BACKGROUND

[1] On March 16, 2022, the Canadian Transportation Agency (Agency) issued Decision LET‑R-13-2022, where it addressed claims for confidentiality made by both Vancouver and CP.

[2] The Agency granted Vancouver’s claims for confidentiality with respect to land valuation information and certain estimated dollar figures found in the reports that it filed.

[3] The Agency also granted CP an opportunity to file a supplementary submission in respect of its claims for confidentiality.

[4] Finally, the Agency informed the parties that it intends to use aggregated values for track assets in the final public decision, and both parties were provided with an opportunity to file submissions if they disagreed with the Agency’s approach.

[5] On March 30, 2022, both Vancouver and CP filed their responses to Decision LET‑R‑13‑2022.

POSITIONS OF THE PARTIES

Vancouver’s submission

[6] Vancouver states that it does not object to the Agency including aggregated values for track assets in the final public decision, provided that:

- the Agency’s determination with respect to the total net salvage value (NSV) of the Van Horne Line (Line) and any other values which
  would together permit a reader to calculate the land value of the property at issue, remains confidential; and

- if the Agency determines that the costs to dismantle the remaining portion of the Marpole Rail Bridge are to be considered in determining
  the NSV of the Line, then any dollar figures for the estimated costs of removing or dismantling the Bridge remain confidential.

[7] Vancouver argues, as it did in support of its previous claims for confidentiality, that land valuation information related to the acquisition, disposition or expropriation of land or improvements is the type of information that Vancouver specifically keeps confidential pursuant to paragraph 165.2(1)(e) of the Vancouver Charter, SBC 1953, c 55 (Vancouver Charter). Similarly, Vancouver argues that the information relating to the costs to remove or dismantle the bridge is information that Vancouver specifically keeps confidential pursuant to paragraph 165.2(1)(e) of the Vancouver Charter.

[8] Vancouver states that the specific, direct harm that would result from disclosure of this information outweighs the public interest in having the information disclosed. According to Vancouver, the public interest is served by disclosing the process and methodology of determining NSV and is not served by disclosing the specific amounts related to a particular NSV determination.

CP’s submission

[9] CP states that it does not object to the Agency including aggregated values for track assets in the final public decision.

[10] CP again requests that the following documents, in their entirety, remain confidential:

- the Industrial Lead Compensation Agreement (Tab 3);

- the Appraisal Report (Tab 12);

- the Environmental Assessment (Tab 18);

- previous Sales Agreements and Offers for Rail (Tabs 21 and 22);

- confidential Supply of Service Agreements (Tabs 24, 27, and 28); and

- the Lease Agreement and net present value calculation for the Lease Agreement (Tabs 30 and 31).

[11] CP submits, however, that the Industrial Lead Compensation Agreement (Tab 3) should be struck from the record as irrelevant, as the Agency determined that CP’s statutory right of way (SROW) interest is not to be included in the NSV application in Decision LET‑R-71-2019. CP states that it has included this agreement in its confidentiality request in case the Agency determines that this document is relevant and must remain on the record.

[12] According to CP, the documents listed above should not be placed on the Agency’s public record because their contents meet the test set out in Sherman Estate v Donovan, 2021 SCC 25 (Sherman Estate).

[13] CP submits that the public disclosure of these documents poses a serious risk to an important public interest because they contain confidential commercial information and the Agency compelled its disclosure under the Guidelines. CP refers to paragraph 41 of Sherman Estate, which states that the general commercial interest of preserving confidential information is an important interest because of its public character. CP states that it was required to provide these documents because they contain information relevant to the Agency’s NSV calculation, and that pursuant to subsection 4(1) [4(2)] of the Guidelines, “no party shall refuse to file a document on the basis of a claim for confidentiality alone”.

[14] CP argues that these documents contain financial and commercially sensitive information, and that disclosure of this information would harm CP by providing competitors, shippers and suppliers with insight that would affect CP’s position in negotiations and commercial dealings. CP submits that confidentiality is necessary to preserve not only its commercial interests but also those of the third parties it works with.

[15] CP also submits that the public interest does not outweigh the disclosure of its financial and commercially sensitive information. CP argues that the public would still be able to understand the Agency’s reasoning for the NSV determination, as shown in previous NSV determinations where such documents were covered by a confidentiality order, and, thus, the impact would be minimal.

THE LAW AND THE GUIDELINES

[16] The open court principle requires that, with limited exceptions, proceedings and their associated records be made public. This principle applies to the Agency when it undertakes proceedings in its capacity as a quasi-judicial tribunal. The Agency is, therefore, required to make available on the public record any submissions or documents filed during these proceedings, unless a request for confidentiality has been made to and accepted by the Agency.

