U.S. Steel Canada Inc. (Re)

U.S. Steel Canada Inc. (Re) Collection Decisions of the Court of Appeal Date 2016-01-26 Neutral citation 2016 ONCA 68 Docket numbers C61176 Judges Hoy, Alexandra; Blair, Robert Ashley; Lauwers, Peter D. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: U.S. Steel Canada Inc. (Re), 2016 ONCA 68 DATE: 20160126 DOCKET: C61176 Hoy A.C.J.O., Blair and Lauwers JJ.A. IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED AND IN THE MATTER OF A PROPOSED PLAN OF COMPROMISE OR ARRANGEMENT WITH RESPECT TO U.S. STEEL CANADA INC. Andrew Hatnay and Adrian Scotchmer, for the appellants Non-USW Active Salaried Employees and Non-USW Salaried Retirees Kristian Borg-Olivier, for the appellants USW and USW Local 1005 Michael Kovacevic, for the appellant City of Hamilton Michael E. Barrack and John Mather, for the respondent United States Steel Corporation Sharon Kour, for the respondent U.S. Steel Canada Inc. John L. Syme, Joseph Cheng and Jacqueline Dais-Visca, for the respondent Attorney General of Canada Jonathan G. Bell, for the respondent Ernst & Young Inc. (the Monitor) Peter D. Ruby, for the Superintendent of Financial Services (Ontario) Heard: November 19, 2015 On appeal from the order of Justice Wilton-Siegel of the Superior Court of Justice, dated May 19, 2015, 2015 ONSC 2885. Hoy A.C.J.O.: I OVERVIEW [1] This appeal concerns the scope of the privilege in s. 36 of the Investment Canada Act[1] (the “ICA”) over information obtained by the Minister of Industry[2] or an officer or employee of Her Majesty in the course of the administration and enforcement of the ICA. The ICA provides for the review of significant investments in Canada by non-Canadians. [2] U.S. Steel Canada Inc. (“USSC”) is subject to protection under the Companies’ Creditors Arrangement Act[3] (the “CCAA”). Stakeholders in the CCAA proceedings brought a motion for disclosure of the contents of a settlement agreement arrived at in the course of litigation to enforce the ICA (the “Settlement Agreement”). The Settlement Agreement was entered into by USSC, its American parent, United States Steel Corporation (“USS”), and the Attorney General of Canada (on behalf of Industry Canada[4]) (the “AGC”) on December 8, 2011. It contains written undertakings provided by USS to the Minister for the purposes of the ICA. The central issue is whether s. 36 of the ICA bars this disclosure. [3] The CCAA judge concluded that the Settlement Agreement was privileged in its entirety under s. 36 of the ICA. Because he so concluded, he did not consider whether the Settlement Agreement was protected by common law settlement privilege. He dismissed the motion of four key stakeholders – the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), the court-appointed Representative Counsel to the non-USW active and retired employees of USSC, USW Local 1005 and the City of Hamilton – seeking production of the Settlement Agreement. They appeal the dismissal of their motion. [4] For the reasons that follow, I conclude that s. 36 of the ICA does not prohibit USSC and USS from disclosing the Settlement Agreement. [5] I would return the issue of whether disclosure of the Settlement Agreement is barred by common law settlement privilege to the CCAA judge for determination in the exercise of his discretion in the CCAA proceeding. As the CCAA judge did not have the Settlement Agreement before him, I would direct the monitor of USSC, Ernst & Young Inc. (the “Monitor”), to disclose the Settlement Agreement to the CCAA judge so that he may review it and, if he deems it helpful, entertain further submissions by the parties before determining this issue. II THE FACTS [6] USS is a publicly-traded Delaware corporation and one of the largest steel producers in North America. [7] In 2007, USS purchased Stelco Inc., a Canadian steel company with facilities in the City of Hamilton and in Nanticoke, Ontario. Stelco had emerged from CCAA protection in 2006. The acquisition was subject to the review and approval of the Minister under Part IV of the ICA. The review process under Part IV is intended to ensure that a proposed investment by a non-Canadian company is likely to be of net benefit to Canada. [8] USS was given permission to purchase Stelco after it gave certain undertakings to the Minister in respect of the acquisition. The undertakings included commitments by USS in respect of production and employment levels in Canada. [9] USS renamed Stelco, calling it U.S. Steel Canada Inc., and remains its ultimate owner. USSC faced financial difficulties in 2008, apparently due to the global recession. In 2009, the Minister sent a demand to USS pursuant to s. 39 of the ICA, claiming that USS was in contravention of the employment and production undertakings, and requesting that USS remedy the alleged defaults, show that there was no default, or justify any non-compliance. USS denied any non-compliance with the undertakings for which it could be held accountable. USS took the position that any inability to meet its objectives was the result of factors beyond its control for which it could not be held responsible. [10] On July 17, 2009, the AGC filed an application under s. 40 of the ICA, seeking an order directing USS to comply with the undertakings and to pay certain penalties for any breach. The appellant, the USW, among others, was given intervener status in the application. [11] The litigation was ultimately settled without any judicial finding on the merits when USS, USSC, and the AGC entered into the Settlement Agreement. Some details of the Settlement Agreement have been publicly disclosed, including the fact that it contains new written undertakings provided by USS to the Minister for the purposes of the ICA. Some of the new undertakings were publicly announced, such as USS’s commitment to continue producing steel in Canada, to maintain some of its Ontario operations until the end of 2015, and to make certain capital investments. The Settlement Agreement requires that the balance of its terms be kept confidential and the details are not otherwise publicly available. [12] As a result of continuing financial difficulties, USSC applied for and was granted CCAA protection on September 16, 2014. In an affidavit filed in support of its application, USSC referred to the Settlement