Fuller v. Nova Scotia

Fuller v. Nova Scotia Court Supreme Court Date 2004-04-27 Citation 2004 NSSC 86 Docket SH 184729 A Judge/Registrar/Adjudicator Pickup, Arthur W. D. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fuller v. Nova Scotia, 2004 NSSC 86 Date: 20040427 Docket: S.H. No. 184729A Registry: Halifax Between: Shawn Fuller Appellant v. Her Majesty the Queen In Right of Nova Scotia, as represented by Robert A. MacKay, Chief Executive Officer of the Officer of Economic Development Respondent v. Sobeys Group Inc. Third Party Judge: The Honourable Justice Arthur W.D. Pickup Heard: February 24, 2004, in Halifax, Nova Scotia Decision: April 27, 2004 Counsel: Graham J. Steele, for the Appellant Edward A. Gores, for the Respondent David P.S. Farrar and Kendrick H. Douglas, for the Third Party Pickup, J.: [1] The Province of Nova Scotia provided Sobeys Group Inc. with a performance-based incentive in the form of a payroll rebate. The Province offered these payroll rebates to attract new businesses to the Province and to help grow existing businesses in the Province. [2] The Appellant, Shawn Fuller, the Manager of Research for the NDP Caucus applied under the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c.5 (“Act”) for all records relating to this payroll rebate granted to the Third Party from “August 2001 to present.” [3] The Province released partially edited versions of the following documents: 1. A Management Representation Letter dated October 5, 2001. 2. A letter to Nova Scotia Business Development Corporation (NSBDC) from the Third Party dated October 11, 2001. 3. A letter dated November 5, 2001 from Marvyn Robar an employee of The Office of Economic Development to the Third Party. 4. Notes to file dated November 5, 2001 prepared by Marvyn Robar. Two documents were withheld in their entirety: (1) A single page Auditor’s Report; (2) A single page Schedule of Head Office Incremental and Gross Payrolls of the Third Party. [4] On May 13, 2002, Mr. Fuller requested that the Review Officer appointed pursuant to the FOIPOP Act review this decision by the Province to withhold part of the record. The report of the Review Officer was made July 19, 2002 recommending further disclosure. By letter of August 6, 2002 the Province disclosed further information contained in the Notes To File and in the Management Representation Letter, but did not accept any of the other recommendations as to disclosure. [5] The Appeal to this Court was filed by Mr. Fuller on August 20, 2002 seeking the disclosure of the remaining undisclosed portions of these documents. [6] The issues to be determined are: 1. Has the Province established on the evidence that the edited withheld portion of the record contained “advice or recommendations” developed by or for a public body or a Minister (s.14(1)-FOIPOP Act)? 2. Is releasing the name and the title of the Third Party official corresponding with the Province an unreasonable invasion of personal privacy and therefore exempt from disclosure pursuant to s. 20 of the FOIPOP Act? 3. Has the Province established that the withheld documents under s. 21(1) are properly exempt as commercial and financial information of the Third Party which were supplied in confidence? STATUTORY REGIME [7] This Court has broad powers under s. 42 of the FOIPOP Act and may determine the appeal de novo. Under s. 45(1) the burden of proof is on the Province to satisfy the Court a record falls within the exemption claimed under s.14 and s. 20(1). The burden is on the Appellant in respect of s. 21(1) pursuant to s. 45(2) of the FOIPOP Act. [8] The standard of proof is on a balance of probabilities. [9] Before turning to an analysis as to whether or not these exemptions apply, it is appropriate to highlight the unique provisions of the Nova Scotia Act. [10] In O’Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2002), 197 N.S.R. (2d) 154, Saunders, J.A. for the Court of Appeal commented: [40] Thus, it seems clear to me that the Legislature has imposed a positive obligation upon public bodies to accommodate the public’s right of access and, subject to limited exception, to disclose all government information so that public participation in the workings of government will be informed, that government decision making will be fair, and that divergent views will be heard. [41] The FOIPOP Act ought to be interpreted liberally so as to give clear expression to the Legislature’s intention that such positive obligations would enure to the benefit of good government and its citizens. ... [56] Thus the FOIPOP Act in Nova Scotia is the only statute in Canada declaring as its purpose an obligation both to ensure that public bodies are fully accountable and to provide for the disclosure of all government information subject only to “necessary exemptions that are limited and specific”. [57] I conclude that the legislation in Nova Scotia is deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada, Nova Scotia’s lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation; ensure fairness in government decision making; and permit the airing and reconciliation of divergent views. No other province or territory has gone so far in expressing such objectives. [11] The Act provides for a general right of access “to any record in the custody or under the control of a public body” but this right does not extend to “information exempted from disclosure pursuant to [the] Act; ss. 5(1) and (2)”. 