[17] Section 4 of Appendix A of the Guidelines reflects the open court principle in stating that the Agency shall place on its public record any document filed with it in respect of any proceeding unless the person filing the document makes a claim for confidentiality in compliance with this section and that claim is accepted by the Agency. It sets out the procedure applicable to claims for confidentiality filed in the context of NSV proceedings.

[18] In assessing confidentiality, the Agency first assesses whether the information is relevant to the proceeding. If the Agency determines that information is not relevant, it may decide to not place the information on the Agency’s record. If information is found to be relevant, the Agency must then apply the test for discretionary limits on court openness.

[19] Under section 25 of the Canada Transportation Act, SC 1996, c 10, the Agency has broad powers, including the authority to make orders regarding the confidentiality of documents. The Agency exercises this power in a manner that is consistent with jurisprudence from the Supreme Court of Canada.

[20] Recently, the Supreme Court of Canada reviewed the requirements for any discretionary limit on the openness of the court to the public and media in Sherman Estate and recast the test for confidentiality. In accordance with the principles set out in Sherman Estate, a person seeking a restriction must establish that:

1. Court openness poses a serious risk to an important public interest;
2. The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
3. As a matter of proportionality, the benefits of the order outweigh its negative effects.

[21] A commercial interest can constitute an important public interest for the purpose of the test, but the interest in question must be expressed as a public interest. To prevail over the public interest in court openness, a commercial confidentiality interest must be more than merely specific to the party requesting the order (Sherman Estate, at para 41, citing Sierra Club of Canada v Canada [Minister of Finance], 2002 SCC 41 [Sierra Club] at para 55). In other words, there must be a general principle at stake. Further, the risk identified must be real and substantial, and well grounded in the evidence. It must pose a serious threat to the commercial interest in question (Sierra Club, at para 54).

ANALYSIS AND DETERMINATIONS

Vancouver’s claim for confidentiality

[22] The information relating to any dollar figures for the costs of the removal of the Marpole Rail Bridge is found in the reports submitted by Vancouver and, therefore, is covered by the Agency’s confidentiality order made in Decision LET-R-13-2022.

[23] The Agency finds that the total NSV of the Line and any other values that would allow a reader to calculate the land value for the property are relevant to the proceeding and, thus, must apply the framework set out in Sherman Estate:

1. SERIOUS RISK TO AN IMPORTANT PUBLIC INTEREST

[24] In Decision LET-13-2022, the Agency recognized that the outcomes of future negotiations and commercial dealings involving Vancouver impact the public and that the protection of sensitive commercial information in that context is an important public interest. The Agency also found that the public disclosure of Vancouver’s land valuation numbers would pose a serious risk to its position in negotiations and commercial dealings related to the acquisition, disposition or expropriation of land. The Agency finds that the total NSV value of the Line, along with any values that allow the public to calculate the land value of the property, constitute information of the same nature and that their disclosure would similarly pose a serious risk to the important public interest.

2. NECESSITY

[25] Vancouver’s claim relates to specific amounts to be used in the final determination. Given the significance of these numbers, it does not appear possible to restrict the scope of the claim, nor does there appear to be an alternative measure that would prevent the serious risk.

3. PROPORTIONALITY

[26] Vancouver submits that the public interest is served by disclosing the process and methodology of determining NSV, not specific amounts. However, the Agency finds that the total NSV of the Line, along with any associated land valuation information, is information that is central to addressing the main question brought before the Agency by Vancouver. There is a fundamental rationale for disclosing these core elements of the Agency’s final NSV determination: ensuring confidence in the administration of justice through transparency. Further, the final NSV determined by the Agency in previous cases has always been made public as the Agency considers its final NSV determination and related calculations to be equally as important to the public as NSV processes and methodologies.

[27] The Agency finds that Vancouver’s submission fails to establish that the benefits of keeping the total NSV of the Line and any associated land valuation used to form part of the total NSV confidential outweigh the negative impacts the confidentiality order would have on the open court principle. Accordingly, the Agency denies Vancouver’s new claim for confidentiality.

CP’s claims for confidentiality

A. THE INDUSTRIAL LEAD COMPENSATION AGREEMENT (TAB 3)

[28] In Decision LET-R-59-2019, the Agency determined that, with respect to the SROW portion of the Line, only the value of the track assets and the cost of their removal are applicable for NSV purposes. The Agency, therefore, finds that the Industrial Lead Compensation Agreement (Tab 3), which contains the terms and conditions of CP’s SROW interest, is irrelevant to this proceeding. Accordingly, the Agency will not place this document on the Agency’s record.

