Letter Decision No. LET-R-34-2019

BACKGROUND

On January 14, 2019, the Agency issued individual letter decisions to the following participants: the Canadian National Railway Company (CN), the Canadian Pacific Railway Company (CP), BNSF Railway Company (BNSF), the Forest Products Association of Canada (FPAC), the Canadian Oilseed Processors Association (COPA), the Freight Management Association of Canada (FMA), the Western Canadian Shippers’ Coalition (WCSC), and the Western Grain Elevator Association (WGEA). In those decisions, the Agency stated that it had initiated an investigation into possible freight rail service issues in the Vancouver area and directed each participant to submit information and data related to its operations in order to provide the Agency with information required for its investigation.

On January 24, 2019, in Decision No. LET-R-20-2019 (first Decision on confidentiality), the Agency addressed requests for confidentiality filed by CN, CP, BNSF, WGEA and FPAC.

On January 29 and 30, 2019, the Agency held an oral hearing in Vancouver, British Columbia. During the oral hearing, the Agency directed participants to submit additional information and responses to the questions posed by the Agency.

CP, WGEA and FPAC filed requests for confidentiality with respect to the additional information and responses to the Agency’s questions from the oral hearing.

On March 6, 2019, the Agency issued Decision No. LET-R-30-2019 (second Decision on confidentiality), in which, the Agency addressed requests for confidentiality filed by CP, CN, FPAC, WGEA, Western Stevedoring, Viterra Inc., Univar Canada Inc., and Shell Canada Products Ltd. Also, on that day, the Agency issued Decision No. LET-R-29-2019, in which, it directed questions to the participants and issued the second Inquiry Officer’s report.

On March 26, 2019, CP filed its answer to the Agency’s questions and also filed a request for confidentiality.

CP’S REQUEST FOR CONFIDENTIALITY

CP filed a confidential and public version of its answer, and requests that the confidential version only be provided to the Inquiry Officer and the Agency.

CP identifies as confidential traffic data related to Columbia Containers Ltd. (Columbia); Specifically,

• Page 8 of its answer: average railcars in Vancouver for the years of 2017 to 2018; and
• Page 9 of its answer and Appendix C: daily unload statistics from October 2018 to January 2019.

With respect to the average railcar data, which was previously submitted by CP in its submission of additional information and responses to the Agency’s questions from the oral hearing, CP submits that, in the second decision on confidentiality, the Agency granted CP’s request for confidentiality.

For the daily unload statistics, CP submits that this information is commercially sensitive to Columbia as it contains confidential customer information. CP argues that if this information was disclosed, it would cause harm to Columbia and to the relationship between CP and Columbia. CP states that the information from the table is summarized in the paragraph above the table. Further, the public interest in its disclosure does not outweigh the specific direct harm as the information was provided to explain CP’s rationale for using embargoes and permits and that its rationale is being disclosed, and as an example of “CP’s high level of service.”

CP identifies as confidential a table containing information regarding the transfer of liability (TOL) figures for terminals located on the North Shore, found on page 10 of its answer. CP states that the table contains competitive and commercially sensitive information relating to various terminals and receivers on the North Shore. CP submits that the disclosure of this information would cause harm to the terminals and shippers that are listed and would harm CP’s relationship with them. CP states that the public interest in the disclosure of this information does not outweigh the specific direct harm that would result as CP provided the information as an example of its level of service provided from October 2018 to January 2019.

CP also identifies as confidential, information pertaining to its infrastructure projects, found on pages 13 to19 of its answer and Appendix G. CP maintains that the information outlines planned capital investment and infrastructure projects and is considered “commercially sensitive, strategic information” which, if disclosed to its competitors, would cause CP harm. CP submits that this information is confidential as it contains information related to “strategic expansion by Cascadia, Columbia Containers, Pacific Coast Terminals and Shelburn Terminals” (together, businesses). CP states that the disclosure of this information would cause harm to the businesses and also harm CP’s relationship with them. CP argues that the public interest in disclosing this information is “limited” and does not outweigh the specific direct harm that would result to the businesses and to CP.