Agreement and asserted that its confidentiality was protected both by the terms of the agreement and s. 36 of the ICA. Ernst & Young Inc. was appointed as the Monitor of USSC. USS has filed claims in the USSC claims process for amounts it alleges are owed by USSC, including unsecured claims of over $1.9 billion and a secured claim of over $78 million. [13] The Monitor has a copy of the Settlement Agreement. On January 7, 2015, counsel for the USW requested disclosure of the Settlement Agreement from the Monitor, if the parties would consent. The Monitor was told on January 23, 2015 that the parties would not agree to disclose the Settlement Agreement and took the position that it could not disclose it without consent. [14] On April 10, 2015, the appellants brought the motion below in the CCAA proceedings, seeking an order to compel Industry Canada, USS and/or USSC to disclose the Settlement Agreement and, in particular, the undertakings contained therein. Their position was that the information sought was relevant to an assessment of restructuring proposals being made by stakeholders, and would permit them to participate in the restructuring process on a fully informed basis. In particular, they submitted that USS had continuing obligations under the Settlement Agreement that would need to be addressed in any restructuring, such as continuing to produce steel at the Canadian plants and continuing to make certain capital investments. They also believe that the Settlement Agreement would disclose breaches of the undertakings, which they would rely on to object to the status of the USS claims against USSC. The City of Hamilton filed evidence of the financial importance to it of USSC’s Hamilton works. [15] By letter dated April 17, 2015, the Director General of the Investment Review Division of Industry Canada advised the parties that the Minister’s delegate, appointed pursuant to s. 6 of the ICA, had reviewed the Settlement Agreement and come to the opinion that disclosure of the Settlement Agreement was not necessary for any purpose relating to the administration or enforcement of the ICA and that such disclosure would prejudicially affect the conduct of USS’s business affairs. This determination is contemplated by the privilege regime in s. 36 of the ICA, discussed below. The letter also stated that the Settlement Agreement required the parties to maintain it as confidential, save for the details that were already publicly disclosed. III THE SCHEME OF THE ICA AND s. 36 [16] Before reviewing the CCAA judge’s reasons, it is helpful to briefly outline both the purposes and relevant portions of the framework of the ICA, as well as the structure of s. 36 and how it interfaces with the Access to Information Act, R.S.C., 1985, c. A-1 (the “ATIA”). Section 36 is reproduced in Schedule “A” to these reasons, together with some of the other sections of the ICA referred to below. Purposes of the ICA [17] Section 2 of the ICA provides that its purposes “are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security”. The Review Process [18] Part II of the ICA exempts certain investments from its application (s. 10). In the case of certain other investments not exempted by Part II, Part III of the ICA requires only that the non-Canadian making the investment give notice of its investment and provide the information prescribed in that Part (ss. 11-13). Part IV requires that, in a narrower category of “reviewable” investments, the non-Canadian satisfy the Minister that the investment is likely to be of net benefit to Canada. USS’s investment in USSC was a reviewable investment. [19] Where an investment is reviewable under Part IV, the non-Canadian must file an application with the Director containing “such information as is prescribed” (s. 17(1)). The Director may request that the non-Canadian provide any other information the Director considers necessary (s. 17(3)). The Director then refers to the Minister any of the following material obtained in the course of the review: the information contained in the application and any other information submitted by the applicant; any information submitted by the person or entity from whom or which control of the business is being or has been acquired; any written undertakings to Her Majesty in right of Canada given by the applicant; and any representations submitted to the Director by an affected province (s. 19(1)). [20] If the Minister is satisfied that the investment is likely to be of net benefit to Canada “having taken into account any information, undertakings and representations referred to the Minister by the Director”, then, subject to certain exceptions, the Minister must give notice of that evaluation to the applicant within a specified time period. [21] If the Minister is not so satisfied, he or she is required to give notice to that effect to the applicant, who then has the opportunity to make representations and submit undertakings to Her Majesty in right of Canada. The Minister will take those further representations and undertakings into account in making the decision (s. 23). The Enforcement of an Undertaking [22] Enforcement mechanisms are set out in Part VII of the ICA. If the Minister believes that a non-Canadian has failed to comply with a written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada, the Minister may send a demand to the non-Canadian requiring it to remedy the default (s. 39(1)). If the non-Canadian fails to comply, the Minister may apply to a superior court for an order directing the non-Canadian to comply with the written undertaking (s. 40(1)). As discussed above, the Minister sent a demand to USS and subsequently commenced an application under s. 40(1). The Settlement Agreement was concluded before the Minister’s application was judicially determined. The Settlement Agreement was clearly concluded in the course of the enforcement of the ICA. The Statutory Privilege [23] Section 36 is in Part VI of the ICA, which is entitled “General”. While it is reproduced in its entirety in Schedule “A” to these reasons, for ease of reference, ss. 36(1) and (2) provide as follows: 36(1) Subject to subsections (3) to (4), all information obtained with respect to a Canadian, a non-Canadian, a business or an entity referred to in paragraph 25.1(c) by the