T-2273-86
Jacques Noël (Applicant)
v.
Great Lakes Pilotage Authority Ltd. (Respon-
dent)
and
Dominion Marine Association and its Constituent
Members (Third Party)
INDEXED AS: NOEL V. GREAT LAKES PILOTAGE AUTHORITY
LTD.
Trial Division, Dubé J.—Montréal, October 20;
Ottawa, October 29, 1987.
Access to information — Application for disclosure of
names of masters not subject to compulsory pilotage under
Regulations — Disclosure not revealing personal information,
i.e. employment history, except that ten one-way passages
required by Regulations completed — Shipowners not meeting
burden of proving confidentiality of third party information
existed and maintained — Consequences of disclosure to
government and shipowners considered — List of names not
confidential — Purpose of Act to give access to records —
Exceptions to right specific and limited.
Maritime law — Pilotage — Application under Access to
Information Act for names of masters and deck watch officers
not subject to compulsory pilotage — Whether disclosure
revealing personal information, i.e. employment history
Whether third-party information of confidential, commercial
nature — Purpose of Pilotage Act — Pilotage exemption not
placing shipowners outside Access to Information Act —
Application allowed.
Practice — Parties — Standing — Application for disclo
sure identifying applicant as Federation, although signed by
applicant herein, Jacques Noël — Legal action taken in Noël's
name — Preliminary conferences, giving rise to orders, naming
Noël as applicant — Too late to object to Federation's
standing.
This is an application under the Access to Information Act
for the names of masters and deck watch officers who are not
subject to compulsory pilotage on the Great Lakes under clause
4(1)(c)(iii)(C) of the Great Lakes Pilotage Regulations. That
clause provides an exception to the rule that ships of a certain
tonnage are subject to compulsory pilotage where the master or
deck watch officer has been certified by the shipowner as
having completed ten one-way passages in the pilotage area
within a certain period. The Information Commissioner found
that the disclosure of the names would reveal personal informa
tion, in particular, the employment history of individuals (i.e.
that the individual had completed at least ten one-way pas
sages). The third party shipowners' association objected to
disclosure on the ground that it was confidential, commercial
information consistently treated as such pursuant to paragraph
20(1)(b) of the Act.
At the hearing, counsel for the third party raised the objec
tion that the pilots' federation could not seek relief under the
Act as it was neither a Canadian citizen nor a permanent
resident.
Held, the application should be allowed.
An individual's name does not constitute personal informa
tion unless disclosure of the name would reveal personal infor
mation about the individual. The Authority could simply use
the severance mentioned in section 25 to give only the names of
the individuals without further detail. Disclosure of the names
would not reveal any employment history except that the
individuals had made at least ten passages in the pilotage area.
The burden is on those refusing to disclose the information
(the shipowners) to prove that the information was confidential
and that it was consistently treated as such by the Association.
A bare assertion to that effect is not sufficient. The conse
quences of disclosure must also be considered. The govern
ment's ability to obtain the information in question would not
be compromised by disclosure of the names since it is required
by law. It is information which the shipowners must divulge if
they wish to take advantage of the exemption. The shipowners
had not established that disclosure of this information would
adversely affect their competitive positions. The exception in
clause 4(1)(c)(iii)(C) applies to ships, not individuals, although
certificates are issued to individuals by shipowners. Thus, the
individuals do not have an automatic right to transfer their
certificates to another ship. Finally, the information was avail
able to anyone who could identify by sight the masters or deck
watch officers on the ships in question.
Application of the four criteria in the Supreme Court of
Canada decision, Slavutych v. Baker et al. indicates that the
list of names is not confidential: 1) the names did not originate
in a confidence that they would not be disclosed 2) confidential
ity was not essential to maintaining the relation between the
parties since communication of the names is required by law 3)
there was no obligation on the parties to sedulously foster
relations 4) disclosure of the communications would not cause
permanent injury. Whatever injury disclosure might cause
would not outweigh the benefit of correct disposal of the
litigation, which must reflect the purpose of the Act, that is, to
extend access to government records. The absolutely essential
exceptions to the right of access must be specific and limited.
The purpose of the Pilotage Act was to promote safe naviga
tion, not to protect the commercial interests of shipowners. The
exemption favoured the owners but did not place them outside
the Access to Information Act.
