’s standard operation procedures manual and other documents collected by CFIA may have beensubmitted with the expectation of confidentiality, there was no such expectation with regard to CFIA’s assessment and conclusions.

Further, the fact that the information was treated confidentially within the Applicant’s business does not alter how it is treated by CFIAor the principles set out in the Act (Les Viandes, above, at para 52).

Where the records are from department sources, the general purposeof the Act, which identifies the provision of access to government controlled records as a public interest given priority by Parliament,should be given effect (Air Atonabee, above, at para 49). [63] The records at issue were also not supplied to a government institution by a third party as the information is CFIA’s opinion,comments and recommendations arrived at in the course of its regulatory mandate.

This proposed disclosure reflects the approach inCanada Packers Inc v Canada (Minister of Agriculture), (FCA), [1989] 1 FC 47 (CA) at para 12 [Canada Packers](see also Merck Frosst, above; Air Atonabee, above, at para 51; Les Viandes, above).

Analysis [64] Pursuant to s. 20(1)(b), the head of a government institution shall refuse to disclose any record requested under the Act thatcontains “financial, commercial, scientific or technical information that is confidential information supplied to a government institutionby a third party and is treated consistently in a confidential manner by the third party.” [65] Like s. 20(1)(a), s. 20(1)(

b) creates a class test (AstraZeneca, above, at para 41) where the nature or characteristics andtreatment of the information is determinative. [66] To meet the s. 20(1)(

b) exemption, the Applicant must satisfy the four part test from Air Atonabee as restated in Canada Post2002 at para 10, both above (see also Merck Frosst, above, at paras 94-95, 139-140, 146, 157-158) that, on a balance of probabilities, theinformation is: 1. financial, commercial, scientific, or technical information as those terms are commonly understood;2. confidential in its nature, according to an objective standard which takes into account the content of the information, its purposesand the conditions under which it was prepared and communicated;3. supplied to a government institution by a third party; and4. treated consistently in a confidential manner by the third party.

[ 67 ] As to the first criteria, it is sufficient that the information relate or pertain to matters of finance, commerce, science or technical matters as those terms are commonly understood. Whether the information has a market value or its disclosure might cause loss to a third party is not relevant to s. 20(1)(

b) and is addressed by s. 20(1)(a), (

c) and (d) ( Air Atonabee , above, at para 36; Merck Frosst , above, at paras 139-140 ). [ 68 ] It is correct that the Shell Egg Product Inspection Reports, under the heading “Lot Description,” lists descriptions of the customer and the brand name on the subject egg cartons or describes them as loose pack. Under “Units in Lot” a figure is listed which, in the reports in dispute, covers a broad range from 24 to 240 units. The Egg Regulations define a lot as a quantity of eggs that for any reason is considered separately from any other quantity of eggs for the purpose of an inspection (s. 2). [ 69 ] Mr.

Denis Chatelain, ATIP Team Leader with CFIA, provided an affidavit dated September 11, 2013 in support of the Respondent’s response to the applications. When cross examined on his affidavit he acknowledged that the entries under “Lot Description” contained information pertaining to the Applicant’s clients and included the number of units in each lot that was to be shipped to the customer.

He further acknowledged that in the course of the inspections conducted by CFIA, the Applicant provided access to the lots and customer names, and confirmed that the inspectors obtained that information from the Applicant. [ 70 ] Mr. Hudson deposed that the Applicant does not release information regarding its customers, suppliers or the volumes it sells to each of its customers that the volume of product sold and customer lists are valuable information known internally only on a “need to know” basis (Hudson Affidavit #1 at para 13).

The Applicant protects this information by way of its terms and conditions of employment including the following: All records, materials and information obtained by you in the course of employment concerning the business or affairs of Burnbrae Farms and its companies, including but not limited to financial information, business plans and strategies, and personal or financial information about employees, customer lists and information, marketing plans and strategies , all records, files, memoranda, reports, price lists, drawings, plans, sketches, documents, equipment, and the like, shall remain confidential.

During your employment or at any time thereafter, you will not disclose such Confidential Information to any person without the consent of Burnbrae except as required by law, unless such information is in the public domain. All books, records, documents and information, in any form, containing Confidential Information, whether prepared by you or otherwise coming into you possession, shall remain the exclusive property of Burnbrae Farms.