Finally, CP argues that Appendix E: Correspondence with Alliance Grain Terminal Ltd. and Cascadia Port Management Corporation (Appendix E) should be treated as confidential. CP submits that the correspondence contains “confidential customer information”, which includes “operational capacity and statistics.” CP argues that this information is commercially sensitive and that its disclosure would cause harm to the shippers and to their relationship with CP. CP submits that the main points from the correspondence are summarized in the non-redacted paragraphs on page 8 of its answer. CP argues that the public interest in its disclosure does not outweigh the specific direct harm that would result if the information was made public as CP provided the information as an example of its level of service provided from October 2018 to January 2019.

THE TEST

Within a dispute adjudication process, section 31 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) addresses requests for confidentiality. In that context, the Agency has consistently applied the same test in considering a request for confidentiality during dispute proceedings, specifically:

[…] the first step in determining whether a confidentiality request should be granted is determining whether the document is relevant to the dispute proceeding. The second step is to determine whether specific direct harm would likely result from the disclosure of the information claimed as confidential. The third step is to determine whether the public interest in having the document disclosed outweighs the specific direct harm demonstrated.[1]

The Agency has consistently held that the party seeking an order for confidentiality is the one that bears the burden of establishing that specific direct harm would likely result from the disclosure of the information.

ANALYSIS AND DETERMINATIONS

As noted in the first and second decisions on confidentiality, in this investigation, the Agency will apply the same test as that used in the context of dispute adjudications to CP’s request for confidentiality.

With respect to the first step of the test, given that the Agency, in Decision No. LET-29-R-2019, directed CP to answer questions about: its level of service; use of embargoes; and improvements to railway infrastructure in the Vancouver area, the Agency finds the first step of the test is met. That is to say, the Agency finds that the information identified as confidential is relevant to its investigation.

The second and third steps of the test will be considered for CP’s request.

For the reasons set out below, the Agency grants CP’s request for confidentiality. Accordingly, the information will not be made publicly available, nor will it be provided to the other participants.

In the second decision on confidentiality, the Agency granted CP’s request with respect to the average railcar data for Columbia; therefore, that information is already being treated as confidential. Columbia’s daily unload statistics found in Appendix C and summarized on page 9 of CP’s answer contains daily information from October 2018 to January 17, 2019 on the numbers of cars requested, cars spotted, spot times, pull times, and number of cars unloaded. The Agency finds that this information is commercially sensitive and therefore its disclosure would likely cause Columbia and CP specific direct harm. In addition, the Agency finds that the public interest in its disclosure does not outweigh the specific direct harm as the information was provided only to illustrate CP’s rationale for using embargoes and as an example of its level of service from October 2018 to January 2019.

The table containing information regarding TOL figures for terminals located on the North Shore identifies various terminals and receivers along with TOL figures and relates to two of CP’s three embargoes in the Vancouver area over the investigation period. The Agency finds that this information is commercially sensitive and therefore its disclosure would likely cause the terminals and shippers specific direct harm. The Agency finds the public interest in disclosing this information does not outweigh the specific direct harm that would result as the information, in aggregate, has been disclosed.

CP infrastructure projects and Appendix G provides details about specific planned capital investment, infrastructure and expansion projects for CP and other businesses. The Agency finds that this information is commercially sensitive and if disclosed, would cause harm to CP and all businesses mentioned in the information. Further, the Agency finds that the public interest in the disclosure of this information does not outweigh the specific direct harm that would result.

Appendix E provides information regarding Alliance Grain Terminal Ltd. And Cascadia Port Management Corporation’s operational capacity and statistics. The Agency finds that this information is commercially sensitive and its disclosure would cause harm to both Alliance Grain Terminal Ltd. and Cascadia Port Management Corporation. In addition, the Agency finds that the public interest in its disclosure does not outweigh the specific direct harm that would result as the information was provided as an example to explain CP level of service provided from October 2018 to January 2019.