The technical objection as to the status of the pilots' federa
tion could not be sustained. Although the name of the Federa
tion appeared in the box on the application form as applicant,
Jacques Noël had signed the statement of having status as a
citizen or permanent resident. His name was given as applicant
in orders concluding two preliminary conferences. The objec
tion was a last-minute argument not previously raised.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111
(Schedule I), ss. 2, 4, 19(1), 20(1)(b),(c),(d), 25, 48,
49.
Great Lakes Pilotage Regulations, C.R.C., c. 1266, s.
4(1)(c)(iii)(C) (as am. by SOR/83-256, s. 1).
Immigration Act, 1976, S.C. 1976-77, c. 52.
Pilotage Act, S.C. 1970-71-72, c. 52, ss. 12, 14(1)(c), 16.
Privacy Act, S.C. 1980-81-82-83, c. 111 (Schedule II), s.
3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Maislin Industries Limited v. Minister for Industry,
Trade and Commerce, [ 1984] 1 F.C. 939 (T.D.); Nation
al Parks and Conservation Ass'n v. Morton, 498 F.2d
765 (D.C. Cir. 1974); Ivanhoe Citrus Ass'n v. Handley,
612 F.Supp. 1560 (D.C.D.C. 1985); Getman v. N.L.R.B.,
450 F.2d 670 (D.C. Cir. 1971); Slavutych v. Baker et al.,
[1976] 1 S.C.R. 254.
CONSIDERED:
Great Lakes Pilotage Authority Ltd. v. Misener Shipping
Ltd., [1987] 2 F.C. 431 (T.D.).
AUTHORS CITED
Wigmore on Evidence, vol. 8, 3rd ed., John T. McNaugh-
ton, Boston: Little, Brown and Company, 1961.
COUNSEL:
Jean Leduc and Nathalie Bédard for appli
cant.
Laurent Fortier for respondent.
Philippe C. Vachon for third party.
SOLICITORS:
Desjardins, Ducharme, Desjardins &
Bourque, Montréal, for applicant.
Stikeman, Elliott, Montréal, for respondent.
McMaster, Meighen, Montréal, for third
party.
The following is the English version of the
reasons for order rendered by
DUBÉ J.: The applicant, a former president and
member of the Federation for the St. Lawrence
River and Great Lakes Pilots ("the Federation"),
was denied certain information by the respondent
Great Lakes Pilotage Authority Ltd. ("the
Authority") and subsequently filed a complaint
with the Information Commissioner, who dis
missed the complaint.
In the case at bar the applicant is seeking the
names of masters and deck watch officers who are
not subject to compulsory pilotage on the Great
Lakes under the exception made in clause
4(1)(c)(iii)(C) of the Great Lakes Pilotage
Regulations' ("the clause"), which reads as
follows:
4. (1) Subject to subsection (2), every ship of more than 300
gross registered tons is subject to compulsory pilotage unless it
is
(c) a ship that
(iii) is under the conduct of a master or deck watch officer
who
(C) has been certified within the preceding twelve
months by the owner of the ship as having completed, in
the three year period preceding the date of the certifi
cate, in the capacity of master or deck watch officer, not
less than ten one-way passages of the compulsory pilot-
age area in which the ship is navigating.....
It must be borne in mind at the outset that the
purpose of the Access to Information Act 2 ("the
Act"), as defined in section 2, is "to extend the
present laws of Canada to provide a right of access
to information in records under the control of a
government institution in accordance with the
principles that government information should be
available to the public, that necessary exceptions
to the right of access should be limited and specif
ic." Further, section 48 of the Act provides that
"the burden of establishing that the head of a
government institution is authorized to refuse to
disclose a record requested under this Act or a part
thereof shall be on the government institution
concerned."
' C.R.C., c. 1266 (as am. by SOR/83-256, s. 1).