You shall immediately return all such books, records, files and documents in whatever form or medium to Burnbrae Farms upon termination of your employment, without retaining copies. A condition of your present and/or ongoing employment is your agreement to observe this confidentiality policy. [Emphasis added] [ 71 ] Attached as an exhibit to Hudson Affidavit #1 is a “template” non-disclosure agreement letter to employees that is deposed to have been in use since 2009.

The letter defines “confidential information” as follows: “Confidential Information” is deemed to include information relating to the Employer’s business operations, methods and practices including marketing strategies, financial and business plans and ideas, financial statements and other financial information, produce pricing, produce formulae , the names and other contact information of or relating to the Employer’s customers, producers and suppliers, specifications and other technical and business information of or regarding the customers of the Employer, any other trade secret or confidential or proprietary information in the possession or control of the Employer, whether in written, oral or electronic form and including without limitation all databases of information and, in all cases, whether developed by the Employee for the Employer or provided to the Employee otherwise, it being understood that any Confidential Information developed by you by virtue of your employment with the Employer is and remains the property of the Employer. [Emphasis Added] [ 72 ] Mr.

Hudson deposes that the information contained in the subject records, if disclosed, would allow a competitor to gain valuable insight into the Applicant’s sales strategies and their results as well as the names of certain customers and their volume purchasing preferences and practices (Hudson Affidavit #1 at para 16).

He further deposed that the Applicant does not release the names of its customers connected with their buying practices or the volume of egg products that it sells to them, and did not anticipate that customer names and orders would be disclosed to requesting parties when that information was provided to CFIA for inspection purposes. [ 73 ] In my view, the names of customers and brands listed under the “Lot Description” is commercial information.

So too is the number of units in the lot, but only to the extent that it portrays the volume of that product shipped to that customer on that day. [ 74 ] As to whether this information is confidential, Justice MacKay gave some guidance in Air Atonabee (a view that was seemingly accepted by the Supreme Court in Merck Frosst at para 133 ) as to how to make this determination: My review of the authorities, facilitated in part by submissions of counsel, is undertaken in order to construe the term “confidential information” as used in subs. 20(1)(

b) in a manner consistent with the purposes of the Act in a case where the records in question, under control of a government department, consist of documents originating in the department and outside the department. This review leads me to consider the following as an elaboration of the formulation by Jerome A.C.J. in Montana , supra, that whether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely: (

a) that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on its own, (

b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and

(

c) that the information be communicated, whether by law or supplied gratuitously, in a relationship between government and the partysupplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fosteredfor public benefit by confidential communication. [75] While Mr. Hudson concedes that it would be possible for a competitor to determine who the Applicant’s customers are from aview of product offers in stores, he states that it is not practical to obtain information about the volumes they purchase in that manner.

The Respondent points out that CFIA reports represent a random sample inspection of some of the Applicant’s products and do notrepresent complete customer lists or detail the entire type and volume of customer purchases. These are both valid points. [76] However, Mr. Hudson states at paragraph 22 of Hudson Affidavit #1: 22.

While it would be possible for a competitor to determine who Burnbrae’s customers are from a plain view of product offerings “instore”, it is not possible to determine the volumes of shipment and the other information contained in these CFIA records or the results ofquality control inspections. I can also advise that Burnbrae’s customer base is vast and without these records it would be a considerableundertaking to develop a complete picture of the diversity of our customers and the volumes we ship to those customers.

The recordscontained in sealed Exhibit “A”, to the extent that disclosure requests were made on a continuous basis, would allow a competitor orother person to gather valuable Burnbrae customer data and buying habits. I can advise the Court that we are aware of repeated requestsfor this information. Burnbrae has instructed its solicitors to make an Application for Judicial Review of an identical request, whichdemonstrates a serious attempt by the requestor to secure as much of this confidential business information as possible.

Further,Burnbrae received notice on June 6, 2013 that further requests are being made for additional CFIA records.” [77] It must be assumed that the second judicial review referenced by Mr. Hudson is T-1053-13 as he has not stated otherwise. Acopy of the referenced June 6, 2013 notice was not provided with his affidavit. [78] What this does confirm is that, at least in theory, by repeated or multi-year requests, a requestor could gather and use thisinformation to identify portions of the Applicant’s customer base.

