Equifax Canada Co. v. Canada (Minister of Public Works and Government Services) et al., (2014) 455 F.T.R. 164 (FC)

• Judge: Manson, J.
• Court: Federal Court (Canada)
• Case Date: May 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 455 F.T.R. 164 (FC);2014 FC 487

Equifax Can. Co. v. Can. (2014), 455 F.T.R. 164 (FC)

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[French language version follows English language version]

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Temp. Cite: [2014] F.T.R. TBEd. JL.061

Equifax Canada Co. (applicant) v. Minister of Public Works and Government Services Canada and The Information Commissioner of Canada (respondents)

(T-1003-13)

Equifax Canada Co. (applicant) v. Minister of Human Resources and Skills Development and The Information Commissioner of Canada (respondent)

(T-1300-13; 2014 FC 487; 2014 CF 487)

Indexed As: Equifax Canada Co. v. Canada (Minister of Public Works and Government Services) et al.

Federal Court

Manson, J.

May 21, 2014.

Summary:

Pursuant to s. 44(1) of the Access to Information Act, Equifax Canada Co. brought two challenges to the disclosure of information. The issue in the first application (T-1003-13) was whether the price for a contract with Equifax regarding credit protection services offered to Canada Student Loan Program participants whose personal information was on a hard drive lost by or stolen from Human Resources and Skills Development Canada should be exempt from disclosure under ss. 20(1)(c) and 20(1)(d) of the Access to Information Act. The issue in the second application (T-1300-13) was whether certain portions of contracts entered into between Human Resources and Skills Development Canada and Equifax since 2006 should be exempt from disclosure under ss. 20(1)(c) and 20(1)(d) of the Act.

The Federal Court allowed the application in T-1003-13 under s. 20(1)(c) of the Act, holding that the contract price was exempt from disclosure. The court dismissed the application in T-1300-13.

Crown - Topic 7168.1

Examination of public documents - Freedom of information - Legislation - Disclosure of details of contract to supply goods or services to public body - [See both Crown - Topic 7173 ].

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Pursuant to s. 44(1) of the Access to Information Act, Equifax Canada Co. challenged a decision by the Minister of Public Works and Government Services Canada and the Information Commissioner of Canada - At issue was whether the price for a contract with Equifax regarding credit protection services offered to Canada Student Loan Program participants whose personal information was on a hard drive lost by or stolen from Human Resources and Skills Development Canada should be exempt from disclosure under ss. 20(1)(c) and 20(1)(d) of the Act - The Federal Court allowed the application - To the extent that Equifax claimed an exemption under s. 20(1)(d) of the Act, at best it had a basis for arguing that disclosure of the contract price could make future negotiations more competitive - That was insufficient for Equifax to fall under the exemption requirements in s. 20(1)(d) - However, Equifax met the threshold established under s. 20(1)(c) of the Act to justify exemption of the contract price - By disclosing the contract price, there was a real, objective risk that this information would give competitors a head start or "spring board" in developing competitive bids against Equifax for future contracts for data protection services - That risk was greater than a mere possibility - See paragraphs 17 to 30.

Crown - Topic 7173

Examination of public documents - Freedom of information - Legislation - Disclosure of information where disclosure could result in financial loss or prejudice to competitive position - Pursuant to s. 44(1) of the Access to Information Act, Equifax Canada Co. challenged a decision by the Minister of Human Resources and Skills Development Canada and the Information Commissioner of Canada - At issue was whether certain portions of contracts entered into between Human Resources and Skills Development Canada (HRSDC) and Equifax since 2006 should be exempt from disclosure under ss. 20(1)(c) and 20(1)(d) of the Act - Equifax noted several areas of disclosure which would prejudice their competitive position: a. location of the HRSDC office which provided the contracts at issue; b. the name and phone number of the HRSDC employee who issued the contracts; c. type of security access granted to Equifax; d. the products offered; and e. the total price of the contracts - The Federal Court dismissed the application - Equifax argued that disclosure of the contract price could make future negotiations more competitive - Based on the speculative nature of the evidence on this issue, Equifax had not met the threshold for an exemption under s. 20(1)(d) - While Equifax's argument that the information contained in the disclosure might more easily facilitate the attempted entry into the market for government services by a rival company had some merit, it did not meet the threshold for an exemption under s. 20(1)(c) - See paragraphs 31 to 38.

Crown - Topic 7174

Examination of public documents - Freedom of information - Legislation - Disclosure of information which could interfere with contractual or other negotiations - [See both Crown - Topic 7173 ].

Cases Noticed:

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 16].

Hi-Rise Group Inc. v. Canada (Minister of Public Works and Government Services) (2004), 318 N.R. 242; 2004 FCA 99, refd to. [para. 16].

Merck Frosst Canada Ltd. v. Canada (Minister of Health) (2012), 426 N.R. 200; 2012 SCC 3, refd to. [para. 18].

1488245 Ontario Ltd. v. Riska et al., [2010] O.T.C. Uned. 6780; 2010 ONSC 6780, refd to. [para. 19].

DCR Strategies Inc. v. Vector Card Services LLC et al., [2011] O.T.C. Uned. 5473; 2011 ONSC 5473, refd to. [para. 19].

Canada Post Corp. v. National Capital Commission (2002), 221 F.T.R. 56; 2002 FCT 700, refd to. [para. 23].

Aventis Pasteur Ltd. v. Canada (Attorney General) (2004), 262 F.T.R. 73; 2004 FC 1371, consd. [para. 28].

Statutes Noticed:

Access to Information Act, R.S.C. 1985 c. A-1, sect. 20(1)(c), sect 20(1)(d) [para. 4].

Counsel:

Stephen Schwartz, for the applicant;

Eric Peterson, for the respondent, Public Works and Government Services;

Michael De Santis and Jill Copeland, for the respondent, Information Commissioner of Canada.

Solicitors of Record:

Chaitons LLP, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent, Public Works and Government Services;

Office of the Information Commissioner, Gatineau, Quebec, for the respondent, Information Commissioner of Canada.

These applications were heard on May 13, 2014, at Toronto, Ontario, before Manson, J., of the Federal Court, who delivered the following decision on May 21, 2014.