Minister or an officer or employee of Her Majesty in the course of the administration or enforcement of this Act is privileged and no one shall knowingly communicate or allow to be communicated any such information or allow anyone to inspect or to have access to any such information. (2) Notwithstanding any other Act or law but subject to subsections (3) and (4), no minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province shall be required, in connection with any legal proceedings, to give evidence relating to any information that is privileged under subsection (1) or to produce any statement or other writing containing such information. [Emphasis added.] [24] Exceptions to the statutory privilege created by s. 36(1) are then set out in ss. 36(3) to (4), and the exception in para. 36(4)(b) is qualified by s. 36(5). [25] Three exceptions in s. 36(4) are relied on by the appellants to argue that the Settlement Agreement, or the undertakings contained therein, are exempt from privilege: para. (a), which excepts “information for the purposes of legal proceedings relating to the administration or enforcement of [the ICA]”; para. (b), which excepts “information contained in any written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada”; and para. (d), which excepts “information the communication or disclosure of which has been authorized in writing by the Canadian or the non-Canadian to which the information relates”. [26] By its April 17, 2015 letter, discussed above, the AGC has invoked s. 36(5): (5) No minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province may be required, in connection with any legal proceedings or otherwise, to give evidence relating to or otherwise to communicate or disclose any information referred to in paragraph (4)(b) where, in the opinion of the Minister or a person designated by the Minister, the communication or disclosure of that information is not necessary for any purpose relating to the administration or enforcement of this Act and would prejudicially affect the non-Canadian that gave the written undertaking referred to in that paragraph in the conduct of the business affairs of that non-Canadian. [Emphasis added.] [27] USS argues that the exceptions in s. 36(4)(a) and (d) do not apply to the Settlement Agreement and, because the Minister has invoked s. 36(5), USS is not required to disclose the new undertakings to the appellants under s. 36(4)(b). The ATIA [28] The ATIA provides a right of access to information in records under the control of a government institution. However, that right is not absolute and the ATIA contains various exceptions. One exception is s. 24(1), which provides that, where a record “contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II”, the head of a government institution shall refuse to disclose it. Section 36 of the ICA is one of the provisions contained in Schedule II. Therefore, if a record contains information the disclosure of which is prohibited by s. 36, the Minister shall not disclose it in response to a request made under the ATIA. The statutory privilege provided for in s. 36 is therefore absolute, subject to the exceptions set out therein, and cannot be circumvented by resort to the ATIA. IV THE JUDGMENT BELOW [29] The CCAA judge noted at the outset of his reasons that the appellants abandoned their argument that the Settlement Agreement did not constitute “information”. Instead, they argued that the undertakings contained in the Settlement Agreement did not constitute “information” and were therefore not privileged under s. 36(1). [30] The CCAA judge concluded that “information” in s. 36 of the ICA covers undertakings given by USS to the Minister, including any undertakings in the Settlement Agreement. [31] He explained, at para. 27: [B]ecause the term “information”, as used in these provisions, is intended to capture all information provided by a prospective foreign investor to the Crown in the course of the administration and enforcement of the ICA, including in particular in the course of the approval process, it must also include undertakings given in connection with that process. This conclusion is supported [by] both the broad language of these provisions as well as by the policy of the [ICA]. [32] In his view, undertakings are statements of fact regarding a commitment that the foreign investor is making to the Minister, as well as a contractual obligation (para. 28), and are therefore “information”. He rejected the appellants’ arguments that written undertakings accepted by the Minister and undertakings provided in the enforcement context should be distinguished from undertakings not accepted by the Minister in the approval process and are not “information” for the purposes of the ICA. [33] The CCAA judge also rejected the appellants’ alternative argument that, even if the undertakings are “information” for the purposes of ss. 36(1) and 36(2), they do not constitute “information” for the purposes of the exemptions in s. 36(4). The basis for this argument is s. 36(4)(b), which provides an exclusion from the non-disclosure regime for “information contained in any written undertaking” except to the extent the Minister determines otherwise under s. 36(5). The appellants argued that this provision makes it clear that “information” and a “written undertaking” are different. While the CCAA judge acknowledged that it was possible to interpret the provisions in the manner proposed by the appellants on a reading of the ICA limited to the wording in paragraph 36(4)(b), he was not persuaded that this interpretation was correct based on a consideration of the provisions of s. 36 as a whole, as well as the purposes of the ICA. [34] The CCAA judge held that the structure of s. 36 required that the written undertaking contemplated in s. 36(4)(b) be treated as a reference to a document containing one or more undertakings, rather than to the contractual commitments themselves. This, he concluded, parallels the language of s. 36(2), which refers to “a statement or other writing containing such information”. And it is also consistent with his interpretation of s. 36(5). In his view, s. 36(5) was intended to apply to all information contained in any document to which s. 36(4)(b) would otherwise apply, including the undertakings