In that regard, attached to CFIA’s April 2, 2013 letter (T-669-13) aretwelve Shell Egg Product Inspection Reports Origin for the period October 6, 2009 to December 12, 2011. And, attached to its May 27,2013 letter (T-1053-13) are over eighty Shell Egg Product Inspection Reports. Thus, a considerable number of reports resulted from thetwo confirmed requests. Mr.

Hudson deposes that the Applicant does not release the names of its customers connected with their buyingpractices or the volumes of egg products sold to them as this would provide competitors with insight into emerging markets and the focusof the Applicant’s sales efforts with existing clients. [79] For this reason I am satisfied that the content of the records pertaining to customer names and/or brands combined with thevolume of the product specific to each of those customers is information not available from sources otherwise accessible by the public orthat could not practicably be obtained by observation or independent study by a member of the public acting on its own. [80] The next question is whether the information originated and was communicated in a reasonable expectation of confidence thatit would not be disclosed.

Mr. Hudson’s evidence on this issue is set out above. [81] It should also be noted that the bottom of the Shell Egg Product Inspection Reports states the following in fine print: The information you provide on this document is collected by (for) the Canadian Food Inspection Agency under the authority of theCanada Agricultural Products Act for the purpose of food safety. Some information may be accessible or protected as required under theprovisions of the Access to Information Act. Information that could cause you or your organization injury if released is protected fromdisclosure as defined in

section 20 of the Access to Information Act. [82] This is, at best, ambiguous. [83] The Respondent submits that the underlying documents at issue contain CFIA’s findings and recommendations arising fromits regulatory enforcement requirements and that, accordingly, there was no reasonable expectation of confidentiality with regard toCFIA’s assessment and conclusions. While that may be, it appears to me that in regard to the Shell Egg Product Inspection Reports, theApplicant appears to be only challenging under s. 20(1)(

b) the customer information contained in the “Lot Description” column and thevolumes contained in the “Units in Lot” column, not the release of the reports as a whole. [84] The Respondent also submits that the disputed information is not exempt as it was not supplied to government by a thirdparty. The records consist of information that reflects CFIA’s opinions, comments and recommendations arrived at in the course of itsregulatory mandate.

However, my own review of the Shell Egg Product Inspection Reports shows that they do not contain opinions,comments and recommendations, but merely record information that the inspectors observed or, in some cases, were informed of. [85] In that regard, in Les Viandes, above, Justice Gauthier stated, with respect to s. 20(1)(

b) and inspection reports: [44] As the Federal Court of Appeal indicated in 1989 in Canada Packers Inc. v. Canada (Minister of Agriculture), (FCA), [1989] 1 F.C. 47 (F.C.A.), at paragraph 13, concerning the reports of a meat inspection audit team on abattoirs in the Kitchenerarea, none of the information contained in this kind of report was supplied by the appellant. “The reports are, rather, judgments made bygovernment inspectors on what they have themselves observed. In my view, no other reasonable

interpretation is possible, either of thisparagraph or of the facts, and therefore paragraph 20(1)(

b) is irrelevant in the cases at bar.” [45] On the confidentiality of the information collected in the inspection reports, Justice Pinard indicated in Coopérative fédérée duQuébec (c.o.b. Aliments Flamingo) v. Canada(Agriculture and Agri-Food), (FC), [2000] F.C.J. No. 26 (F.C.) (QL),at paragraph 16: Finally, although the applicants do not specifically rely on the exemption contained in paragraph 20(1)(

b) of the Act, they do treat theinspection reports as confidential. In this regard, suffice it to recall that these records are collected by a government agency and in legalterms constitute records of the Government of Canada subject to the Act (see the recent decision of the Federal Court of Appeal in The

Information Commissioner of Canada and The President of the Atlantic Canada Opportunities Agency (November 17, 1999), A-292-96). [46] The Court has carefully examined each of the reports which were the subject of the application for review and is satisfied that nodistinctions need be made here. [47] The Court cannot accept the applicant's

interpretation that, as it [TRANSLATION] “opened its doors” to the inspectors, it tosome extent provided the information contained in the reports.

