Executive Summary: Key Legal and Evidentiary Issues

• CP sought to exempt locomotive event recorder (LER) data from disclosure under s 20(1)(b) of the Access to Information Act following a fatal 2019 train derailment in British Columbia.

• The Court found the LER data constitutes "technical information" but rejected CP's argument that it qualifies as "scientific" information.

• Objective confidentiality was the determinative criterion, with the Court applying the three-factor Air Atonabee test to assess whether the disputed record was confidential by its intrinsic nature.

• Machine-generated LER data was held not to constitute a privileged "statement" under s 30 of the CTAISB Act because it lacks a human author and does not engage the purpose of encouraging candour.

• Comments inserted by a CP representative into the disputed record were found exempt from disclosure, as they have the character of a s 30 statement representing communication of technical information.

• CP was ordered to pay the TSB costs in the all-inclusive lump sum amount of $5,400, with the Court declining to award elevated costs or thrown-away motion costs to either party.

The fatal derailment and investigation

On February 4, 2019, a Canadian Pacific Railway Company (CP) freight train travelling in British Columbia made an emergency stop and subsequently derailed due to an uncontrolled movement. Three locomotives were involved in the incident, and all three operating personnel aboard suffered fatal injuries. The Canadian Transportation Accident Investigation and Safety Board (TSB), an independent federal agency mandated to advance transportation safety in Canada, commenced an investigation into the occurrence. On February 5, 2019, as part of that investigation and pursuant to its powers under s 19 of the CTAISB Act, the TSB required CP to provide, among other things, raw data from the LER for all three locomotives involved. An LER is a device that captures the status of all safety-critical locomotive controls in real time, recording details related to the locomotive's movement, such as speed and brake performance, and with respect to other locomotive systems, such as ringing the locomotive's bell or turning the headlights on or off. On or about February 15, 2019, CP provided to the TSB an electronic download of the requested data. The production that became the disputed record at the center of this application was sourced from the LER aboard the mid-train locomotive on the train that derailed and contains data about that train.

The access to information request and CP's objections

On March 31, 2022, the TSB issued a public report regarding the occurrence, which included in its Appendix D several tables of data excerpted from the disputed record with linear adjustments applied to the time and miles columns. On March 30, 2023, the TSB received an amended request under the Access to Information Act (ATIA), which the TSB describes as seeking access to a copy of the Safety Hazard Report, mid-train handling data from 21:49:33 to the time of derailment, and inbound and relief crew hours of service from February 3, 2019, to February 4, 2019. The TSB assembled the responsive record, which includes the disputed record, and pursuant to s 27(1) of the ATIA sent it to CP for submissions on whether all or part thereof was exempt from disclosure. CP replied on July 27, 2023, claiming the entirety of the responsive record was exempt under s 20(1)(b) of the ATIA and also argued that s 30(2) of the CTAISB Act, which accords statutory privilege to witness statements given to the TSB, applied to all information CP had shared with the TSB. On July 31, 2023, Ms. Jadie Zhang, the TSB analyst initially assigned to the request, wrote to CP inquiring about the possibility of severance of certain information. CP replied that it would review the information and respond but, despite follow-up by the TSB, did not ultimately do so. On February 22, 2024, the TSB advised CP that it would release the responsive record, subject to severing personal information, if it did not receive a response by March 19, 2024. Having received no response, on April 12, 2024, the TSB advised CP that the responsive record would be released. CP filed a Notice of Application on May 1, 2024, seeking judicial review of the decision pursuant to s 44(1) of the ATIA.

Whether the data qualifies as technical information

The parties agreed that the sole issue for the Court's determination was whether the disputed record is exempt from disclosure under s 20(1)(b) of the ATIA, which requires the information to be: (a) financial, commercial, scientific or technical; (b) confidential; (c) consistently treated in a confidential manner by the third party; and (d) supplied to a government institution by a third party. The parties agreed that the fourth criterion was met but disputed the application of the first three. The Court rejected CP's argument that the LER data was scientific in nature, finding that while the laws of physics are at play in the context of locomotion, this does not support a conclusion that the generation of data in the operation of a locomotive represents the results of scientific investigation. However, Justice Southcott found CP's argument regarding the "technical" nature of the data more compelling, accepting evidence from CP's affiant, Ms. Lori Kennedy, the Managing Director Regulatory Affairs in the Regulatory Affairs - Operations Safety & Security department of CP, that an event recorder system records precise data about the operation of train controls, the performance of the train in response to those controls, and the operation of associated control systems. The Court concluded the disputed record represents technical information for purposes of s 20(1)(b).