B. THE PREVIOUS SALES AGREEMENT AND OFFERS FOR RAIL (TABS 21 AND 22), THE SUPPLY OF SERVICES AGREEMENTS (TABS 24, 27 AND 28) AND THE LEASE AGREEMENT (TABS 30 AND 31)

[29] The Previous Sales Agreement and Offers for Rail (Tabs 21 and 22), the Supply of Services Agreements (Tabs 24, 27 and 28) and the Lease Agreement (Tabs 30 and 31) are commercial agreements between CP and third parties that are not parties to the NSV proceeding. CP states that their content is confidential, and that their disclosure would not only impact CP’s negotiating position, but it would also impact the competitive positions of the third parties.

[30] The Agency finds that these agreements are relevant to this proceeding, considering that a value representative of the interest in any leases and agreements that are expected to survive the transfer of the railway line is taken into consideration by the Agency when establishing the NSV. The Agency will, therefore, consider CP’s claim for confidentiality over these documents within the framework set out in Sherman Estate.

1. Serious risk to an important public interest

[31] In Sierra Club, the Supreme Court of Canada stated that the preservation of confidential commercial information constitutes a sufficiently important commercial interest as long as certain criteria relating to the information is met (para 59). The applicant must demonstrate that the information in question has always been treated as confidential; that on a balance of probabilities, its proprietary, commercial and scientific interests could reasonably be harmed by the disclosure of the information; and that the information was accumulated with a reasonable expectation of it being kept confidential (Sierra Club, para 59 and 60).

[32] In this case, CP and the third parties have not made public the information contained in the commercial agreements. CP states that the terms and conditions of these agreements are confidential, and that the release of this sensitive commercial information would not only impact the negotiating power and competitive positions of CP, but also of the third parties. Further, some of these agreements contain confidentiality clauses. Taking the foregoing into account, the Agency finds that the information contained in the agreements has been treated at all times by CP and the third parties as confidential; that their commercial interests could reasonably be harmed if the information was disclosed; and that the information was accumulated with a reasonable expectation of it being kept confidential. Therefore, the Agency finds that disclosing the contents of the agreements would result in a serious risk to the important public interest of preserving confidential commercial information.

2. Necessity

[33] The Agency finds that as these agreements have been treated as confidential in their entirety, there does not appear to be a reasonable alternative measure to submitting them under a confidentiality order.

3. Proportionality

[34] Placing the agreements on the Agency’s confidential record would not prevent the public from understanding the reasons for the Agency’s NSV determination. By contrast, disclosing this information would significantly harm the interest of protecting confidential commercial information. Accordingly, the Agency finds that the benefits of granting confidentiality outweigh any negative effects.

[35] Based on the above, the Agency grants CP’s claim for confidentiality with respect to the Previous Sales Agreement and Offers for Rail (Tabs 21 and 22), the Supply of Services Agreements (Tabs 24, 27 and 28) and the Lease Agreement (Tabs 30 and 31).

C. THE APPRAISAL REPORT (TAB 12)

[36] CP states that the Appraisal Report contains information describing the quality of CP’s lands beyond what is on the public record. CP further states that it agreed to the release of the amounts as set out in previous NSV applications, but that the analysis leading to this is confidential. Further, CP is of the view that because of what was decided in Decision LET-R-71-2019, the majority of the report regarding the SROWs is not to be included in the NSV determination, and thus it is irrelevant.

[37] The Appraisal Report was completed by a third party at CP’s request, and contains estimates of the current market value of 12 properties comprising the one fee simple parcel owned by CP and 11 SROW areas running through South Vancouver and the Van Horne-Bridgeport Industrial area, along with the methods, approaches and analysis used to make the calculations. CP proposes to redact the entire 123-page report except for the title page and third page, which contains a summary of the properties’ estimated aggregate market values.

[38] With respect to information regarding the 11 SROW lands, the Agency finds that it is irrelevant to this proceeding, given that the Agency decided in Decision LET-71-2019 that any estimate of land value for the SROW lands should be excluded from the NSV calculations. Therefore, the Agency will not place this information on the Agency’s record.

[39] The remaining portions of the Appraisal Report are relevant to this proceeding, as the Agency must take into consideration the information relating to the fee simple property owned by CP when making its NSV determination.

[40] Based on CP’s submission, the appraisal report contains information that is already on the public record; information that is confidential, described by CP as the analysis leading to any amounts; and information that is irrelevant to the NSV determination, described by CP as the majority of the report regarding the SROW lands. CP has not distinguished one set of information from another in the report, which makes it difficult for the Agency to apply the framework set out in Sherman Estate.

[41] The Agency is of the view that the confidentiality order sought by CP over the entire document would not intrude minimally on the open court principle, particularly in light of CP’s submission that it contains information already in the public domain. Even if the Agency were to find that disclosure poses a serious risk to an important public interest, CP’s current request does not satisfy the second step of the test, which requires the Agency to consider whether there are alternatives to the order and to restrict the order as much as reasonably possible to prevent the serious risk (Sherman Estate, at para 105; Sierra Club, at para 57).