5(1) A person has a right of access to any record in the custody or under the control of a public body upon complying with section 6. (2) The right of access to a record does not extend to information exempted from disclosure pursuant to this Act, but if that information can reasonably be severed from the record an applicant has the right of access to the remainder of the record. [12] I now turn to a determination of the applicability of the exemptions claimed by the Province to deny access to the withheld portion of these documents. 1. ANALYSIS - s. 14(1) [13] The province argues: (a) That the Auditor’s Report and the Schedule of Head Office Incremental and Gross Payrolls contain “advice” to the Province. (b) That paragraphs A.2 and B.4 of the October 5, 2001 Management Representation Letter are “advice” on the Third Party’s commercial and financial status. (c) That the withheld portions of Marvyn Robar’s November 5, 2001 Notes To File are exempt from disclosure because they reflect information taken from (a) and (b) above and to disclose these notes would have the effect of disclosing the edited withheld material in the documents in (a) and (b). [14] The Third Party made submissions at the hearing supporting the Respondent and submitting that the withholding of the record by the Respondent pursuant to s.14(1) of the Act is justified under the circumstances. [15] The Province argues that all of the information and/or advice provided by the Third Party (Management Representation Letter), its auditors (Auditor’s Report and Schedule) or Mr. Robar (Notes To File) was developed by or for the Province and directed to assisting the Province to decide on a course of action respecting the payment of the payroll rebate amount. [16] Section 14(1) of the Act is as follows: 14(1) The head of a public body may refuse to disclose to an applicant information that would reveal advice, recommendations or draft regulations developed by or for a public body or a minister. (2) The head of a public body shall not refuse pursuant to subsection (1) to disclose background information used by the public body. [17] The intent of s. 14 is to exempt from disclosure “advice ... developed by or for a public body or for a minister.” The question then is whether the withheld portion of the record in this case is “advice” developed by or for a public body or minister. [18] If the withheld portion of the record falls within this definition then it is exempt from disclosure. On the other hand, if the information is not “advice” within the meaning of s. 14(1) the withheld information is not exempt from disclosure and must be disclosed. Further, if the withheld information is deemed “background information” it is not exempt from disclosure pursuant to s. 14(2) of the Act and must be disclosed. [19] The Auditor’s Report was provided by the Third Party and is an opinion by its auditors on the financial information provided by the Third Party as part of the audit process. The auditors provided advice to the government through Mr. Robar. The Auditor’s Report was addressed and directed to the Minister of Economic Development. The information provided by the auditors verifies the financial information contained in the Schedule of Head Office Incremental and Gross Payrolls. This opinion by the auditors was verification of the Third Party’s compliance with the Province’s payroll rebate program and was part of the information prepared for the Province to enable it to make its decision on whether or not to release funds to the Third Party. This document would be a key component of the deliberative process that the public body undertook in deciding whether or not to grant the payroll rebate. The rebate would not be granted until this information was received and verified by the Province. In this case, that information was reviewed by Mr. Robar on behalf of the Province. [20] The Auditor’s Report is exempt from disclosure under s. 14(1) of the Act. [21] The same considerations do not apply to the Schedule of Head Office Incremental and Gross Payrolls. [22] Given the factual nature of the withheld information in this “Schedule” attached to the Auditor’s Report, it would fall within the “background information” exemption in s. 3(1)(a)(i): 3(1) In this Act, (a) “background information” means (i) any factual material, [23] The Auditor’s Report is a statement of the terms under which the audit was prepared for the Third Party and comments on the accuracy of the payroll information provided by the Third Party. The Schedule sets out factually payroll information for the year ending April 30, 2002 as provided by the Third Party. This material is background information of a factual nature and therefore not exempt from disclosure under s. 14(1) of the Act. [24] Paragraphs A.2 and B.4 of the October 5, 2001 Management Representation Letter contain information provided to its auditors by the Third Party as part of the information required to qualify under the provincial program and information needed by the auditors to complete the Auditor’s Report. This information is not “advice”within the meaning of s. 14(1), and therefore not exempt from disclosure. The information is background information and therefore not exempt from disclosure. Unlike the Auditor’s Report it is not addressed to the Minister but to its auditors and provides factual verification of the accuracy of the financial information provided to its auditors. [25] Marvyn Robar’s Notes To File were edited to reflect information contained in the Auditor’s Report and the attached Schedule. This information is similar to what was contained in the Schedule to the Auditor’s Report and is background information within the meaning of s. 3(1)(a)(i) and is not exempt from disclosure. The information contained in the Notes To File represents a summary of background financial information contained in the Schedule. 