Consistent confidential treatment by CP

The Court also found that CP met its burden of demonstrating it consistently treated the disputed record as confidential. Ms. Kennedy's evidence showed that internally within CP, information in the disputed record is not readily available to all employees but rather is stored securely on CP's servers, and only approximately five employees in leadership positions, in particular departments, have the ability to access and share this information. Ms. Kennedy also referenced CP's Code of Business Ethics, which requires CP's employees to keep CP information confidential. When the disputed record was supplied to the TSB, this was done under cover of correspondence expressly stating the information was intended to be confidential and privileged, with each page of the disputed record bearing a confidentiality watermark and annotation. The Court distinguished this evidence from the mere bare assertions found insufficient in prior case law such as Toronto Sun Wah Trading Inc v Canada (Attorney General), 2007 FC 1091.

The objective confidentiality analysis and the Air Atonabee factors

The determinative issue was whether the disputed record was objectively confidential — that is, confidential by its intrinsic nature — as assessed through the three Air Atonabee factors: (1) whether the content of the record is not available from sources otherwise accessible by the public; (2) whether the information originated and was communicated in a reasonable expectation of confidence that it will not be disclosed; and (3) whether the information was communicated in a relationship between government and the party supplying it that is fostered for public benefit by confidential communication. On the first factor, the Court noted that while Appendix D of the TSB's public report disclosed some of the LER data, the disputed record contains data for each second between 20:25:34 on February 3, 2019, and 00:51:12 on February 4, 2019, representing approximately 5,596 separate temporal entries, whereas Appendix D contains only 93 distinct temporal entries and discloses information contained in only 10 of the 16 columns of the disputed record. This supported a conclusion that the vast majority of the data had not been publicly disclosed. On the second factor, CP relied heavily on the statutory privilege under s 30 of the CTAISB Act, arguing the disputed record constituted a privileged "statement." The Court found this argument unpersuasive, noting that the data in an LER has no author as required by the language of s 30, and the purpose of s 30 — to enhance the willingness of people to speak fully and freely to the TSB, as explained in Canadian National Railway Co v Canada, 2002 BCSC 1562 — is not engaged when the data is objectively and mechanically captured by a recording device that a railway company is statutorily required to maintain. On the third factor, the Court found that CP's arguments about fostering good relations between regulator and regulated party did not support a finding of objective confidentiality where no reasonable expectation of confidence had been established.

The distinct treatment of the comments

A critical distinction in the Court's analysis concerned the comments that a CP representative had inserted in relation to certain rows of the disputed record's data table. Unlike the mechanically collected LER data, the comments do not represent mechanically collected data downloaded from the LER. The Court found that the comments do have the character of a s 30 statement, representing communication of technical information of the sort contemplated by the TSB's Policy on the Protection and Use of Witness Statements and the reasoning in Chernetz v Eagle Copters Ltd, 2003 ABQB 331, the protection from disclosure of which is consistent with the purpose of s 30. In relation to the comments only, the Air Atonabee factors supported a conclusion that the information was confidential.

The ruling and outcome

The Federal Court, per Justice Richard F. Southcott, largely dismissed CP's application but granted partial relief. The Court declared that s 20(1)(b) of the ATIA applies to the comments inserted by CP's representative, exempting them from disclosure, and ordered the TSB not to disclose the comments. The remainder of the disputed record — the mechanically generated LER data — was found not to be exempt under s 20(1)(b), and CP's application to prevent its disclosure was dismissed. The TSB was largely successful on this application and was therefore entitled to costs. The Court awarded costs to the TSB in the all-inclusive lump sum amount of $5,400, calculated under Column III of Tariff B of the Federal Court Rules. The Court declined the TSB's request for costs of approximately $18,000, representing 25% of its legal fees, finding no comparable circumstances to those warranting heightened costs in the cited precedent of Barnes v Canada (Prime Minister), 2025 FC 1559. The Court also declined to award any costs related to a contested motion that was ultimately resolved and did not proceed to a hearing. CP was ordered to pay the Respondent costs of this application in the all-inclusive lump sum amount of $5,400.