[42] Based on the above, the Agency directs CP to file:

1. one public version of the Appraisal Report where any information that is public or not confidential is unredacted, and where the specific information claimed as confidential is redacted;
2. one confidential version of the Appraisal Report that contains the specific information claimed as confidential, is marked “contains confidential information” on the top of each page, and that identifies the portions that have been redacted from the document referred to above; and
3. supplementary comments in respect of this specific information that enables the Agency to consider CP’s claim within the framework set out in Sherman Estate.

[43] Any information regarding the 11 SROW lands should be removed from both versions of the Appraisal Report filed by CP.

D. THE ENVIRONMENTAL ASSESSMENT (TAB 18)

[44] CP states that the Environmental Assessment contains information on the status of CP lands including historical reports, site reconnaissance and soil assessment. CP further states that it uses its lands for commercial purposes and that every page of the 371‑page document should be redacted.

[45] The Environmental Assessment is relevant to this proceeding, considering that it forms part of the evidence on environmental considerations to be taken into account by the Agency to determine whether remediation costs should be considered in the overall NSV determination.

[46] The Agency notes that this document contains information that is already in the public domain or that does not qualify as highly sensitive. For example, it contains information available on websites of the Government of Canada and of the Province of British Columbia. CP has not distinguished confidential information from information that is public or not confidential, which makes it difficult for the Agency to apply the test set out in Sherman Estate.

[47] Similar to the above, the Agency is of the view that CP has not tailored its request to intrude minimally on the open court principle, and that confidentiality over the entire Environmental Assessment would not satisfy the test set out in Sherman Estate.

[48] Based on the foregoing, the Agency directs CP to file:

1. one public version of the Environmental Assessment where any information that is public or not confidential is unredacted, and where the specific information claimed as confidential is redacted;
2. one confidential version of the Environmental Assessment that contains the specific information claimed as confidential, is marked “contains confidential information” on the top of each page, and that identifies the portions that have been redacted from the document referred to above; and
3. supplementary comments in respect of this specific information that enables the Agency to consider CP’s claim within the framework set out in Sherman Estate.

ORDER

[49] CP has until 5:00 p.m. Gatineau local time on July 22, 2022 to file public and confidential versions of the Appraisal Report and the Environmental Assessment according to the Agency’s directions outlined above. This includes supplementary comments in respect of the specific information claimed as confidential to enable the Agency to consider CP’s claims within the framework set out in Sherman Estate.

[50] If CP has not complied with the Agency’s order by July 22, 2022, the Agency will place the current confidential versions of these documents on its public record.

[51] All correspondence and pleadings should refer to Case 18-04065 and be filed through the Agency’s Secretariat email address at secretariat@otc-cta.gc.ca.
 

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APPENDIX TO DECISION NO. LET-R-26-2022

Section 4 of Appendix A of the Guidelines states:

1. The Agency shall place on its public record any document filed with it in respect of any proceeding unless the person filing the document makes a claim for confidentiality in compliance with this section and that claim is accepted by the Agency.
2. No person shall refuse to file a document on the basis of a claim for confidentiality alone.
3. A person making a claim for confidentiality shall file: 

a. one version of the document from which the confidential information has been deleted, whether or not an objection has been made under paragraph (4)(b); and

b. one version of the document that contains the confidential information marked “contains confidential information” on the top of each page and that identifies the portions that have been deleted from the version of the document referred to in paragraph (3)(a).

    4. A person making a claim for confidentiality shall indicate:

 

1. 1. the reasons for the claim, including, if any specific direct harm is asserted, the nature and extent of the harm that would likely result to the person making the claim for confidentiality if the document were disclosed; and
   2. whether the person objects to having a version of the document from which the confidential information has been removed placed on the public record and, if so, shall state the reasons for objecting.

 

5. The Agency shall place a document in respect of which a claim for confidentiality has been made on the public record if the Agency finds that the document is relevant to the proceeding and that no specific direct harm would likely result from its disclosure or that any demonstrated specific direct harm is not sufficient to outweigh the public interest in having it disclosed.

6. If the Agency determines that a document in respect of which a claim for confidentiality has been made is not relevant to a proceeding, it will not form part of the record and the Agency will return the document.

7. If the Agency determines that a document in respect of which a claim for confidentiality has been made is relevant to a proceeding and that the specific direct harm likely to result from its disclosure justifies a claim for confidentiality, the Agency may:

• 1. order that the document not be placed on the public record but that it be kept confidential;
  2. order that a version or a part of the document from which the confidential information has been removed be placed on the public record;
  3. order that the document or any part of it be provided to the parties to the proceeding, or only to their solicitors, and that the document not be placed on the public record; or
  4. make any other order that it considers appropriate.