given to the Minister. [35] He then dealt with the questions of whether Industry Canada, USS, and USSC were subject to the non-disclosure regime in s. 36 of the ICA, and if they were, whether he could order production using the court’s broad order-making powers under s. 11 of the CCAA. [36] Section 36(1) provides that “no one shall knowingly communicate” information obtained by the Crown in the administration or enforcement of the ICA. As such, the CCAA judge reasoned that, subject to the operation of the limited statutory exceptions in s. 36, Industry Canada, USS and USSC are subject to this statutory obligation of confidentiality. The CCAA judge found that the exceptions did not apply in this case: the exception in s. 36(4)(a) did not apply because the legal proceedings here were under the CCAA and not under the ICA; the exception in s. 36(4)(b) did not apply because the Minister’s delegate’s opinion was unfavourable to disclosure; and the exception in s. 36(4)(d) did not apply because USSC’s reference to the Settlement Agreement in its application for CCAA protection did not constitute express or implied authorization by USSC or USS to disclosure of the information. [37] The CCAA judge declined to exercise the authority granted to the court under s. 11 of the CCAA to order disclosure, on the grounds that the court could not override the operation of the ICA statutory scheme. [38] Given his conclusion that the regime in s. 36 of the ICA applied, the CCAA judge declined to address the appellants’ submission that, if the Settlement Agreement, or at least the undertakings contained in it, were not governed by s. 36 of the ICA, the common law settlement privilege was displaced by the public interest in disclosure. V ISSUES [39] This appeal raises the following issues: 1. Did the CCAA judge err in concluding that “information” in s. 36 of the ICA includes “undertakings” given in enforcement proceedings? 2. Did the CCAA judge err in concluding that none of the exceptions to the privilege regime in the ICA applies? 3. If the CCAA judge erred in concluding that the Settlement Agreement is privileged under the ICA, should this court determine whether disclosure of all or part of the Settlement Agreement is barred by common law settlement privilege? VI ANALYSIS (1) Did the CCAA judge err in concluding that “information” in s. 36 of the ICA includes “undertakings” given in enforcement proceedings? [40] The appellants submit that the undertakings in the Settlement Agreement are not privileged under s. 36 of the ICA. They argue that s. 36(1) only protects information obtained by the Minister for the purpose of determining whether or not to approve a proposed investment, and has no application to the Settlement Agreement, which arose out of a settlement of post-acquisition litigation. [41] The appellants further argue that the CCAA judge erred in conflating “information” and “undertaking” for the purposes of s. 36 of the ICA, since “information” and “undertaking” are used as discrete terms throughout the ICA, including in s. 36(4)(b). They say that an undertaking is not a contractual obligation and a “statement of fact”; it is simply a promise. They cite Kitchenham v. AXA Insurance (Canada), 2008 ONCA 877, 94 O.R. (3d) 276, at para. 26, where this court defined an undertaking as follows: “[a]n undertaking is a promise given by one party to another party to the lawsuit in exchange for obtaining something from that party.” [42] I reject the appellants’ arguments, and find that the CCAA judge did not err in concluding that the privilege in s. 36(1) attaches to information obtained by the Minister in connection with the enforcement of the ICA and that undertakings contained in the Settlement Agreement are “information” for the purposes of s. 36. [43] The appellants’ first argument regarding the scope of s. 36(1) is largely underpinned by the observation of Prothonotary Milczynski in Canada (Attorney General) v. United States Steel Corp., 2009 CarswellNat 5932 (Fed. T.D.), at para. 16, that “[i]nformation is provided to the Minister of Industry and Investment Canada under various provisions of the [ICA] for the purposes of allowing the Minister to determine whether or not a proposed investment is ‘likely to be of net benefit to Canada’”. However, that observation does not purport to be a comprehensive legal determination of the scope of s. 36(1) of the ICA. In my view, interpreting s. 36(1) to provide that the privilege only attaches to information obtained by the Minister for the purpose of determining whether or not to approve an investment ignores the words “in the course of the … enforcement of this Act”. [44] As for the appellants’ second argument, despite the use of “information” and “undertaking” as discrete terms in Part IV of the ICA, I agree with the CCAA judge’s conclusion that, in s. 36 in Part VI of the ICA, Parliament intended “information” to include undertakings set out in a document given to the Minister. [45] This issue has long been settled. As the respondents submit, Hamilton v. Canada (Attorney General) (1984), 28 B.L.R. 92 (Fed. T.D.) determined over 30 years ago that undertakings provided by a non-Canadian constituted “information” for the purpose of s. 14(1) of the Foreign Investment Review Act, S.C. 1973-74, c. 46, as amended (“FIRA”). FIRA was the predecessor to the ICA, and s. 14 of FIRA was the equivalent of s. 36 of the ICA. Section 14(1) of FIRA provided that “all information with respect to a person, business or proposed business obtained by the Minister … in the course of the administration of this Act is privileged”. Like s. 36(4)(b) of the ICA, s. 14(4)(c) excepted from the privilege regime “information contained in any written undertaking”. Section 14(4) also provided for an “exception to the exception”, similar to that contained in s. 36(5) of the ICA, pursuant to which the Minister did not have to disclose any information referred to in s. 14(4)(c) where the disclosure was not necessary for any purpose relating to the administration or enforcement of the Act and would prejudicially affect the person who gave the undertaking. And, like the ICA, in other sections of FIRA, “information” and “undertakings” were used as discrete terms.