2 S.C. 1980-81-82-83, c. 111 (Schedule I), section 2.
It is also worth noting that the Pilotage Act 3
creates pilotage authorities the purpose of which,
as stated in section 12, is to administer an efficient
pilotage service within the region set out "in the
interests of safety." To this end, an authority may
make regulations establishing compulsory pilotage
areas, and as provided in paragraph 14(1)(c),
"prescribing the circumstances under which com
pulsory pilotage may be waived". Section 16 states
that, except as otherwise provided, no person shall
have the conduct of a ship within a compulsory
pilotage area unless he is a licensed pilot or "a
regular member of the complement of the ship
who is the holder of a pilotage certificate for that
area". The aforementioned section was thus enact
ed in accordance with these provisions to exempt
certain certified individuals and so to except cer
tain ships from compulsory pilotage on the Great
Lakes. The applicant would like to know the
names of these individuals.
In his letter to the applicant dated April 4, 1986
the Assistant Information Commissioner ("the
Commissioner") states the reasons why he dis
missed the applicant's complaint, based on subsec
tion 19(1) and paragraphs 20(1) (b),(c) and (d) of
the Act. Subsection 19(1) reads as follows:
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.
We must accordingly consider forthwith section
3 of the Privacy Act [S.C. 1980-81-82-83, c. 111
(Schedule II)]:
3....
"personal information" means information about an identifi
able individual that is recorded in any form including, with
out restricting the generality of the foregoing ....
This is followed by several paragraphs the most
relevant of which are:
3....
(b) information relating to the education or the medical,
criminal or employment history of the individual or informa
tion relating to financial transactions in which the individual
has been involved,
3 S.C. 1970-71-72, c. 52.
(i) the name of the individual where it appears with other
personal information relating to the individual or where the
disclosure of the name itself would reveal information about
the individual, [My emphasis.]
It is also useful to refer to section 25 of the Act,
which provides that a government institution
which refuses to disclose a record is required to
"disclose any part of the record that does not
contain ... any such information or material" to
the applicant. In the case at bar, therefore, this
provision could authorize the Authority to deny
certain confidential information while at the same
time obliging it to provide the names of individuals
if it is found that the mere publication of the
names, severed from other information, does not
affect the confidentiality of that other information.
To begin with, the Commissioner argued that
the information requested is confidential under
subsection 19(1) of the Act and the definitions
contained in section 3 of the Privacy Act, since in
his submission the list of masters and deck watch
officers contains personal information on the
individuals in question, in particular information
regarding their employment history, and merely
disclosing their names would reveal information
about them.
The Commissioner pointed out that these
individuals are not government employees and do
not work under a contract with a government
institution. Their names are supplied to the Au
thority by letters from shipowners, which contain
more than each individual's name. They also indi
cate the occupation, name of employer, name of
ship and the fact that he has completed at least ten
passages, which is employment history.
I do not think this first concern of the Commis
sioner is wholly valid. An individual's name does
not constitute personal information unless, as pro
vided in paragraph 3(i) of the Privacy Act, disclo
sure of the name itself would reveal (personal)
information about the individual. In the case at
bar, the Authority could simply use the severance
mentioned in section 25 of the Act and give only
the names of the individuals in question, without
further detail. This would of course mean that
persons with these names are masters or deck
watch officers who meet the requirements of the
clause. Disclosure of the names alone would not
reveal any employment history, apart from the fact
that the individuals in question had made at least
ten passages in the Great Lakes pilotage area
during the three years in question.
The second objection to disclosure of the infor
mation requested, which is actually the fundamen
tal objection made by the third party, the shipown-
ers' association ("the Association"), is that such
information is third party information and that
under paragraph 20(1) (b) of the Act the head of a
government institution is required to refuse to
disclose any record containing confidential infor
mation treated as such. The provision reads as
follows:
20. (1) Subject to this section, the head of a government
institution shall refuse to disclose any record requested under
this Act that contains
(b) financial, commercial, scientific or technical information
that is confidential information supplied to a government
institution by a third party and is treated consistently in a
confidential manner by the third party; [My emphasis.]
Financial, scientific or technical information is
of course not at issue here. The Association alleged
that commercial information is at issue. It was
common ground that such information was pro
vided by the Association. However, it still had to
be proven, and the burden of doing so was on those
refusing to disclose the information, that the infor
mation in question was not only confidential but
was consistently treated as such by the Associa
tion.