The applicant is legally required to allow inspectors to go about theirwork. [48] Further, as I indicated at the hearing, in view of its past experience, it is clear that Les Viandes du Breton Inc. could notreasonably think that these inspection reports were or could be kept confidential by the respondent. [49] In fact, in all cases where the disclosure of such reports has been challenged, the courts have upheld the decision to disclose (see,for example, Canada Packers Inc. v. Canada (Minister of Agriculture), above; Intercontinental Packers Limited v.

Canada (Minister ofAgriculture)(1987), 14 F.T.R. 142 (F.C.); Gainers Inc. v. Canada (Minister of Agriculture) (1987), 14 F.T.R. 133 (F.C.), aff’d. (1988),87 N.R. 94 (F.C.A.); and Viandes du Breton Inc. v. Canada (Department of Agriculture and Agri-Food), above). [50] Accordingly, the Court attaches little weight to paragraphs 34, 35 and 37 of Mr.

Breton's confidential affidavit, which does notexplain the basis for his statements about the way in which the Agency treats such reports. [51] In view of the foregoing, the applicant knew or should have known that, as a rule, these reports are disclosed to personsrequesting them under the Act. [52] The fact that the reports and the information they contain are treated confidentially within the business does not in any way alterthe way in which they are treated by the Agency or the principles set out in the Act. [86] In Canada Packers, above, a request was made to the Department of Agriculture under the Act for access to the meatinspection team audit reports for meat packing plants in Kitchener.

With respect to s. 20(1)(b), the Federal Court of Appeal held: [11] Paragraph 20(1)(

b) relates not to all confidential information but only to that which has been “supplied to a governmentinstitution by a third party”. Apart from the employee and volume information which the respondent intends to withhold, none of theinformation contained in the reports has been supplied by the appellant. The reports are, rather, judgments made by governmentinspectors on what they have themselves observed. In my view no other reasonable

interpretation is possible, either of this paragraph orof the facts, and therefore para. 20(1)(

b) is irrelevant in the cases at Bar.” [87] While Les Viandes and Canada Packers dealt with audit reports, the same analysis would apply to inspection reports.

Also,they illustrate that information provided – such as volumes and, in the case of the Applicant, customer names – can properly be redactedfrom inspection reports. [88] Finally, in Air Atonabee, above, Justice MacKay stated: [50] […] The difference between the parties lies in relation to documents which on their face appear as department documentscompiled by public officers reporting on their actions or observations from inspections but which the applicant contents are based oninformation provided by City Express in the cooperative relationship that had developed between staff of the two parties. [51] In my view, where the record consists of the comments or observations of public inspectors based on their review of the recordsmaintained by the third party at least in part for inspection purposes, the principle established by Can.

Packers Inc., supra, applies andthe information is not to be considered as provided by the third party.

In any other case where there is real doubt about the origin ofinformation leading to the records in issue, I would be prepared to resolve that doubt as urged by the applicant, that is, that theinformation originates with the applicant City Express who is responsible in every way and at all times for all operations of thecompany, whereas inspection staff are not, so far as I am informed, exclusively engaged at all times in supervision or inspection of theapplicant’s operations nor are they responsible for those operations.

In this case, on review of the records in issue there are no instanceswhere reliance on such a presumption is necessary.” [89] This was summarized by the Supreme Court in Merck Frosst, above: [154] What, then, are the governing legal principles? [155] The first is that a third party claiming the s. 20(1)(

b) exemption must show that the information was supplied to a governmentinstitution by the third party. [156] A second principle is that where government officials collect information by their own observation, as in the case of an inspectionfor instance, the information they obtain in that way will not be considered as having been supplied by the third party.

As MacKay J.said in Air Atonabee, at p. 275: In my view, where the record consists of the comments or observations of public inspectors based on their review of the recordsmaintained by the third party at least in part for inspection purposes, the principle established by Can. Packers Inc., supra, applies andthe information is not to be considered as provided by the third party. See also Canada Packers, at pp. 54-55; Les viandes du Breton Inc. v.

Canada (Canadian Food Inspection Agency), 2006 FC 335, at paras. 44-49. [157] A third principle is that whether or not information was supplied by a third party will often be primarily a question of fact. Forexample, if government officials correspond with a third party regarding certain information, it is possible that the officials have prior

knowledge of the information gained by their own observation or other sources. But it is also possible that they are aware of this information because it was communicated to them beforehand by the third party. The mere fact that the document in issue originates from a government official is not sufficient to bar the claim for exemption.