[5] In the face of Hamilton, Parliament did not adopt different language in enacting the ICA or amend the ICA to make clear that undertakings are not subject to the privilege regime in s. 36. [46] In the course of debating Bill C-15[6], which was ultimately enacted as the ICA and replaced FIRA, opposition members criticized the “secrecy” inherent in the investment review process under FIRA and moved to amend the Bill to provide for greater public access to information under the ICA. They noted that, without further amendment, the ICA would suffer from the same problems that existed under FIRA: for example, see House of Commons Debates, 33rd Parl., 1st Sess., Vol. 3 (1 May 1985), at 4298, 4305 and 4313 (Hon. Vic Althouse, Hon. Jim Manly and Hon. Nelson A. Riis) (“ICA Debates”). [47] Several of the proposed amendments would have required the Minister, under the ICA, to make public all undertakings given by the investor once it was determined that the proposed investment would be of net benefit to Canada: ICA Debates, at 4242. The legislature ultimately voted to defeat the amendments: ICA Debates, at 4313. This demonstrates the legislature’s intention to continue the privilege scheme that extended to undertakings under FIRA, such that undertakings would be confidential unless an exception applied. [48] I disagree with the appellants that s. 36(4)(b) (“information contained in any written undertaking”) makes it clear that “information” and “undertaking” are different and that undertakings set out in a document given to the Minister are therefore not “information” for the purpose of s. 36. The appellants’ interpretation of s. 36(4)(b) would distinguish between what they would characterize as the bare promise made to the Minister and information contained in the promise – the written undertaking – to the Minister. The appellants would permit USS to assert privilege over the information contained in the written undertaking, but not over the “bare promise” itself. They would require USS to parse each written undertaking to sever what they would characterize as the bare promise provided to the Minister from any information contained in the written undertaking. Where is the line between “information” and “bare promise”? And without the information contained in the written undertaking, would disclosure of the bare promise be meaningful? In my view, the appellants’ interpretation of s. 36(4)(b) does not bear scrutiny. [49] As I discuss below, I agree with the CCAA judge that “written undertaking” in s. 36(4)(b) defines the location of the privileged information and does not define the scope of “information” for the purposes of s. 36. Section 36(4)(b) therefore does not make it clear that undertakings are not information for the purposes of s. 36. [50] However, because I conclude below that the exception to the privilege regime in s. 36(4)(b) applies to USSC and USS, such that they are not prohibited from disclosing the Settlement Agreement, the result of this appeal does not turn on whether “information” in s. 36 includes “undertakings”. (2) Did the CCAA judge err in concluding that none of the exceptions to the privilege regime in the ICA applies? [51] In my view, the CCAA judge correctly concluded that the exceptions in ss. 36(4)(a) and (d) do not apply. However, I agree with the appellants that the effect of s. 36(4)(b) is that USSC and USS are not prohibited from disclosing the Settlement Agreement. (a) Section 36(4)(a) [52] Section 36(4)(a) provides that disclosure of “information for the purposes of legal proceedings relating to the administration or enforcement of [the ICA]” is not prohibited by s. 36. [53] The appellants submit that the current CCAA proceeding and the earlier ICA enforcement proceeding that led to the Settlement Agreement are related and, accordingly, disclosure of the Settlement Agreement for the purposes of the CCAA proceeding constitutes disclosure of “information for the purposes of legal proceedings relating to the administration or enforcement of [the ICA]”. They argue that the CCAA judge failed to consider that the words “relating to” are words of the widest possible meaning, as interpreted in Slattery (Trustee of) v. Slattery, [1993] 3 S.C.R. 430, at pp. 445-446, and that his interpretation of the exception in s. 36(4)(a) was erroneously narrow. [54] I reject this argument. I agree with the CCAA judge that s. 36(4)(a) does not apply in these circumstances. Here, disclosure of the information is sought by the appellants for the purposes of the current proceedings under the CCAA. It is not sought for legal proceedings relating to the enforcement of the ICA, and it is not sought by the Minister, who is the party charged with the administration and enforcement of the ICA. Indeed, the Minister has stated his opinion that disclosure of the information was not necessary for any purpose relating to the administration or enforcement of the ICA. [55] This case is very different from Slattery. In Slattery, Revenue Canada sought to collect income tax owing by Mr. Slattery. After conducting a lengthy investigation into his affairs, it petitioned Mr. Slattery (“the bankrupt”) into bankruptcy in order to collect the income tax owing. The trustee in bankruptcy then commenced civil proceedings against the bankrupt’s wife, seeking a declaration that certain assets held in her name were, in reality, property of the bankrupt's estate. The trustee sought to introduce testimony from Revenue Canada officials involved in the earlier investigation of the bankrupt’s affairs. Counsel for Mrs. Slattery objected on the ground that such testimony was statutorily barred in accordance with s. 241 of the Income Tax Act, R.S.C. 1952, c. 148, as amended by S.C. 1970-71-72, c. 63 (the “Income Tax Act”), which prohibited Revenue Canada officials from disclosing information obtained from a taxpayer for the purposes of that Act. The trial judge held that the testimony was not barred due to an exception under the Income Tax Act stating that the prohibition did not apply “in respect of proceedings relating to the administration or enforcement of [the Income Tax Act]”. [56] On appeal, the Supreme Court of Canada held that disclosure of the information obtained by Revenue Canada during its investigation for the purposes of the trustee’s bankruptcy action was permissible because the bankruptcy