2. SECTION 20 - PERSONAL PRIVACY [26] The Province relied upon s. 20 of the FOIPOP Act as authority to sever the name and title of the Third Party’s officials sending and receiving correspondence. In particular, the Province does not wish to disclose the name and title of the Third Party’s official who signed a letter to Nova Scotia Business Development Corporation dated October 11, 2001, officials who signed the Management Representation Letter of October 5, 2001 and the official to whom Marvyn Robar wrote a letter of November 5, 2001. The Third Party supports the Province in its reliance upon s. 20 of the Act in editing the names of persons employed by the Third Party as well as information identifying the title of the individuals within the organization. [27] The Province submits to disclose these names would be an unreasonable invasion of privacy and that disclosure is not necessary or desirable for the purpose of subjecting the activities of the government of Nova Scotia to public scrutiny. [28] Section 20(1) of the Act provides for a mandatory exemption from disclosure of personal information: 20(1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy. [29] Section 3(1)(i) defines “personal information” as follows: (i) “personal information” means recorded information about an identifiable individual, including (i) the individual’s name, address or telephone number, ... (iv) an identifying number, symbol or other particular assigned to the individual, ... (vii) information about the individual’s educational, financial, criminal or employment history, [30] The Province and the Third Party argue that the names and titles of the individuals named in the correspondence from the Third Party are exempt under s. 3(1)(i). They submit the correspondence contain the corporate individual’s names and therefore are exempt from disclosure under 3(1)(i)(i). They also argue the information is exempt under ss. 3(1)(i)(vii) because their corporate names and title would be part of their “employment history”. [31] Mr. Fuller argues that the individual names edited out of the letters before me were of corporate officers acting in their official capacity and as such would not have a reasonable expectation of privacy. [32] In Cyril House and 144900 Canada Inc., unreported (April 20, 2000 S.H. No. 160555) Justice Moir set out a useful analysis to be used in considering the applicability of s. 20. He considered the appeal in the following way (at page 4): 1. Is the requested information “personal information” within s. 3(1)(i)? If not, that is the end. Otherwise, I must go on. 2. Are any of the conditions of s. 20(4) satisfied? If so, that is the end. Otherwise... 3. Is the personal information presumed to be an unreasonable invasion of privacy pursuant to s. 20(3)? 4. In light of any s. 20(3) presumption, and in light of the burden upon the appellant established by s. 45(2), does the balancing of all relevant circumstances, including those listed in s. 20(2), lead to the conclusion that disclosure would constitute an unreasonable invasion of privacy or not? [33] Turning to the first part of the test I find that the requested information is “personal information” within the meaning of s. 3(1)(i)(i) and (vii). The information sought is to determine the names and title of the Third Party’s employees who signed correspondence on behalf of the Third Party. The names of the individuals would fall within 3(1)(i)(i) and their corporate title would fall within “employment history” within s. 3(1)(i)(vii). In my view this is clearly “personal information” within the meaning of s. 3(1)(i). The withheld record identifies the names and title of the individuals who signed the letter of October 11, 2001, the Management Representation Letter of October 5, 2001 and to whom correspondence was directed by Marvyn Robar in his letter of November 5, 2001. [34] Are any of the conditions of s. 20(4) of the FOIPOP Act satisfied? Mr. Fuller suggests that s. 20(4)(i) is applicable and the release of this personal information is not an unreasonable invasion of the Third Party’s personal privacy. [35] Section 20(4)(i) is as follows: A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if ... (i) the disclosure reveals details of a discretionary benefit of a financial nature granted to the third party by a public body, not including personal information that is supplied in support of the request for the benefit or is referred in clause (c) of subsection (3). [36] While s. 20(4)(i) directs that details of a discretionary financial benefit should generally be released, I note the proviso “not including personal information that is supplied in support of the request for the benefit”. The names and title of the Third Party’s employees would in my view fall within this provision. [37] The next question is whether the personal information is presumed to be an unreasonable invasion of privacy pursuant to s. 20(3). [38] The Province refers to s. 20(3)(d) and suggests this provision is a broad one in that “employment history” is meant to cover an individual’s work record and the phrase “relates to” would extend to the names of the Third Party’s employees and bring it within the