In Maislin Industries Limited v. Minister for
Industry, Trade and Commerce, 4 the first Canadi-
an decision on the point, the Associate Chief Jus
tice dealt with the confidentiality of records. He
said this, at pages 944-945:
The question here is primarily one of fact. It is not sufficient
that Maislin considered the information to be confidential, as I
am sure it did, when it was supplied for the purpose of securing
Government loan guarantees. It must also have been kept
confidential by both parties, and obviously, therefore, must not
have been otherwise disclosed, or available from sources to
4 [1984] 1 F.C. 939 (T.D.).
which the public has access. In the final analysis, having read
the report, I am not persuaded that it is exempt from disclosure
on the basis of paragraph 20(1)(c). That assessment is con
firmed in the cross-examinations of Alan Maislin, George E.
Bennett, Jr. and Johnson Smith.
In other words, it is not sufficient for the ship-
owners to allege that confidentiality existed and
was maintained for the names of the individuals. It
must also be proven.
The Association filed affidavits from ten ship-
owners' representatives. The affidavits, which are
quite brief and almost identical, state that the
names of the individuals have always been treated
confidentially, without further clarification. How
ever, cross-examination disclosed that the names
were simply sent by mail, without being marked
"confidential" and with no visible indication of a
desire for or expectation of confidentiality. The
Authority said nothing on this point.
The Court must further consider the conse
quences of disclosure of commercial information.
As the United States Court of Appeals noted in
National Parks and Conservation Ass'n v.
Morton,' a case cited by Jerome A.C.J. in
Maislin:
To summarize, commercial or financial matter is confidential
for purposes of the exemption if disclosure of the information is
likely to have either of the following effects: (1) to impair the
Government's ability to obtain necessary information in the
future; or (2) to cause substantial harm to the competitive
position of the person from whom the information was
obtained.
On the first requirement, it is clear that disclo
sure of the names of the individuals cannot in any
way compromise the government's ability to obtain
the information in question, since it is required by
law and shipowners have no alternative but to
provide the names if they wish to benefit from the
exemption for their ships.
The Association alleged that disclosure of the
names could affect the competitive positions of
shipowners since the services of these individuals
are in great demand. However, it was for the
shipowners to present evidence of this. The short
5 498 F.2d 765 (D.C. Cir. 1974), at p. 770.
paragraph in each affidavit dealing with this
matter is not entirely convincing:
7. It is commercial insofar as exemption from pilotage is
taken into consideration when computing the freight and/or
operating costs for a voyage and the carriage of cargo;
It should also be borne in mind that the clause
does not apply to individuals but to the ships under
their command. The clause specifies that the cer
tificate is issued to the individuals by the shipown-
er. It does not automatically confer on the
individuals in question a right to transfer their
certificates to another ship. Moreover, there was
no evidence that these individuals attempted to use
the certificates for their personal benefit.
In another United States decision, Ivanhoe
Citrus Ass'n v. Handley, 6 the Court had to consid
er disclosure of the names of orange growers by
the Department of Agriculture. It found that those
who objected had not proven that the issuing of
such a list would cause them substantial damage.
Moreover, the names of growers could be obtained
simply by visiting the orange groves. I quote, at
page 1566:
Plaintiffs have made no showing that the release of the list
will cause substantial harm to the competitive positions of the
plaintiff handlers. Plaintiff's allegations of harm caused by Mr.
Pecosolido's solicitation is at best speculative. Moreover,
anyone can discover the names and addresses of growers, (the
only information on the list), by visiting orange groves, and by
other obvious means. Wilson Dec. 7-9; Weisman Dec. 4-8.
Plainly, the release of the list cannot cause substantial harm to
plaintiffs. The list, therefore, is not covered by FOIA
exemption 4.
It is clear in the case at bar that the applicant
Noël, or his fellow pilots, could identify by sight
and obtain the names of the masters or deck watch
officers on ships other than their own navigating
on the Great Lakes.
In Getman v. N.L.R.B., 7 a decision by a United
States Court of Appeals, an action was brought by
law professors seeking to obtain from the United
States National Labor Relations Board the names
and addresses of employees eligible to vote in
6 612 F.Supp. 1560 (D.C.D.C. 1985).
450 F.2d 670 (D.C. Cir. 1971).
certain elections. The Court noted that employers
were legally required to provide these names,
which were provided without any promise of confi
dentiality by the Board, and that the names there
fore could not be described as commercial or
financial secrets. I quote, at page 673:
Obviously, a bare list of names and addresses of employees
which employers are required by law to give the Board, without
any express promise of confidentiality, and which cannot be
fairly characterized as "trade secrets" or "financial" or "com-
mercial" information is not exempted from disclosure by Sub
section (b)(4).