proceedings could be clearly characterized as “relating to” the enforcement of the Income Tax Act. [57] Characterizing the bankruptcy proceedings as "proceedings relating to the ... enforcement of" the Income Tax Act made sense in Slattery. Revenue Canada was the party who petitioned the taxpayer into bankruptcy, it was actively involved in the bankruptcy proceedings, and the tax officials and the bankruptcy trustee were collaborating. Revenue Canada was entitled to volunteer to disclose the disputed (otherwise confidential) information in order to enforce the Income Tax Act. [58] Unlike this case, the two sets of proceedings in Slattery were interrelated. Here, they are not. Other than the privilege issue, the Minister has no interest in the CCAA proceedings. [59] Section 36(4)(a) therefore does not permit the appellants to obtain disclosure of any information contained in the Settlement Agreement. (b) Section 36(4)(b) [60] Section 36(4)(b) provides that s. 36 does not prohibit disclosure of: (b) information contained in any written undertaking given to her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada. [Emphasis added.] [61] As discussed earlier, the AGC has invoked s. 36(5) and is therefore not required to disclose any information referred to in s. 36(4)(b). I agree with the CCAA judge that, as a result of invoking s. 36(5), the AGC cannot be required to disclose the Settlement Agreement. This conclusion is supported on two bases. [62] First, I agree with the CCAA judge that, in this case, “written undertaking” in s. 36(4)(b) means the Settlement Agreement. The information “referred to” in s. 36(4)(b) is therefore the information contained in the Settlement Agreement and, as a result of invoking s. 36(5), the AGC cannot be required to disclose any of that information. [63] As I have outlined above, the CCAA judge held that the structure of s. 36 required that “written undertaking” in s. 36(4)(b) be treated as a reference to a document containing one or more undertakings, rather than the promises themselves contained in the document. As he noted, “containing” is used in s. 36(2) in reference to information in a written document. “Contained” is also used in s. 36(4)(b). Here, the document containing the undertakings is the Settlement Agreement. The CCAA judge accordingly equated “written undertaking” in s. 36(4)(b) to the Settlement Agreement. Therefore, in his view, the information “referred to” in s. 36(4)(b) is all the information contained in the Settlement Agreement. [64] The respondents do not appear to challenge that conclusion, at least on the facts of this case. In her April 17, 2015 letter to the parties invoking s. 36(5), Jennifer Aitken, Director General of the Investment Review Division of Industry Canada, took the position that “disclosure of any information relating to written undertakings may not be required” where, in the opinion of the Minister’s designate, the communication or disclosure of that information is not necessary for any purpose relating to the administration or enforcement of the ICA and it would prejudicially affect the non-Canadian that gave the written undertaking in the conduct of its business affairs. She advised that the Director of Investments, appointed by the Minister pursuant to s. 6 of the ICA, had reviewed the Settlement Agreement and other documents and come to the conclusion that disclosure of the Settlement Agreement “is not necessary for any purpose relating to the administration or enforcement of the ICA and that the disclosure of it to persons other than the Monitor and the Monitor’s legal counsel in the CCAA proceedings would prejudicially affect the conduct of the business affairs of USS.” The Minister has apparently concluded that the Settlement Agreement consists of “information relating to written undertakings”. [65] I agree with the CCAA judge that “written undertaking” in s. 36(4)(b) defines the location of the information. And I agree that where, as is apparently the case here, the document consists of the undertakings given to the Minister and information relating to those undertakings, the document itself constitutes the “written undertaking” for the purpose of s. 36(4)(b). I also suspect that in most cases information contained in the document would consist of undertakings given to the Minister and information related to those undertakings. I need not determine whether “written undertaking” in s. 36(4)(b) also includes a document that contains undertakings given to the Minister, information related to those undertakings and information unrelated to those undertakings, or whether, in such a case, “written undertaking” in s. 36(4)(b) means only those parts of the document containing the undertakings and information related to those undertakings. [66] Second, under s. 36(2), the Minister cannot be required “to produce any statement or other writing containing [information described in s. 36(1)]”. There is no doubt that the Settlement Agreement contains information described in s. 36(1). Section 36(4)(b) provides an exception with respect to “information contained in any written undertaking given to…”. By invoking s. 36(5), the exception in s. 36(4)(b) is of no effect with respect to the Minister. Therefore, s. 36(2) applies and the Minister cannot be required to produce the Settlement Agreement, which is a “writing containing [information described in s. 36(1)]”. [67] The remaining question is whether, because the AGC has invoked s. 36(5), USSC and USS cannot be required to disclose any information contained in the Settlement Agreement. On appeal, the appellants argue that the answer to this question is no. They say that USSC and USS can be required to disclose information contained in the Settlement Agreement under s. 36(4)(b), even though the AGC has invoked s. 36(5), because s. 36(5) only protects the Minister or other government employees or officers from being forced to disclose information. They would therefore restrict the application of s. 36(5) to the parties named therein. The appellants did not make this argument before the CCAA judge. Because this appeal deals with the proper interpretation of the ICA, and s. 36 specifically, I am persuaded that this court should address this question. [68] In my view, the exception to the