section. In my view, the name and title of the officials of the Third Party “relate to” and are part of the “employment history” of the Third Party’s officials and as referred to in s. 20(3)(d) of the Act and the presumption would apply. [39] Considering the burden of proof on Mr. Fuller under s. 45(2) of the Act I find that disclosure of the name and title of these individuals would constitute an unreasonable invasion of privacy under s. 20(1). There is no evidence before me to find that s. 20(2) is of assistance to Mr. Fuller and in particular I am not persuaded that disclosure of the Third Party’s employee’s names is “desirable for the purpose of subjecting activities of the Government of Nova Scotia or a public body to public scrutiny”. [40] The names of those persons employed by the Third Party and their titles are properly withheld under s. 20 of the Act. This includes the name and title of the person signing the October 11, 2001 letter to Mr. Robar and the persons signing the Management Representation Letter of October 5, 2001 and the name of the person to whom Mr. Robar corresponded on November 5, 2001. 3. SECTION 21 - CONFIDENTIAL INFORMATION [41] The Province relies upon s. 21 of the Act to edit the Notes To File, the Management Representation Letter and to withhold two records in their entirety, the single page Auditor’s Report and Schedule of Head Office Incremental and Gross Payrolls at Sobeys. [42] Section 21 of the Act is as follows: 21 (1) The head of public body shall refuse to disclose to an applicant information (a) that would reveal (i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party; (b) that is supplied, implicitly or explicitly, in confidence; and (c) the disclosure of which could reasonably be expected to (i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party; (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person or organization, or (4) Subsections (1) and (2) do not apply if the third party consents to the disclosure. (Emphasis added) [43] In Atlantic Highways Corporation (Re), [1997] N.S.J. No. 238 (N.S.S.C.), Justice Kelly at para. 29 set out a three part test in considering the appropriateness of s. 21: (a) that disclosure of the information would reveal trade secrets or commercial, financial, labour relations, scientific or technical information of a third party; (b) that the information was supplied to the government authority in confidence, either implicitly or explicitly; and (c) that there is a reasonable expectation that the disclosure of the information would cause one of the injuries listed in 21(1)(c). [44] The burden is on the Province and/or the Third Party to satisfy this Court that the withheld record falls within this exemption. [45] What is the nature of the edited/withheld portions of the record? [46] In the Notes To File the edited portions reflect payroll information from the Third Party. [47] Paragraph A.2 of the Management Representation Letter contains payroll information whereas B.4 does not. The Auditor’s Report refers to an audit conducted on the Third Party and the Schedule of Head Office Increment and Gross Payrolls of the Third Party, as the name reflects, contains payroll information of the Third Party. [48] Marvyn Robar, in his affidavit deposes that the payroll rebate was given pursuant to an agreement with the Province that required the Third Party to provide commercial, financial and employment and technical information to be eligible for the rebate. The information required was contained in the Management Representation Letter, Auditor’s Report and Schedule of Head Office Incremental and Gross Payrolls. [49] The evidence of Mr. Robar was that at all times he considered the information contained in the documents to be confidential financial information of Sobeys. [50] Turning to the three part test in Atlantic Highways Corporation (supra) the first question is whether the disclosure of the edited and withheld record would reveal commercial and financial information of the Third Party. Mr. Fuller argues that this information is merely factual information as to the financial circumstances prevailing in the Third Party’s head office. Mr. Fuller argues that it is not commercial in the sense that it reveals anything about the Third Party’s commerce, primarily the grocery business. [51] I am satisfied that these documents fall within the provisions of s. 21(1) (a)(ii)as commercial and financial information. All of the information relates to financial information that the Province required in order to release the rebate to the Third Party. The information specifically deals with payroll information of the Third Party that it has supplied to comply with the payroll rebate program. [52] Was the information supplied in confidence? [53] In Chesal v. Attorney General of Nova Scotia, (2003) N.S.S.C. 010 Justice Coughlan considered the issue of whether something is received in confidence at paragraph 43: ...In determining whether particular information is received in confidence, the Court must consider the circumstances as a whole including the content of the information, its purposes and the purposes and conditions under which it was prepared and communicated. It is not enough that the supplier of the information states, without further evidence, that it is confidential; otherwise, a party supplying the information could ensure the information was not released. Likewise, the fact information is marked confidential is not conclusive that the information was supplied