In Slavutych v. Baker et a1., 8 the Supreme
Court of Canada had to consider the nature of a
record marked "confidential", and at that time it
restated four essential conditions, taken from Wig-
more on Evidence, if communications are to be
privileged and cannot be disclosed. I quote, at page
260:
"(1) The communications must originate in a confidence
that they will not be disclosed.
(2) This element of confidentiality must be essential to the
full and satisfactory maintenance of the relation between the
parties.
(3) The relation must be one which in the opinion of the
community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the
disclosure of the communications must be greater than the
benefit thereby gained for the correct disposal of litigation."
The application of these four criteria to the case
at bar clearly indicates that the list of names of the
individuals is not confidential. First, there is no
evidence that the names originated in a confidence
that they would not be disclosed. Second, confi
dentiality is not essential to maintaining the rela
tion between the parties, since communication of
the names is required by the clause. Third, in the
case at bar there is no obligation on the parties to
sedulously foster relations. Fourth, it was not
established that disclosure of the communications
would cause any permanent injury: whatever
injury might be supposed to occur would certainly
not be greater than the benefit of correct disposal
of the litigation, which in the case at bar must
reflect the purpose of the Act, namely extending
8 [1976] 1 S.C.R. 254.
the laws of Canada to provide a right of access to
government records.
On this last point I should also mention that the
Pilotage Act was not enacted primarily to protect
the commercial interests of shipowners, but in the
interests of safe navigation, as stated in section 12
of the Act. It is for this very reason that a pilotage
service is made compulsory in certain designated
areas. The exception accorded under this clause to
certain ships, which have masters or deck watch
officers on board with special experience, favours
the owners of those ships but does not as a further
consequence create an exemption allowing such
owners to place themselves outside the Act. Once
again, it must be borne in mind that the purpose of
the Act is to extend access to records and that the
absolutely essential exceptions to this right must
be specific and limited.
Further, in a recent judgment of this Court,
Great Lakes Pilotage Authority Ltd. v. Misener
Shipping Ltd., 9 Denault J., who in his judgment
stressed the importance of maritime safety, did not
hesitate to name two individuals (Masters M.
Armstrong and E. Grieve) who met the require
ments of the clause.
At the hearing counsel for the third party raised
a technical objection that, under the provisions
mentioned in section 4 of the Act, only (a) Canadi-
an citizens or (b) permanent residents within the
meaning of the Immigration Act, 1976 [S.C.
1976-77, c. 52] are entitled to access to informa
tion. He concluded that the Federation did not
meet either of these criteria.
On the application form dated March 4, 1985
the name of the Federation appears in the box
titled "Identification of Applicant". The following
statement is printed at the bottom of the form:
I have a right of access to government records under the
Access to Information Act by virtue of my status as a Canadian
citizen, permanent resident within the meaning of the Immi
gration Act, 1976, by Order of the Governor in Council pursu
ant to subsection 4(2) of the Access to Information Act.
9 [1987] 2 F.C. 431 (T.D.).
This statement is signed by the applicant
Jacques Noël. The correspondence that follows is
addressed to Jacques Noël and answered by him
until his counsel come into the picture. The legal
action was brought in the name of Jacques Noël.
In addition, two preliminary conferences were held
before me, on December 1, 1986 and March 2,
1987. These two conferences were concluded by
two orders on which the name of Jacques Noël is
given as the applicant. No objection was raised at
these two preliminary appearances or at the hear
ing itself, except for this last-minute argument.
This objection cannot be sustained.
Under the provisions of section 49 of the Act,
therefore, I find for the applicant and direct the
respondent Great Lakes Pilotage Authority to dis
close to the applicant the names of the individuals
who hold a certificate issued by the shipowners or
have been in any manner certified by the shipown-
ers pursuant to the provisions of clause
4(1)(c)(iii)(C) of the Great Lakes Pilotage Regu
lations. In the circumstances I award costs to the
applicant, payable by the third party. The respond
ent and the third party shall each be responsible
for their own costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.