But, in each case, the third party objecting to disclosure on judicial review will have to prove that the information originated with it and that it is confidential. [158] To summarize, whether confidential information has been “supplied to a government institution by a third party” is a question of fact. The content rather than the form of the information must be considered: the mere fact that the information appears in a government document does not, on its own, resolve the issue.

The exemption must be applied to information that reveals the confidential information supplied by the third party, as well as to that information itself. Judgments or conclusions expressed by officials based on their own observations generally cannot be said to be information supplied by a third party. [ 90 ] The evidence before me is that, with respect to the Shell Egg Product Inspection Reports, the Applicant provided the customer names and brands to the inspectors. This was commercial information that the Applicant treated as confidential.

As the exemption must be applied to information that reveals the confidential information supplied by the third party, as well as to that information itself, CFIA erred to the extent that it refused to exempt from those records, under Lot Description, the customer names and brands. As to the Units In Lots, in my view, once the customer name and brand information is severed, there is no longer any connection that can be gleaned from the Shell Egg Product Inspection Reports that would render the information pertaining to the product volume confidential. Mr.

Hudson’s evidence in this regard links the volumes to the customer identities.

Accordingly, once that link is severed by removal of the customer identification, there is no longer ongoing confidentiality regarding the volumes set out in the Shell Egg Product Inspection Reports. [ 91 ] As stated in Air Transat AT Inc v Canada (Transports Canada) , 2001 FCJ No 108 at para 14 , var’d on appeal, 2002 FCA 404 [ Air Transat ]: […] In my view, the fact that a document is considered as a federal government document covered by the Act is not sufficient to support a conclusion that the content of the document cannot fall within the exception set out in s. 20(1)(b).

A distinction should be made between the analysis done by the government organization from information obtained during the inspection and the information supplied directly to the inspectors by the third party. Where there is an inspection report, which additionally is a federal government document covered by the Act, anyone seeking an exception to the Act must prove the confidentiality of the information initially supplied as well as showing the ongoing confidentiality of the information .

In other words, in my opinion it is necessary to establish that the information was confidential when it was given to the inspectors and had to remain confidential throughout the inspection report, which includes the information contained in the final report. This must be shown by the submission of real direct evidence. […] [Emphasis Added] [ 92 ] Thus, while the Shell Egg Product Inspection Reports viewed as a whole do not meet the s. 20(1)(

b) exemption requirements, the customer names and brands, for the reasons above, do fall within that exemption. [ 93 ] I would apply the same reasoning to the Notices of Detention and Notices of Release from Detention such that only the customer names and brands fall within the exemption pursuant to s. 20(1) (

b) of the Act . Section 20(1)(

c) Applicant’s Position [ 94 ] The Applicant submits that the disputed information in the Shell Egg Product Inspection Reports, Notices of Detention, and Notices of Release from Detention, which discloses the identity of its customers with the type and volume of product they purchase, would prejudice the Applicant’s competitive position and provide an unearned and obvious financial advantage to its competitors ( Wells v Canada (Minister of Transport) , (1995) 103 FTR 17 at para 9 ). [ 95 ] The Applicant also submits that, in addition to the disputed commercial information, the release of the information contained in various of the reports relating to sanitation and the weight and quality of the eggs inspected has had a demonstrated negative effect on the Applicant’s business and reputation as evidenced by an online

article that was published in May, 2013 ( Les Viandes , above, at para 9 ). The Applicant submits that it can reasonably be anticipated that the erroneous and defamatory implication of this

article will continue to appear in other articles if the records are disclosed. Information in the Pregrade/Canada Nest Run Product Inspection Reports could be manipulated and misinterpreted with negative effect if reported separately from the overall sample size. [ 96 ] If disclosed, information in the Pregrade/Canada Nest Run Product Inspection Reports could also have a significant prejudicial effect on the Applicant’s contractual relationships with the producers.