in confidence. If such was the case, the mere marking of information as “confidential” would prevent its release. [54] The only statement in Mr. Robar’s affidavit touching on the issue of confidentiality is at the end of paragraph 11, where he states This information was supplied to me by Sobeys, and I at all times considered the information contained in the documentation to be confidential financial information of Sobeys, except where any such information was contained in a publicly disclosed document such as Sobeys’ Annual Report. [55] The Third Party has objected to the release of this information. The Auditor’s Report refers to the confidential nature of the report and attached to that report is the Schedule of Head Office Incremental and Gross Payrolls of the Third Party. Mr. Robar testified that because of the very nature of the information he received from the Third Party he considered it to be confidential. The Auditor’s Report refers to information contained in the Schedule. [56] Based on the evidence before me I am satisfied that the information was supplied in confidence. I accept the evidence of Mr. Robar and also note that the Management Representation Letter was directed to the auditors and the Auditor’s Report was directed to the Province. The Management Representation Letter would have been considered in the Auditor’s Report. I am satisfied that the nature of the information would support the position of the Province and the Third Party that it is in fact information supplied in confidence. [57] Is there a reasonable expectation that the disclosure of the information would cause one of the injuries listed in 21(1) (c)? Mr. Fuller argues the last part of the test set out in s. 21(1)(c) requires that there be a reasonable expectation of significant harm to the competitive position of the Third Party or that the release of this information would significantly interfere with the Third Party’s negotiating position. Mr. Fuller suggests there is no evidence of the harm set out in s. 21(1)(c). [58] In Atlantic Highways Corporation (supra) Justice Kelly at paragraph 45 commented on the degree of harm which the Third Party is required to show: A review of the wording used in the “harm of disclosure” subsection makes it clear that the legislature seeks evidence of more than the possibility of some loss; it requires that it be shown that the information “reasonably” be expected to “harm significantly” or “interfere significantly” in subsection (i) and “result in undue financial loss” in subsection (iii). Such modifiers would seem to imply that the legislature requires a logically and rationally based threshold of “speculative proof” of “harm” or damages of some substance. [59] The Supreme Court of Canada in Lavigne v. Canada (Office of the Commissioner of Official Languages) 2002 S.C.C. 53 at paragraph 58 held that to establish a reasonable expectation of harm: ...There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged. The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure. [60] Mr. Fuller submits that the affidavit of Marvyn Robar filed by the Province fails to meet this evidentiary burden. He suggests Mr. Robar’s affidavit is the only evidence put before this Court to support non-disclosure. [61] The Province and the Third Party asked the court to infer that the release of this information could reasonably be expected to harm the competitive position of the Third Party. The Province and Third Party suggest that the Third Party’s competitors possessed of this information would be in a position to determine the average salary of the Third Party’s employees at its Head Office and that this information could be used to recruit the Third Party’s employees. There is no direct evidence before me to support this contention. [62] There is no evidence given by anyone employed by or representing the Third Party. The only evidence before this court is the affidavit and testimony of Marvyn Robar. Mr. Robar would not have the necessary corporate knowledge to bring the Province’s and Third Party’s position within s. 21(1)(c). [63] Considering the above factors I find that the exemption under s. 21 is not available to the Province or Third Party. CONCLUSION [64] In respect of the withheld record, I order as follows: 1. That paragraphs A.2 and B.4 of the management representation letter of October 5, 2001 be disclosed. 2. That the name and title of the individuals signing the October 11, 2001 letter to Nova Scotia Business Development Corporation (NSBDC) from the Third Party is exempt from disclosure pursuant to s. 20 of the Act. 3. That the name and title of the Sobeys’ employee in the letter of November 5, 2001 from Marvyn Robar is exempt from disclosure under s. 20 of the Act. 4. That the Notes To File dated November 5, 2001 of Marvyn Robar be disclosed. 5. That the single page Auditor’s Report is exempt from disclosure pursuant to s. 14(1) of the Act. 6. That the single page Schedule of Head Office Incremental and Gross Payrolls of the Third Party be disclosed. [65] I therefore allow the Appeal in part and order the release of the severed portions of the documents as listed. [66] Because the Respondent and/or the Third Party has the right to appeal this decision I direct that the withheld portions of the record remain sealed for a period of 30 days after my order is issued pending any further order of this court or the Court of Appeal. [67] In respect to the costs, each party shall bear its own costs. Justice Arthur W.D. Pickup