exception in s. 36(4)(b), created by s. 36(5), does not apply to USSC and USS. Therefore, if not protected by common law settlement privilege, and absent a sealing order, USSC and USS can be required to disclose information contained in the Settlement Agreement. [69] This is clear from the wording of s. 36(5), which provides that “[n]o minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province may be required …”. In contrast, s. 36(1) provides that “no one shall knowingly communicate …”. If Parliament had intended to extend the “exception to the exception” in s. 36(5) to a broader category of persons than those listed, it could have used broad language, similar to that employed in s. 36(1). [70] I reject USS’s argument that Camco Inc., Re. (1983), 22 B.L.R. 1 (Ont. H.C.) supports its position that s. 36(5) also excepts the supplier of the information. In the course of a disputed application for the liquidation and dissolution of Camco under corporate legislation, disclosure was sought from Canadian General Electric (“CGE”) of documents it had filed in support of its earlier application to the Foreign Investment Review Agency (the “Agency”) to acquire Camco. Callaghan J. held that the supplier of the information, and not just the Minister, was entitled to the benefit of the statutory privilege created by s. 14(1) of FIRA. As discussed above, s. 14(1) provided that: [A]ll information with respect to a … business obtained by the Minister … is privileged and no person shall knowingly … communicate or allow to be communicated to any person not legally entitled thereto any such information. [Emphasis added.] [71] Accordingly, CGE was not required to disclose the documents it had filed with the Agency. At issue in Camco was the scope of the term “no person”. The court in Camco did not hold that the words “no minister of the Crown and no officer or employee of Her Majesty” include the person who supplied the information. Instead, it held that the language of s. 14(1) and specifically the term “no person” – which is much broader than the wording in s. 36(5) of the ICA and its equivalent under FIRA in s. 14(4) – clearly applied to the supplier of the information. [72] I also reject USS’s argument that restricting s. 36(5) to the persons specifically named therein renders the section meaningless. Doing so provides an “exception to the exception” for the persons named therein. It also ensures that the information cannot be obtained from the Minister under the ATIA. As the appellants have argued, it was (and is still) open to USS to seek a sealing order to protect the confidentiality of the Settlement Agreement in the CCAA proceeding in accordance with the test in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, as was done in Canada (Attorney General) v. United States Steel Corp. Such orders have been granted in CCAA proceedings to protect privileged materials: Hollinger Inc. (Re), 2011 ONCA 579, 107 O.R. (3d) 1, at paras. 19-23, leave to appeal refused, [2011] S.C.C.A. No. 473. (c) Section 36(4)(d) [73] Section 36(4)(d) states that disclosure of the following is not prohibited: (d) information the communication or disclosure of which has been authorized in writing by the Canadian or the non-Canadian to which the information relates. [74] I agree with the CCAA judge that, by referring to the Settlement Agreement in the affidavit it filed in support of its CCAA application, USSC did not authorize in writing the disclosure of the Settlement Agreement. USSC specifically asserted that the confidentiality of the Settlement Agreement was protected both by the terms of the agreement and s. 36 of the ICA. I make no determination as to whether USSC waived its common law settlement privilege by referring to the Settlement Agreement in the affidavit. [75] Accordingly, the final question is whether, although not protected in the hands of USSC and USS by s. 36, the Settlement Agreement is protected by the common law settlement privilege. (3) If the CCAA judge erred in concluding that the Settlement Agreement is privileged under the ICA, should this court determine whether disclosure of all or part of the Settlement Agreement is barred by common law settlement privilege? [76] The Supreme Court highlighted the importance of settlement privilege in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623. As Abella J., writing for the court, states at para. 12, “[s]ettlement privilege promotes settlements”. Promoting settlement contributes to the effective administration of justice. While the settlement privilege creates a presumption of inadmissibility with respect to settlement negotiations, exceptions to the privilege will be found “when the justice of the case requires it”. The party seeking to override the settlement privilege must show that there is a competing public interest that outweighs the public interest in securing settlement. [77] The appellants submit that, if s. 36 of the ICA does not prohibit disclosure of the Settlement Agreement or the undertakings contained therein, this court should determine whether disclosure is barred by the common law settlement privilege, rather than sending the matter back to the CCAA judge. [78] The appellants argue that they have demonstrated a competing public interest in favour of disclosure that outweighs the public interest in encouraging settlement. They say that if USS has obligations to USSC under the Settlement Agreement, USS’s very significant claim in the CCAA proceeding could be subject to set-off. They also emphasize that they represent employees and retirees affected by the CCAA proceeding. They say they are entitled to know whether or not USS has obligations to USSC under the Settlement Agreement, how those obligations impact the current restructuring negotiations, and whether USS is in breach of any obligations to USSC. [79] The respondents submit that this court should return the issue of whether production of the Settlement Agreement and its contents is barred by common law settlement privilege to the CCAA judge for determination. However, they argue that, in any event, this question should be answered in the affirmative. They say that substantial disclosure of the undertakings was made in a press release at the time of the settlement in 2011 and, further, that the