Furthermore, disclosure of CFIA’s findings, sanitation ratings and remarks contained in the Egg Station Inspection/Rating Reports would have a negative impact on the Applicant’s reputation in the marketplace. Additionally, that the exemptions in s. 20(1) apply to reviewers’ notes and correspondence ( Merck Frosst Canada & Co v Canada (Minister of Health), 2004 FC 959 at paras 45 and 47 ). Respondent’s Position [ 97 ] The Respondent submits that the Applicant has not met the s. 20(1)(

c) exemption requirement that it establish a reasonable expectation of probable harm ( Merck Frosst , above, at paras 196, 199 ; Canada Packers , above, at para 20 ) and that affidavit evidence that is speculative is insufficient ( Canada Post Corporation v Canada (Minister of Public Works and Government Services) , 2004 FC 270 at paras 45-47 [ Canada Post 2004]; AstraZeneca , above, at para 46). [ 98 ] The Hudson evidence is speculative and points only to a single blog post as evidence of harm. There is no evidence as to how the online post would actually harm the Applicant, particularly when the Applicant confirms that the posting is erroneous ( SNC-Lavalin

v Canada (Minister of Public Works), [1994] FCJ No 1059 at para 43 (TD) [SNC-Lavalin]). There is also no risk that release of thedisputed information would allow competitors insight into the Applicant’s customers and its marketing and sales strategies as theinformation reflects CFIA’s assessments and conclusions, and the information about the Applicant’s customers is publicly available.

Knowledge of how the regulatory process works is not information which s. 20 is designed to exempt from disclosure (AstraZeneca,above, at para 94; Merck Frosst, above at para 218). [99] The Respondent states that the Applicant’s claim that the release of the disputed information could be manipulated andmisinterpreted with negative effect is not a valid objection under s. 20(1)(c) (Merck Frosst, above, at para 224; Air Transat, above, atpara 25).

Analysis [100] Pursuant to s. 20(1)(c), the head of a government department shall refuse to disclose a requested record that contains“information the disclosure of which could reasonably be expected to result in material finance loss or gain to, or could reasonably beexpected to prejudice the competitive position of, a third party.” [101] In AstraZeneca, above, Justice Phelan provided the following guidance as to the exemptions: [41] Subsection 20(1) creates two types of tests for exemptions. Paragraphs (

a) and (

b) create a "class" test where the nature orcharacteristics and treatment of the information is determinative. If a document falls within the class, no further inquiry is called for. [42] Paragraphs (

c) and (

d) create a "harms" test under which the party claiming exemption must establish material financial loss orgain or prejudice to competitive position or interference with contractual or other negotiations. [43] In each case, the burden of proof is upon the person seeking the exemption. It must be real proof, mere recitation in an affidavitof the legal test found in the statute is not sufficient. For example, phrases such as "release of the record will cause the company materialfinancial loss" without a clear showing of how that result might occur is of little assistance. [44] While paragraphs (

a) and (

b) do not admit to speculation, paragraphs (

c) and (

d) do. The standard is "could reasonably beexpected". The legislation recognizes that with respect to proof of harm, the Court must engage in reasonable speculation. [45] Adequacy of proof of expected harm must be flexible and the Court must recognize that in many circumstances a party cannotrely on harm from past disclosures as evidence of reasonably expected harm because past disclosure of that type of evidence may neverhave occurred. [46] Recognizing the inherently speculative nature of proof of harm does not however relieve a party from putting forward somethingmore than internally held beliefs and fears.

Evidence of reasonably expected results, like forecasting evidence, is not unknown to courtsand there must be a logical and compelling basis for accepting the forecast. Evidence of past documents of information, expert evidence,evidence of treatment of similar evidence or similar situations is frequently accepted as a logical basis for the expectation of harm and asevidence of the class of documents being considered. [47] However, each case must turn on the evidence presented.

It cannot be assumed that a certain type of document will be acceptedfor exemption from disclosure merely because a similar document was exempt in another case. [102] In order to rely on the s. 20(1)(

c) exemption, the Applicant must demonstrate, on a balance of probabilities, that there is a“reasonable expectation of probable harm” (Merck Frosst, above, at paras 192, 199; Canada Packers, above, at para 20; AstraZeneca,above, at para 77). [103] In Merck Frosst, above, the Supreme Court of Canada stated: [199] I would affirm the Canada Packers formulation. A third party claiming an exemption under s. 20(1)(

c) of the Act must show thatthe risk of harm is considerably above a mere possibility, although not having to establish on the balance of probabilities that the harmwill in fact occur.

