Executive Summary: Key Legal and Evidentiary Issues

• APPIM failed to meet its burden of proving that financial information in contribution agreements qualified as "confidential information supplied by a third party" under section 20(1)(b) of the Access to Information Act.

• Negotiated terms between parties do not constitute "information supplied" for purposes of the confidentiality exemption under the Act.

• Vague affidavit declarations asserting confidentiality, without corroborating documentation or specific evidence, are insufficient to establish consistent confidential treatment.

• Claims of competitive prejudice under section 20(1)(c) were rejected as speculative and hypothetical, lacking clear and direct evidence of harm.

• The contractual clause cited by APPIM (paragraph 17.15) was interpreted as authorizing public disclosure rather than restricting it.

• Commercial value of information diminishes over time, weakening claims of prejudice for agreements dating back almost fifteen and thirteen years.

Background and context of the dispute

The Association des pêcheurs propriétaires des Îles-de-la-Madeleine (APPIM) is a non-profit organization operating since 1975, representing fishers who offer numerous seafood products in the Îles-de-la-Madeleine archipelago. In October 2010 and March 2012, APPIM entered into two contribution agreements with the Department of Fisheries and Oceans (DFO) under the "Mesures de durabilité pour l'industrie du homard de l'Atlantique" (MDIHA) program, a federal initiative established in 2009 that ended in 2014 to support the development and implementation of long-term sustainability plans for lobster fishing on Canada's East Coast. These agreements funded projects including the construction of a multigenerational artificial reef, reduction of fishing traps, and adoption of electronic dashboards in lobster fishing area #22.

The access to information request and complaint

In May 2017, the Rassemblement des pêcheurs et pêcheuses des Côtes des Îles (RPPCI), a non-profit fishing organization formed in 2015 by former APPIM members following a disagreement, submitted an access to information request seeking disclosure of the contribution agreements. DFO initially redacted certain financial information under sections 19(1), 20(1)(b), 20(1)(c), and 24(1) of the Access to Information Act. RPPCI filed a complaint with the Information Commissioner, who concluded on September 1, 2022 that the complaint was well-founded and that the agreements could be published almost without redaction. When DFO indicated its intention to comply with the Commissioner's recommendations, APPIM sought judicial review in Federal Court under subsection 41(3) of the Act.

Legal framework and standard of review

The Court conducted a de novo review, meaning it decided the matter afresh rather than deferring to the Commissioner's or DFO's prior conclusions. Under section 20(1)(b), APPIM needed to demonstrate that the information was financial, commercial, scientific or technical in nature, confidential, supplied to a federal institution by a third party, and consistently treated as confidential by that third party. Under section 20(1)(c), APPIM needed to establish a reasonable expectation that disclosure would cause material financial loss or prejudice its competitive position. The burden of proof rested entirely on APPIM to establish these exemptions through convincing and precise evidence on a balance of probabilities.

Failure to establish the "supplied by a third party" requirement

The Court found that the financial figures in the agreements were negotiated terms between APPIM and DFO rather than information supplied by APPIM alone. DFO witness Ali Magassouba, who held the position of regional advisor for sustainable development for the Quebec region at DFO since 2000 and whose mandate included supervising the MDIHA program, testified that contribution amounts were determined through negotiations involving multiple methodologies that accounted for regional characteristics. APPIM's president, Mario Déraspe, participated in negotiations but provided no documentary evidence linking specific figures to information APPIM independently provided. The Court concluded that column headings bearing "APPIM" in budget tables did not corroborate the provenance of figures attributable to APPIM.

Insufficient evidence of consistent confidential treatment

APPIM argued that paragraph 17.15 of the agreements constituted a confidentiality clause. However, the Court interpreted this provision as authorizing DFO to publicly disclose the beneficiary's name, the amount of financial assistance paid by the minister, and the general nature of the project, rather than restricting disclosure. Furthermore, Mr. Déraspe's testimony revealed that detailed financial information was not shared with APPIM members not because of confidentiality concerns, but because they were "technical details" and it "wasn't necessary and wasn't requested either." APPIM failed to produce internal policies, by-laws, board minutes, financial reports, or other documentation demonstrating systematic confidential treatment of the agreement terms.

Rejection of prejudice claims

APPIM's assertions of potential harm were characterized as vague, speculative, and hypothetical. Mr. Déraspe expressed general "fears" and "risks" without substantiation. The organization could not explain how disclosure of financial arrangements from agreements signed almost fifteen and thirteen years earlier would damage its competitive position, particularly since the MDIHA program ended in 2014 with no similar programs established since. Mr. Déraspe admitted having no current projects with DFO and not planning any in the future. The Court noted, citing Bombardier, that common sense dictates commercial value of such information diminishes over time, and APPIM failed to demonstrate any current or future funding negotiations that could be affected.

Ruling and costs awarded

The Federal Court dismissed APPIM's application for review, finding that the organization failed to discharge its burden of establishing that the information at issue was exempt from disclosure under sections 20(1)(b) or 20(1)(c). The Court ordered APPIM to pay a lump sum of $5,220 to each of the defendants, consistent with the parties' agreement based on Column III of Tariff B of the Federal Courts Rules.