undertakings were made to the Minister and are not for the appellants to enforce. USSC notes that there is no evidence that production of further details of the Settlement Agreement will impact the CCAA claims process. Their position is reinforced, they submit, because the Monitor has a copy of the Settlement Agreement and has not argued that it should be disclosed to the appellants. [80] Neither this court nor the CCAA judge was provided with a copy of the Settlement Agreement. In my view, it may be necessary to review the Settlement Agreement to evaluate the appellants’ argument that, in these circumstances, there is a competing public interest in disclosure that outweighs the public interest in settlement. [81] I would therefore return the issue of settlement privilege to the CCAA judge for determination in the exercise of his discretion in the CCAA proceeding. [82] I would direct the Monitor to disclose the Settlement Agreement to the CCAA judge so that he may review it and, if advisable, entertain further submissions by the parties before determining this issue. VII DISPOSITION [83] I conclude that s. 36 of the ICA does not prohibit USSC and USS from disclosing the Settlement Agreement and I would accordingly allow the appeal. I would return the issue of whether disclosure of the Settlement Agreement is barred by common law settlement privilege to the CCAA judge for determination in the exercise of his discretion in the CCAA proceeding. Released: “AH” “JAN 26 2016” “Alexandra Hoy A.C.J.O.” “I agree R.A. Blair J.A.” “I agree P. Lauwers J.A.” SCHEDULE “A” Investment Canada Act, R.S.C., 1985, c. 28 (1st Supp.) … Purpose of Act 2. Recognizing that increased capital and technology benefits Canada, and recognizing the importance of protecting national security, the purposes of this Act are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security. … Matters to be referred to Minister 19. (1) The Director shall refer to the Minister, for the purposes of section 21, any of the following material received by the Director in the course of the review of an investment under this Part: (a) the information contained in the application filed under section 17 and any other information submitted by the applicant; (b) any information submitted to the Director by the person or entity from whom or which control of the Canadian business is being or has been acquired; (c) any written undertakings to Her Majesty in right of Canada given by the applicant; and (d) any representations submitted to the Director by a province that is likely to be significantly affected by the investment. … Privileged information 36. (1) Subject to subsections (3) to (4), all information obtained with respect to a Canadian, a non-Canadian, a business or an entity referred to in paragraph 25.1(c) by the Minister or an officer or employee of Her Majesty in the course of the administration or enforcement of this Act is privileged and no one shall knowingly communicate or allow to be communicated any such information or allow anyone to inspect or to have access to any such information. Evidentiary privilege (2) Notwithstanding any other Act or law but subject to subsections (3) and (4), no minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province shall be required, in connection with any legal proceedings, to give evidence relating to any information that is privileged under subsection (1) or to produce any statement or other writing containing such information. Communication or disclosure of information (3) Information that is privileged under subsection (1) may, on such terms and conditions and under such circumstances as the Minister deems appropriate, (a) on request in writing to the Director by or on behalf of the Canadian or non-Canadian to which the information relates, be communicated or disclosed to any person or authority named in the request; or (b) for any purpose relating to the administration or enforcement of this Act, be communicated or disclosed to a minister of the Crown in right of Canada or a province or to an officer or employee of Her Majesty in right of Canada or a province. … Exceptions (4) Nothing in this section prohibits the communication or disclosure of (a) information for the purposes of legal proceedings relating to the administration or enforcement of this Act; (b) information contained in any written undertaking given to Her Majesty in right of Canada relating to an investment that the Minister is satisfied or is deemed to be satisfied is likely to be of net benefit to Canada; (c) information to which the public has access; (d) information the communication or disclosure of which has been authorized in writing by the Canadian or the non-Canadian to which the information relates; … (f) information to which a person is otherwise legally entitled; … Non-disclosure (5) No minister of the Crown and no officer or employee of Her Majesty in right of Canada or a province may be required, in connection with any legal proceedings or otherwise, to give evidence relating to or otherwise to communicate or disclose any information referred to in paragraph (4)(b) where, in the opinion of the Minister or a person designated by the Minister, the communication or disclosure of that information is not necessary for any purpose relating to the administration or enforcement of this Act and would prejudicially affect the non-Canadian that gave the written undertaking referred to in that paragraph in the conduct of the business affairs of that non-Canadian. [1] R.S.C. 1985, c. 28 (1st Supp.). [2] Now the Minister of Innovation, Science, and Economic Development. [3] R.S.C., 1985, c. C-36. [4] Now Innovation, Science and Economic Development Canada. [5] See, for example, ss. 9, 10 and 11 of FIRA. Section 9 required the Minister to review any information contained in the notice of proposed acquisition of control or establishment of a new business, any other information submitted, any written undertakings given and any representations submitted by a province likely to be affected by the investment. Section 10 referred to a summary of “the information and written undertakings”. Section 11 similarly referred to “information … and any written undertakings”. [6] Bill C-15, An Act respecting Investment in Canada, 1st Sess., 33rd Parl., 1984-1985.