This approach, in my view, is faithful to the text of the provision as well as to its purpose. [104] Similarly, in Aventis Pasteur Ltd v Canada (Attorney General), 2004 FC 1371 at para 31, Justice Kelen of the Federal Courtstated that “it is not sufficient for the applicant to generally speculate as to the probability of harm which the disclosure would cause,rather the applicant must clearly show that the disclosure will probably cause it harm.” [105] In Canada Post 2004, this Court addressed the evidentiary requirement of s. 20(1)(c): [44] The remaining issue is whether the Applicant has met the test for exemption against disclosure pursuant to subsection 20(1)(c).According to the jurisprudence, an exemption from access pursuant to this subsection requires proof, on a balance of probabilities, of a"reasonable expectation of probable harm": Canada Packers Inc., supra and Saint John Shipbuilding Ltd. v.

Canada (Minister of Supplyand Services)(1989), 24 F.T.R. 32 at 36, aff'd (1990), (FCA), 107 N.R. 89 (F.C.A.). [45] Affidavit evidence that is vague or speculative is insufficient to establish the reasonable expectation of probable harm that isrequired pursuant to subsection 20(1)(c); see SNC-Lavalin, supra and Canadian Broadcasting Corporation, supra. [46] I acknowledge the affidavit evidence filed by the Applicant as part of the confidential Application Record contains many detailsconcerning the alleged harm that could enure to the Applicant if the records were disclosed.

However, the detail of an affidavit is notdeterminative of whether certain records meet the criteria for exemption pursuant to subsection 20(1)(c). [47] In Canadian Broadcasting Corporation, supra, the Court said the following at paragraphs 25 and 28:

In SNC-Lavalin Inc. v. Canada (Minister of Public Works) (1994) , 79 F.T.R. 113 at page 127 (F.C.T.D.) , the court held the applicant cannot merely affirm by affidavit that disclosure would cause the harm discussed in paragraph 20(1) (

c) of the Act .

The court stated that these affirmations are the very findings that the court must make and so further evidence establishing probable harm is needed. […] It is also not enough to merely speculate that the applicant may suffer some probable harm if the requested information is made public. [ 106 ] In this matter the Applicant submits that the disputed information in the Shell Egg Product Inspection Reports, Notices of Detention and Notices of Release from Detention would prejudice its competitive position as this information could be used to develop a picture of the Applicant’s customer base, their shipping volumes, buying habits, product preferences, and needs.

The Applicant further submits that the information in these same reports and in the Pregrade/Canada Nest Run Inspection Reports relating to sanitation and the weight and quality of eggs inspected has had a demonstrated negative effect on the Applicant’s business and reputation. [ 107 ] As to the first point concerning the Applicant’s commercial practices, I have already determined that the customer name and brand information should not be disclosed. Without information to identify the customers, the volume data is not sufficient to meet the burden as stated in Merck Frosst , above, at para 192 .

To satisfy the s. 20(1)(

c) exemption, the Applicant must show a reasonable expectation of probable harm by demonstrating that “the risk of harm is considerably above a mere possibility, although not having to establish on the balance of probabilities that the harm will in fact occur.” If the volume data cannot be tied to specific customers, the risk of harm arising from its disclosure is less than a mere possibility. [ 108 ] In support of its concern of a loss of business and reputation as a result of disclosure of information regarding sanitation and the weight and quality of eggs inspected, Hudson Affidavit #1 refers to an excerpt from a blog article, published on May 31, 2013, which states: Reports of random-sampling testing of eggs processed by Canada’s two largest egg-grading companies indicate they are putting cracked, dirty and wrong-sized eggs into their retail-ready cartons. […] I have obtained the CFIA reports relating to the Maple Lynn Foods Ltd plant.

Burnbrae runs at Strathroy. […] The Information Commissioner court case relates to an Access-to-Information request I filed in February, 2012, for “copies of the results of random sampling and checking of eggs to determine the accuracy of grading at facilities owned by L.H.

