Practice Directives

Confidentiality

General

[1] The Chief Review Officer and the Review Officers have a statutory mandate to prevent trade secrets and other confidential information from being disclosed or made public as a result of being used as evidence in a review. Section 23 of the Rules of Procedure sets out the process for the treatment of confidential documents. The Environmental Protection Tribunal of Canada ("Tribunal") has developed internal procedures to ensure that confidential documents remain confidential and are separated from the public file to prevent accidental disclosure.

[2] Rule 23 states:

Designating Information as Confidential

[3] Generally speaking, the responsibility for designating information as confidential belongs to the party filing the information. The opposing party may also assert a claim for confidentiality where that party's interests are affected.

[4] Information for which a confidentiality claim is being made must be clearly marked, with an effort to sever and identify portions for which confidentiality is not required, if possible.

[5] Where a party has made a claim for confidentiality, the claim must be accompanied by a thorough and convincing explanation of why confidentiality is justified. The claim must be in sufficient detail to allow the presiding Review Officer to determine the issues at stake, including the likelihood and severity of the harm that would occur as a result of the disclosure of information sought to be held in confidence. For example, it will not be sufficient to merely make a broad statement such as "We will be hurt competitively." Nor will it be sufficient for the party simply to mark documents as "Confidential." The Review Officer will expect to receive explanations dealing with such matters as the importance of the information to the person asserting confidentiality, the treatment of that information by that person in the course of business, the availability of that information in other fora, as well as a realistic assessment of potential harm.

[6] The party making a claim for confidentiality must file a summary of the information or an edited version that will be placed on the public record. The summary or edited version must be sufficiently detailed to provide an evidentiary base for the claim being supported by the confidential filing.

Determination by the Review Officer

[7] The presiding Review Officer may decide that a claim for confidentiality is not justified. If the Review Officer decides that a document should be placed on the public file, the party claiming confidentiality will be notified. The party will have an opportunity to provide additional explanations of why the information should be treated as confidential. The party may also choose to withdraw the disputed document. In that case, the information will not form part of the record and it will not be considered by the Review Officer in his or her deliberations, unless received from another source.

[8] Where a party or intervenor, if any, challenges the confidentiality designation of information, the Review Officer will hear representations from the parties and other interested persons. The statutory language and the case law arising from the Access to Information Act and the Privacy Act will inform the Review Officer's decision, but considerations of fairness and natural justice, as well as the public interest, will also be determinative in the context of a quasi-judicial hearing.

Declarations and Undertakings

[9] Rule 24 states:

[10] Counsel may request access to information filed by the other party in confidence. Counsel will be required to submit a Declaration and Undertaking in the form determined by the Tribunal; this constitutes a binding undertaking not to disclose any confidential information received, including disclosure to the counsel's client. The other party may object to a request by counsel for access to confidential information. The presiding Review Officer may grant or deny access on such terms as the Review Officer considers reasonable. Counsel may not make copies of any confidential information to which they are granted access without the Review Officer's permission.

[11] All confidential material and notes relating to confidential material in the hands of counsel or expert witnesses who have signed Declarations and Undertakings will be returned to the Tribunal offices on the completion of the proceedings. The purpose of this provision is to ensure that as little confidential material as possible is stored outside of the control of the Tribunal.

[12] Confidential documents, exhibits and other information will not be sent to counsel by electronic means. Where electronic information is provided, counsel will be asked to provide in their Declaration and Undertaking a statement regarding the safeguarding of electronic information and an undertaking to delete all information from computers and networks.

In Camera Proceedings

[13] Rule 25 states:

[14] As a general rule, the hearings of a Review Officer will be open to the public. A person seeking confidential treatment of information, however, may seek to have any determinations on the issue of confidentiality treated in camera. Furthermore, where after hearing representations, a Review Officer determines that information shall be treated as confidential, the portion of the hearing relevant to that information will be held in camera.

[15] Where the Review Officer agrees to hold the hearing in camera, persons who are not authorized to hear discussions of potentially confidential matters will be asked to leave the hearing. Only those persons providing the information and those persons, e.g., counsel and expert witnesses, who have signed Declarations and Undertakings, will be allowed to remain in the hearing. When the discussion of confidential matters has ended, the hearing will re-open to the public.

Responsibilities of the Tribunal and Review Officers

[16] The Tribunal will maintain separate confidential and public files. The public files will contain summaries or edited versions of the confidential material. The recordings of the in camera portions of the hearings will be kept separate from the recordings of the public hearing and will be kept as part of the separate confidential file. As little confidential material as possible will be stored after the appeal period by the Tribunal.

[17] Review Officers will not disclose confidential information that comes into their possession as Review Officers.

Return of Confidential Material

[18] The Tribunal will return confidential material to the submitting parties after the time for any appeal to the Federal Court has passed according to the provisions of the Federal Court Act. Summaries and edited versions of documentary material will remain with the record of the review in the files of the Tribunal. Where an appeal has been filed, the confidential material will form part of the record sent to the Court and will not be returned to the submitting party in order to maintain a complete record at the offices of the Environmental Protection Tribunal of Canada until the appeal process has been completed.

Stay Application

Application for an Interim Stay or Stay of a Compliance Order

[1] A person subject to a Compliance Order may apply, pursuant to section 258 of the Canadian Environmental Protection Act, 1999, for an order staying (i.e., suspending) the Compliance Order. In urgent situations, that person may also apply for an interim stay of the Compliance Order pending the hearing of the application for a stay. An application for an interim stay or stay must be made before the commencement of the review hearing.

[2] An application for an interim stay or stay ("application") should, subject to any direction from the Environmental Protection Tribunal of Canada ("Tribunal"), be in writing setting out the grounds on which it is sought. An application must be served on the Minister of Environment and Climate Change at the same time it is sent to Tribunal.

[3] Applications must be supported by affidavit evidence and address the following:

1. Whether there is a serious issued to be decided by Tribunal;
2. Whether irreparable harm will be suffered by the applicant if an interim stay or stay is not granted;
3. Whether the balance of convenience, including effects on the public interest, favours granting an interim stay or stay.

[4] The Minister may file affidavit evidence in reply, addressing, in addition to any other matter that the Minister considers relevant, the three matters listed in the preceding paragraph.

[5] Cross-examination on the affidavit material may take place before a Review Officer. The Review Officer may limit the scope of cross-examination to only those issues that are relevant to the disposition of the application. In the ordinary course, and subject to any direction to the contrary from the Review Officer, oral submissions on the application for a stay will take place immediately following the completion of cross-examination. The Review Officer, in his or her discretion, may order that interrogatories, if any, and submissions be made in writing.

[6] An applicant must, as soon as possible after the filing of a request for a review, arrange for a conference call with the Tribunal and the Minister to obtain direction as to the form and content of the application, the necessary supporting materials, the scheduling of dates for the cross-examination of witnesses, and the scheduling of the hearing of the application for a stay.

[7] Oral submissions, if any, with respect to the merits of the applications may be made by conference call. In certain circumstances the hearing may be dealt with through written material only.

[8] Where the circumstances warrant, an application for an interim stay may be granted prior to the filing of affidavit material.