Gray and Son Ltd. and/or Grayridge Farms Ltd. in the province of Ontario, and of Burnbrae Farms Ltd., also in the province of Ontario, for the fourth quarters of (October, November, and December) of 2009, 2010 and 2011.” […] Because they are from CFIA’s random sampling, they should be representative of all the eggs the two companies market in Ontario. They hold about 90 per cent market share in the province. […] I obtained 11 CFIA reports on Maple Lynn from the Ottawa court records, and every one of them identifies cracked eggs packed in Grade A cartons. (Blog

article dated May 31, 2013, Exhibit D to Hudson Affidavit #1) [ 109 ] Mr. Hudson states that the erroneous and defamatory implication of this

article is that the Applicant systematically includes cracked, dirty and wrong-sized eggs within retail ready cartons and, while this is farfetched, that it can reasonably be anticipated that these types of articles will continue to appear if the records are released. [ 110 ] Mr. Hudson does not explain why, if the blog post he relies on is erroneous and far fetched, it can reasonably be anticipated that similar articles will follow. Nor does he explain how the blog post demonstrates a reasonable expectation of probable harm.

The question is whether this blog post is sufficient to demonstrate that the risk of harm is considerably above a mere possibility, although not having to establish on the balance of probabilities that the harm will in fact occur. [ 111 ] While the blog post is unflattering and, according to Mr. Hudson’s evidence, erroneous, there is no evidence that it has or is likely to cause actual harm. In my view, given the jurisprudence on s. 20(1) (

c) and the evidence necessary to demonstrate that the anticipated harm from disclosure “could reasonably be expected,” the blog post is insufficient to clearly demonstrate probable harm. [ 112 ] It also seems to me that, in the social media reality within which individuals and companies now live and work, the idea that a single blog post could serve to defeat the purpose of the Act by precluding disclosure of inspection reports designed to address regulatory compliance should not easily be accepted.

If such posts are defamatory then the remedy is an action against its author, not the precluding of disclosure of inspection reports under the Act. [ 113 ] In that regard in Les Viandes du Breton Inc v Canada (Department of Agriculture and Agri-food) , [2000] FCJ No 2088 at para 11 (TD) , Justice Nadon, then a judge of the trial division, held that it is not sufficient for the plaintiff to show a possibility of harm or to speculate as to the probability of harm which the disclosure would cause. Rather, the plaintiff must clearly show that the disclosure will probably cause it harm.

Justice Nadon also noted that the consequences discussed by the plaintiff in that case were a result of speculation rather than of thorough analysis or study. Similar to this case, the plaintiff in that case had argued that the likelihood of

harm from disclosure was linked to the possibility of unjust or incorrect coverage of the content of the reports by the media. Theplaintiff alluded to unjust press coverage which had occurred in the past.

Justice Nadon relied on Coopérative fédérée du Québec vCanada (Agriculture and Agri-food), (FC), [2000] FCJ No 26 (TD) and held that the media coverage cannot bepresumed to be unfair or negative, noting that the plaintiff had other legal remedies if there was unfair or unfounded coverage. [114] Hudson Affidavit #2 states that the Pregrade/Canada Nest Run Inspection Reports record CFIA quality checks on certain lots ofungraded eggs from the Applicant’s producers. The records also include the weight and quality of the eggs inspected, the number ofrejected eggs and the reasons the eggs were rejected.

It goes on to state that disclosure could damage the Applicant’s relationships andcontracts with its producers who would not expect their information to be communicated to third parties or the public, “especially if theyare experiencing difficulties.” Further, the information could easily be manipulated and misinterpreted with negative effect. Forexample, information regarding the number of rejected eggs could be reported separately from the overall size sample as was the case ofthe blog post.

Such suggestions could undermine a producer’s reputation and damage the goodwill they have developed with keyindustry partners such as their feed supplier, pullet grower, hatchery, and other industry partners. [115] In my view this is purely speculative. The Pregrade/Canada Nest Run Inspection Reports identify the inspection location (theApplicant’s facility), the name of the producer, lot description (e.g. white eggs, green trays and plastic divides), the number of units inthe lot (e.g. 480 x 15 dozen), the sample size, and the number of eggs examined.

For Pregrades, the number of eggs with cracked shells,inferior shells, dirty shells, etc are set out as well as whether the lot is accepted or not, and any additional remarks. For Canada Nest Runeggs, the number of cracked shells, dirty shells, and leakers and rejects are set out. It is not apparent to me how disclosure of thisinformation by CFI

[…]